| Summary: | This study constitutes the largest empirical study of the use of previous sexual behaviour evidence in sexual offence trials in the courts of England and Wales ever conducted. It is impossible to understand how such evidence is handled in trials merely from reading reported judgments, because these reflect only cases which the defence has appealed to the Court of Appeal on the basis that such evidence was wrongly excluded by the trial judge, since the prosecution does not have an equivalent right to seek leave to appeal. The data collected from criminal barristers examines, in depth, 377 cases involving 565 complainants, which proceeded to trial in 105 Crown Courts centres in the 24 months immediately prior to November 2017. This study is unique in collecting data on applications to use previous sexual behaviour evidence in respect of all sexual offences, not just rape, and without any restrictions on complainants as to gender or age. Many children and adolescents feature in the sample. So too do many historical complaints, and many cases involving multiple complainants. The data was collected from the barristers who had prosecuted and defended in the case sample, and who had an indepth knowledge of the evidence in the case and how decisions were made under section 41, including agreements between counsel to adduce the evidence sought in other forms, thereby averting the need to confront the complainant with it. The study also examined compliance with the procedural requirements of section 41 applications.
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