R v A (No.2) [2001] UKHL 25

Key points

  • The interpretative obligation under s3 HRA 1998 allows for both reading down of express words and the implication of words in the statute
  • The declaration of incompatibility under s4 HRA is a measure of last resort that must be avoided unless a compatible interpretation is impossible due to express words that restriction Convention rights


  • D, accused of rape, sought questioning of the complainant’s previous relationship and sexual activity
  • Such questions as relating to the victim’s sexual behaviour are prevented by s41(3)(c) Youth Justice and Criminal Evidence Act 1999
  • D appealed to the Court of Appeal, arguing that the section breaches the right to a fair trial under article 6 ECHR
  • The Court of Appeal allowed the appeal, concluding that evidence regarding the victim’s sexual activity is relevant as to the complainant’s consent and thus should not be excluded
  • During the Crown’s appeal to the House of Lords, D argued that the House should interpret section 41 in accordance with s3 HRA or issue a declaration of incompatibility under s4 HRA, resulting in the Secretary of State’s intervention

Held (House of Lords)

  • Appeal dismissed; admissibility of evidence regarding sexual activity to be determined by the trial judge based on a broad interpretation of s41(3)(c) under which questions relating to the victim’s sexual behaviour is not

Lord Steyn

Interpretative obligation under s3 HRA: [44]

  • Under ordinary principles of interpretation, express words may be departed from if it leads to absurd consequences, the obligation under s3 goes further
  • Furthermore, a general principle of interpretation is that text is the primary source of interpretation and other sources are subordinate, under s3 the statute is subordinate to the ECHR
  • It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings
  • Under s3, courts do not have to be a ‘reasonable’ interpretation that is compatible with the ECHR, merely a ‘possible’ one
  • The interpretation can be ‘linguistically strained’
  • ‘The techniques to be used will not only involve the reading down of express language in a statute but also the implication of provisions.’

Relationship of s3 and s4 HRA: [44]

  • In the progress of the Bill through Parliament the Lord Chancellor observed that ‘in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility’
  • ‘A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to [apply s3]’, such an impossibility arises when ‘​​a clear limitation on Convention rights is stated in terms’: citing Simms

Current case

  • It is possible under section 3 to read section 41, and in particular section 41(3)(c), as subject to the implied provision that evidence or questioning which is required to ensure a fair trial under article 6 of the Convention should not be treated as inadmissible: [45]
  • The test for admissibility of the victim’s sexual past “is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the convention”: [46]

Lord Hope

  • Under the interpretative obligation in s3 HRA 1998, ‘compatibility is to be achieved only so far as this is possible… Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible’: [108]