The Court Martial and Service Civilian Court (Youth Justice and Criminal Evidence Act 1999) Rules 2009

Evidence of a complainant’s previous sexual behaviour

8.—(1) An application for leave under section 41(2) of the 1999 Act must, except where paragraph (13) applies, be made in writing to the court administration officer and must—

(a) in relation to proceedings before the Court Martial, either—

(i) be received by that officer within 28 days of—

(aa) that officer giving notice in writing of the time and place appointed for the hearing of the proceedings in accordance with Court Martial Rules, or

(bb) the lodging of a notice of appeal against conviction or sentence by the Service Civilian Court in accordance with Court Martial Rules,

or within such period as the judge advocate may in any particular case determine; or

(ii) be accompanied by a full written explanation specifying the reasons why the application could not have been made within the 28 days mentioned above;

(b) in relation to proceedings before the Service Civilian Court, either—

(i) be received by that officer within 28 days of that officer giving notice in writing of the time and place appointed for the hearing of the proceedings in accordance with SCC Rules or within such period as the judge advocate may in any particular case determine; or

(ii) be accompanied by a full written explanation specifying the reasons why the application could not have been made within the 28 days mentioned above.

(2) Such an application must—

(a) identify the issue to which the defendant says the complainant’s sexual behaviour is relevant;

(b) give particulars of—

(i) any evidence that the defendant wants to introduce; and

(ii) any questions that the defendant wants to ask;

(c) identify the exception to the prohibition in section 41 of the 1999 Act on which the defendant relies; and

(d) give the name and date of birth of any witness whose evidence about the complainant’s sexual behaviour the defendant wants to introduce.

(3) A copy of the application must be sent to all the other parties to the proceedings at the same time as it is sent to the court administration officer.

(4) Where a copy of the application is received by the Director more than 14 days before the date set for the trial to begin, the Director must, within 14 days of the receipt of the application, notify the other parties to the proceedings and the court administration officer in writing whether or not—

(a) he opposes the application, giving reasons for any such opposition; and

(b) he wishes to be represented at any hearing of the application.

(5) Where a copy of the application is received by a party to the proceedings other than the Director more than 14 days before the date set for the trial to begin, that party may make observations in writing on the application to the court administration officer, but any such observations must be made within 14 days of the receipt of the application and be copied to the other parties to the proceedings.

(6) In considering any application under this rule, the judge advocate may request a party to the proceedings to provide him with such information as he may specify and which he considers would assist him in determining the application.

(7) Where the judge advocate makes such a request, the person required to provide the information must do so within 14 days of the judge advocate making the request or by such time as the judge advocate considers appropriate in the circumstances of the case.

(8) An application under paragraph (1) must be determined by the judge advocate following a hearing if—

(a) the Director has notified the court administration officer that he opposes the application; or

(b) the copy of the application was received by any of the parties to the proceedings less than 14 days before the date set for the trial to begin.

(9) An application under paragraph (1) must be determined by the judge advocate following a hearing in any case where he considers such a hearing is appropriate in the circumstances of the particular case.

(10) The date and time of the hearing must be—

(a) determined by the judge advocate after taking into consideration—

(i) any time which a party to the proceedings has been given to respond to a request for information; and

(ii) the date fixed for any other hearing relevant to the proceedings; and

(b) notified by the court administration officer to all the parties to the proceedings.

(11) Except where paragraph (8) or (9) applies, an application under paragraph (1) must be determined by the judge advocate without a hearing.

(12) The court administration officer must, as soon as possible after the determination of an application made in accordance with paragraph (1), give notice of the decision and the reasons for it to all the parties to the proceedings.

(13) An application for leave under section 41(2) of the 1999 Act may be made orally where the application is made after the trial has begun.

(14) The person making the application under paragraph (13) must—

(a) give reasons why the applicant failed to make the application in writing in accordance with paragraph (1); and

(b) provide the judge advocate with the information set out in paragraph (2)(a) to (2)(d).