Statute Details
- Title: Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018
- Act Code: EA1893-R1
- Legislative Type: Subsidiary legislation (SL)
- Authorising Act: Evidence Act 1893 (notably linked to section 154A)
- First Made: 31 October 2018 (SL 726/2018)
- Amendments: Amended by S 257/2022 (effective 1 April 2022)
- Current Revised Edition: 2024 Revised Edition (18 December 2024)
- Current Version Status: Current version as at 27 March 2026
- Key Provisions (from extract): Rule 2 (Definition of “sexual behaviour”); Rule 3 (Restrictions on questions and evidence); Rule 4 (Application for permission of court)
What Is This Legislation About?
The Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 (“the Rules”) introduce targeted limits on how an accused person may question, and what evidence may be adduced, in criminal proceedings involving sexual offences or child abuse offences. In practical terms, the Rules are designed to reduce the risk that complainants (referred to as “alleged victims”) are subjected to invasive or prejudicial lines of questioning about their sexual history or physical appearance, unless the court permits it.
These Rules operate as an evidential safeguard. They reflect a policy judgment that evidence or questioning about an alleged victim’s sexual behaviour should not be used as a general “character attack” or to imply consent or unreliability merely because of past sexual conduct. Instead, the Rules require judicial permission before such material can be raised during cross-examination or introduced as evidence by or on behalf of the accused.
Although the Rules are procedural in form (they are “Rules”), their effect is substantive in courtroom practice: they shape what questions counsel can ask and what categories of evidence can be tendered. They also create a specific court process for deciding whether permission should be granted, including a hearing in the absence of the alleged victim.
What Are the Key Provisions?
1. Definition of “sexual behaviour” (Rule 2)
Rule 2 defines “sexual behaviour” for the purposes of the Rules. The definition is broad enough to capture a wide range of sexual conduct and experiences, but it is also carefully bounded to avoid capturing matters that are directly part of the charged incident.
Under Rule 2(a), “sexual behaviour”, in relation to an alleged victim, means any sexual behaviour or other sexual experience of the alleged victim involving any person other than the accused charged with the offence. This means the focus is on sexual conduct with third parties, not the accused.
Rule 2(b) excludes anything alleged to have taken place as part of the event that is the subject matter of the charge. This is crucial: it prevents the Rules from being used to block evidence about what happened during the alleged offence itself. In other words, the Rules target “other” sexual history/experiences, not the core facts of the charge.
2. Restrictions on questions and evidence (Rule 3)
Rule 3 applies where the accused is charged with committing a sexual offence or a child abuse offence. The Rules then impose two main restrictions—one on questioning and one on evidence.
Rule 3(a): restriction on cross-examination questions
Except with the permission of the court, no question may be asked of the alleged victim during cross-examination by or on behalf of the accused about:
- the alleged victim’s sexual behaviour; or
- the alleged victim’s physical appearance.
This is a significant limitation on defence advocacy. It means that counsel must obtain prior permission before pursuing lines of questioning that touch on sexual history or physical appearance. The restriction applies specifically “during cross-examination” by or on behalf of the accused, which is where such material is most likely to be used to undermine credibility or suggest consent.
Rule 3(b): restriction on adducing evidence
Similarly, except with the permission of the court, no evidence may be adduced by or on behalf of the accused about the alleged victim’s sexual behaviour or physical appearance. This covers not only oral testimony but also other forms of evidence (for example, documents or other material) that attempt to introduce sexual history or appearance-related facts.
From a practitioner’s perspective, the distinction between “questions” and “evidence” matters. Even if a particular fact cannot be asked as a question, it may still be prohibited if it is introduced as evidence. Conversely, a fact might be elicited indirectly through another witness or document—if it is about sexual behaviour or physical appearance, Rule 3(b) may still be engaged.
3. Permission application and the interests of justice test (Rule 4)
Rule 4 sets out the procedure and the standard the court applies when considering permission under Rule 3(a) or Rule 3(b).
Rule 4(1): hearing in the absence of the alleged victim
An application for permission is to be heard in the absence of the alleged victim. This procedural requirement is designed to protect the alleged victim from having to sit through arguments about sensitive sexual-history or appearance material. It also supports a more controlled judicial assessment of relevance and necessity.
Rule 4(2): permission only if it would not be in the interests of justice to disallow
The court may grant permission only if it would not be in the interests of justice to disallow the asking of the question or the adducing of the evidence. This formulation is effectively a threshold test: permission is the exception, not the default.
While the Rules do not list factors, the “interests of justice” language typically requires the court to weigh competing considerations, such as:
- the relevance and probative value of the proposed question/evidence;
- the risk of prejudice, humiliation, or unfairness to the alleged victim;
- whether the material is necessary for the defence case (as opposed to being merely collateral); and
- whether less intrusive alternatives exist.
Practically, counsel seeking permission should be prepared to articulate why the material is genuinely necessary to address an issue in dispute (for example, a specific credibility issue grounded in the defence theory), rather than relying on general “sexual history” narratives.
How Is This Legislation Structured?
The Rules are structured as a short set of procedural provisions. Based on the extract and the listed provisions, the Rules contain:
- Rule 1 (Citation): provides the short title.
- Rule 2 (Definition of “sexual behaviour”): sets the scope of the key term, including exclusions for the charged event.
- Rule 3 (Restrictions on questions and evidence): establishes the core prohibitions (questions and evidence) unless the court grants permission.
- Rule 4 (Application for permission of court): provides the procedural mechanism and the “interests of justice” threshold.
Although the extract does not show additional sub-rules beyond Rule 4, the overall design is clear: define the sensitive category, restrict its use, and provide a controlled judicial gateway for exceptions.
Who Does This Legislation Apply To?
The Rules apply in criminal proceedings where the accused is charged with committing a sexual offence or a child abuse offence. The restrictions are directed at how the accused (and counsel acting for the accused) may conduct cross-examination and what evidence may be adduced.
They also protect the alleged victim—the person whose conduct is alleged to form the basis of the charge. The Rules’ procedural protection (Rule 4(1)) ensures that applications to permit sensitive questioning/evidence are heard without the alleged victim present.
Why Is This Legislation Important?
These Rules are important because they directly affect trial strategy and courtroom conduct in sensitive criminal cases. For defence counsel, the Rules require early case assessment: if a proposed line of questioning or evidence touches on sexual behaviour or physical appearance, counsel must consider whether permission will be needed and how to justify it under the interests of justice standard.
For prosecutors and complainant advocates, the Rules provide a structured mechanism to prevent prejudicial questioning and evidence that could distract the court from the central issues. The restrictions help preserve the fairness of proceedings by limiting the extent to which an alleged victim’s sexual history or appearance can be used to suggest unreliability or consent without a strong evidential basis.
From an enforcement perspective, the Rules create a clear procedural expectation: permission must be obtained before the restricted material is introduced. If counsel attempts to ask prohibited questions or tender prohibited evidence without permission, it risks exclusion and potential adverse consequences for trial management. Accordingly, practitioners should treat the permission process as a critical step rather than a formality.
Related Legislation
- Evidence Act 1893 (including the provisions authorising these Rules, referenced in the legislation extract as linked to section 154A)
Source Documents
This article provides an overview of the Evidence (Restrictions on Questions and Evidence in Criminal Proceedings) Rules 2018 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the official text for authoritative provisions.