R v A (No 2)
Section 3 of the Human Rights Act allows the courts to read words into a statute to make it compatible with Convention rights, going beyond ordinary interpretation.
Facts
A was charged with rape. His defence was that the complainant had consented, and he wanted to give evidence of a previous sexual relationship with her, which he said had continued until about a week before the alleged rape. Section 41 of the Youth Justice and Criminal Evidence Act 1999 severely restricted the admission of evidence about a complainant's sexual history, and would have excluded this evidence. A argued that excluding it would breach his right to a fair trial under article 6 of the European Convention on Human Rights.
Legal principle
The House of Lords held that section 41 should be read, using section 3 of the Human Rights Act 1998, as subject to an implied provision that evidence required to ensure a fair trial under article 6 should not be excluded. Lord Steyn said that section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights, and that it may require the court to adopt an interpretation which linguistically may appear strained, including by reading down express language or implying provisions. A declaration of incompatibility is a measure of last resort. The case is regarded as a high water mark of the use of section 3, and was criticised for going too far in rewriting the statute.
Related cases on Human Rights Act 1998
- A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68
- Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546
- Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467
- Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557
- Hirst v United Kingdom (No 2) (2006) 42 EHRR 41
- Manchester City Council v Pinnock [2010] UKSC 45, [2011] 2 AC 104
- R (AB) v Secretary of State for Justice [2021] UKSC 28
- R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] 1 AC 153
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