Introduction This essay will seek to prove that defendants have not lost the right to defend themselves

at trial. There are five gateways that the defendant can get his/her evidence to be admitted through section 41 of the Youth Justice and Criminal Evidence Act 1999 introduced these gateways. In this essay I will look at the different ways that the defendant can get his/her evidence admitted at trial. This essay will also look at the arguments by academics who agrees that defendants are losing their right to a fair trial. Arguments Disagreeing That the Defendant has Lost his Right to a Fair Trial. I do not agree with the statement that the defendant accused of a sexual offence has effectively lost the right to defend himself at trial. This is because there are five gateways and if the defendant has not gotten his evidence in through another of the gateways. Section 41 doesnt give judges any discretionary power to widen the gateways; so that it does not give rise to the twin myths which is defined by the case of R v Seaboyer, that unchaste women were more likely to consent to intercourse and in any event were less worthy of belief. Section 2 of the Sexual Offences (amendment) Act1976 (will now be referred to as the SOA 1976) gave judges discretionary power and that gave rise to the twin myths and many defendants were found not guilty because of this. This is one of the problems of section (2) of the Sexual Offences Act and the reason that it was replaced by the Youth Justice and Criminal Evidence Act 1999. Mr. Kibble agrees with the limitation of the judges discretionary power when he stated that, Nevertheless, by imposing real restrictions on the way in which judges deal with evidence of the complainant's sexual behaviour, and by requiring open and reasoned argument and decision-making on the question of its relevance to issues at trial, the provisions have been a positive and significant intervention.1 The case of Re A dealt with the issue of the right to a fair trial and showed that if the evidence did not go through one gateway it can go through another gateway. In this case the was accused of raping the claimant but he sought to give evidence that she had sexual intercourse with him one week before the alleged rape. The defendant also sought to give evidence that the claimant had sexual intercourse with one of his friends shortly before the alleged rape. The judge gave him leave to give the evidence pertaining to his friend and the claimant sexual intercourse but not pertaining to the defendant and the claimant. The judge said that the defendants evidence pertaining to his and the claimants sexual intercourse could not be admitted under section 41 (3) (b). However the court of appeal reversed this decision and allowed only the evidence pertaining to the defendant and the claimant sexual intercourse.

Neil Kibble, The sexual history provisions: charting a course between inflexible legislative rules and wholly untrammelled judicial discretion? Criminal Law Review 2000.