E v R.

There is an extant order under section 39 of the Children and Young Persons Act 1933 forbidding the publication of any report that would identify the complainants

Mr E was convicted of four counts of indecent assault, committed against his two daughters S and K. The evidence against him consisted of video interviews with the two complainants, who were aged 6 and 4 respectively at the time of the interviews. After these interviews had been taken, the girls went to live with foster parents. As a result of complaints that they made to those foster parents, they were again interviewed on video, some fifteen months after the video interviews that formed the evidence in the trial. In those interviews S alleged that sexual abuse similar to that alleged against the appellant had been committed by her mother; an aunt and uncle; and another aunt and her son. She also alleged physical abuse against an aunt and two other persons. K did not repeat on video previous complaints of sexual abuse, but she alleged physical abuse against some of those mentioned by S, and other people. No-one was interviewed or charged as a result of those allegations.

At the trial Mr Michael Hurst, counsel for Mr E, applied to the judge under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the two complainants about their later allegations; the thrust of his case being that it was wholly implausible that the children would have been abused by so many people; the later allegations were therefore almost certainly a fabrication or fantasy; and that that cast considerable doubt on the veracity of the allegations brought against Mr E. The judge refused that application, on the basis of the 1999 Act as subsequently understood in this court. Mr E says that his being precluded from this line of questioning made his subsequent conviction unsafe.

Section 41(1) of the 1999 Act forbids, without leave, questioning about “any sexual behaviour of the complainant”. By section 41(1) (c) sexual behaviour means “any sexual behaviour or other sexual experience”. What happened to S and K could not be described as sexual behaviour on their part, but it is asserted to have been sexual experience. In a bold argument Mr Hurst, who conducted the appeal with admirable care and discretion, submitted that in the particular case of S and K the experience that they had undergone, deplorable though it was, could not be characterised as a sexual experience. That was because they were too young to have the understanding of sexual matters that would lead them to appreciate the true nature of the experience.

Mr Hurst relied on the wording of the statute, but also in particular on what he said had been the purpose of these provisions. He drew attention to the account of the background to the provision that was given in R v A (No2) [2002] 1 AC 45, in particular by Lords Steyn and Hope of Craighead, both of whom pointed to concerns about conviction rates in cases of rape; and the use of evidence of sexual conduct of doubtful relevance to the issues in the case to attack and humiliate complainants; which was thought to be inspired by the twin myths that unchaste women were more likely to consent to intercourse and in any event were less worthy of belief, citing McLachlin J, as she then was, in Seaboyer (1991) 83 DLR (4^th) 193. Mr Hurst suggested that the cross-examination that he sought fell outside any of those particular areas of concern. We would agree. But it is plain that the House of Lords did not suggest that the Act is limited in its reach to the rape cases that were most influential in securing its enactment, even though it is understandable, in a case that directly raised the issue of consent in rape, that that background would have been referred to. The wording of the Act refutes any such limitation. It is concerned with “sexual offences”, and not just with rape. It cannot be limited to issues of consent, because section 41(3)(a) specifically envisages its application to issues that are not issues of consent. And, more generally, it is very difficult to think that, if the question had been put to it, Parliament would have been content with legislation that protected adult complainants in rape cases, but not juvenile complainants in indecent assault cases.

Granted that the Act does prima facie apply to a case such as the present, what of the meaning of sexual experience? An objective observer, or someone familiar with the ordinary use of the English language, would certainly say that what was experienced by R and K was indeed a sexual experience. The lack of perception of the patient cannot alter that fact. And it would be highly undesirable, and thus highly unlikely that Parliament could have intended, that the law should be otherwise. First, if the application of the Act did depend on the perception of the patient, then many vulnerable people, not just young children but also persons with learning difficulties or the complainants in cases such as Williams [1923] 1 KB 340 or Adcock [2000] 1 Crim App R(S) 563, would lose its protection. Second, Mr Hurst said that it was evident that S and K lacked the relevant perception. Even if that is so, in a case involving children not very much older than S and K such an assumption could not be made. If the law were as the appellant contends, such children would, presumably, have to be examined as to their sexual perceptions and knowledge in order to determine whether the legislation applies to them. We cannot think that that is what Parliament intended.

Granted that the Act prima facie is applicable to the present case, Mr Hurst’s strongest point was drawn from the decision of this court in R v T, that

“normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ‘about’ any sexual behawviour of the complainant. They relate not to her sexual behaviour but to her statements in the past or to her failure to complain.”

The judge applied that rule to permit the cross-examination of S about her failure to mention, indeed a specific denial of, abuse of her, as opposed to abuse of her sister, when she was first interviewed; and inconsistencies between a part of her evidence and one of her later allegations. He however refused to permit the wider cross-examination that Mr Hurst sought.

In so ruling, the judge had in mind guidance given by this court at a later stage of the judgment in T. The court pointed out that the trial judge in that case had been concerned as to how cross-examination of the type that it was minded to permit might develop. If the complainant can be asked about previous or (as in our case) subsequent allegations, she may assert that those allegations were indeed true. The court considered that the questioner would be bound by that answer, relying on R v S [1992] Crim LR 307; but that even on that basis (see § 40 of the judgment)

“the very problem, or one of the problems, which the 1999 Act was intended to guard against, could be created: her reputation in the eyes of the jury might well be severely injured and the deterrent effect on other potential complainants in sexual cases would continue to operate”

We may venture to comment that the decision of this court in S did not depend on the normal rule that an answer as to credit is final, but left the matter as one of discretion, albeit a discretion only to be very sparingly exercised: so it cannot necessarily be assumed that courts in the future may not be invited to apply the analysis stemming from Funderburk (1990) 90 Cr App 466 to purely collateral issues. But, even leaving that concern aside, the threat posed to the objectives of the Act by investigation of other complaints remains very real.

This court in T provided a solution, at §41 of its judgment:

“the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements are not met, then the questions would not be about lies but would be ‘about [the] sexual behaviour of the complainant’ within the meaning of section 41(1). The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue.”

That requirement met in T. It was not met in the present case. Because none of the later allegations had been investigated, there was no evidence that they were untrue. Mr Hurst said that by their extensive nature they were simply implausible, and could properly be represented to the jury as such. But he also agreed that, in order to start on that road, he would have to do what he applied to the judge to do, and put the allegations to the complainants. And, having done that, he would have to ask them of the allegations’ truth or falsehood: the very course that this court in T said should be avoided. And this case is more extreme than the situation envisaged in T, where all that was in issue would have been an allegation by the complainant of previous (lawful) intercourse. Here, what is in issue is criminal conduct by named third parties. If the cross-examination elicited assertions by S and K that their subsequent complaints had been true, then the court would be faced with the dilemma of either letting those allegations to stand unanswered; or descending into factual enquiries with no obvious limit and wholly collateral to the issue in the case.

The judge was therefore right to exclude this cross-examination, for the reasons given in T. Further, if we may be permitted to say so, this case demonstrates the wisdom of that ruling, as a particularly clear example of the confusion that any other approach would cause in the conduct of a trial.

The effect of the judge’s ruling in the present case was therefore not, as in T, that the 1999 Act did not apply to the particular questions sought to be asked; but that it did apply to those questions, because the foreseeable outcome of the questions was further questioning as to the complainants’ sexual behaviour. The exclusion of the questioning therefore involved issues under article 6 of the ECHR, such as were considered by the House of Lords in A. This aspect of the case was raised before the judge, but was only lightly touched on before us (the point was not mentioned either in the Grounds or in the appellant’s skeleton argument). Nonetheless, we need to deal with it.

In A the House of Lords, while stressing the general importance of the fair trial provisions of article 6, was concerned with the difficulties caused by the apparent prohibition by section 41(3)(c) of questioning about a prior consensual sexual relationship between the accused and the complainant, an issue that was or at least was potentially relevant to the accused’s defence of consent or belief in consent. In our case, we are concerned with questioning the purpose of which is to impugn the credibility of the complainants, a line of questioning in respect of which section 41(4) forbids the judge from giving permission. Althugh A, or so far as we are aware in any other authority, does not decide whether and to what extent section 41(4) is compatible with the requirements of article 6, we do have the benefit of the observations on that section of Lord Hope of Craighead in A.

In §§ 91-95 of his speech Lord Hope emphasised that, within the absolute right to a fair trial, article 6 does not give the accused an absolute and unqualified right to put whatever questions he chooses. The critical question is proportionality: if limitations are placed on questioning, those limitations must strike a fair balance between the general interest of the community and the protection of the individual. Lord Hope thought, at §95, that where the objective was to impugn credibility the defendant could not in any event object to a limitation on questioning on sexual behaviour, because no inferences as to the complainant’s credibility can be drawn from sexual behaviour on other occasions. Our case does not yield quite that simple answer, because the questioning in our case is excluded not because it is sought to show that the complainants lack credibility because of their sexual behaviour; but because investigation of the implications for their credibility of their subsequent complaints inevitably leads to investigation of their sexual behaviour. However, applying the general principles set out by Lord Hope, we have no doubt that the outcome in this case is proportionate and consistent with the ECHR.

The court in T recognised and accepted that section 41(4) did not exclude investigation of previous, or subsequent, complaints. It offered a method whereby that could be done whilst maintaining the important values of protecting vulnerable witnesses from intrusive or irrelevant questioning; avoiding speculation; protecting the interests of third parties; and containing the trial within manageable limits. It is only because those requirements as laid down in T are not met in this case that the prohibition of the questioning, and thus the potential inconsistency with the ECHR, arises at all.

Furthermore, this case provides a particularly forceful and specific illustration of why the general approach in T is legitimate and necessary in the interests of proportionality. Precisely because there was no evidence of the falsity of the further complaints, it was impossible for the court to know or even to speculate as to where the enquiry into the girls’ allegations might lead: or whether, if the matter were fully investigated, it would advance the appellant’s case. That is exactly the difficulty posed by collateral enquiries into issues of credibility, and the reason why in general terms courts will not embark upon such enquiries. But, quite apart from the general need to keep the trial within reasonable bounds, such an enquiry would in this case effectively require the girls to undergo an investigation, conducted on an unclear and unformulated basis, into other occasions of alleged abuse, just for the speculative hope of establishing something that might add to the significant matters relating to their credibility that the judge had permitted to be adduced. We are entirely clear that the ECHR rule of proportionality excludes any such exercise.

Mr Mann QC pointed out that the material relied on in this case was significantly different from that used in other cases. All the discussion in the cases is of the relevance of earlier false or allegedly false allegations. Here, the supposedly false allegations had only been made, or at least only been formally made, fourteen months after the making of the allegations that were in issue in the case. He questioned the extent to which, even if the evidence had been admitted, it would have been or could properly have been useful to the jury in assessing the credibility of the earlier allegations.

We see force in that argument. If the evidence were admissible, consideration would have to have been given to whether it should be admitted, and whether, if admitted, it could have assisted the jury. In the event, however, we do not need to pursue that enquiry. This appeal is dismissed in any event.