Admitting Evidence of Homosexuality in Trials Involving Serious Sexual Offences: Highlighting the Issue with Judicial Directions as a Panacea to Prejudice

The abolition of the previous common law/statutory regime for admitting bad character evidence (BCE) and consolidation of the law into the Criminal Justice Act 2003 (CJA 2003) brought into existence a definition of BCE that requires ‘reprehensible behaviour' or the commission of an offence so any evidence suggesting homosexuality on the part of a defendant must be dealt with outside of the statutory regime (where the conduct is not illegal/the commission of an offence). This is undoubtedly positive but is not without consequences for the admissibility of homosexuality. The case analysis herein reveals that only conviction-based evidence of homosexuality benefits from the admissibility safeguards that complement the gateways to admissibility of BCE within the CJA 2003 and promote fairness/consistency in approach. The common law requires relevance and is not without an exclusionary discretion, but insights gained herein suggest this rarely keeps evidence of homosexuality out of the trial where it has any explanatory value or prevents jury speculation/being misled as to the defendant’s family life. With respect to non-conviction-based evidence of homosexuality, the article identifies one significant theme emerging in the existing case law - an emerging over-reliance upon the jury direction as a means of reducing prejudice brought about by admission. The article identifies shortcomings in the current approach that result in under-utilisation of guidance on what the content of such a direction should be despite its inclusion in the Crown Court Compendium and despite identification of an ideal template in the case of IJ [2011] EWCA Crim 2734. The availability of suggested templates for reform in the apposite section of the Crown Court Compendium suggests further action is needed, and the article draws upon jurisdictions such as Victoria and Scotland in support of an argument for legislative intervention, mandating inclusion of the compendium guidance in (existing or new) legislation to ensure such guidance is provided to a jury in order to assist them in reconciling evidence of this kind.