Sexual Behaviour Evidence in the Court of Appeal (Criminal Division): Presenting the need for reform

This article presents the first comprehensive empirical study of Court of Appeal judgements concerning the operation and application of section 41 of the Youth Justice and Criminal Evidence Act 1999, which regulates the admissibility of sexual behaviour evidence (SBE) in England and Wales. In doing so, this study fills an empirical void by analysing 152 judgements in the Court of Appeal (Criminal Division) between 2001 and 2021. The research arrives at an important juncture following publication of the Law Commission's recommendations for reform as outlined in its Report on Evidence in Sexual Offence Prosecutions (2025). Although our recommendations were independently developed, they align, in a broad sense, with the Law Commission's proposals for a structured discretionary model as opposed to the extant law which determines the admissibility of SBE through a strict categories approach to whether the SBE satisfies any (or more) relevance ‘gateways’ and additional restrictions. The article makes three original and significant contributions: first it undertakes the largest empirical exercise of these Court of Appeal judgements; second, it reconceptualises the meaning of ‘sexual behaviour’ as defined in s.42(1)(c) and thirdly it recommends replacing the rigidity and complexity of the current statutory regime with a structured discretion, informed by the overriding objective of dealing with cases justly. We then outline how these empirically justified recommendations enhance the Law Commission's proposals for reform.