AM, R. v

LORD JUSTICE DYSON: On 29th August 2008, at Reading Crown Court, the appellant was convicted by a majority of ten to two of sexual assault. He appeals against conviction by leave of the single judge.

The prosecution case, in brief, was as follows. The complainant and the appellant were neighbours. The complainant's account of the events of 29th March 2007 was as follows. At about three o'clock in the afternoon the complainant, who was about 24 years of age at the time, invited the appellant into her flat for a chat. He had been into her flat three or four times previously. He asked if he could use her toilet. She noticed that he had an erection. When he returned she asked him what was wrong. He took her hand and led her into the bedroom. He dropped his trousers and lay on the bed, exposing his erect penis. He said, "Suck this, you'll like it". He got up and pushed her onto the bed and twisted his legs over her and straddled her chest. She was telling him to get off. He tried to force his penis into her mouth. She tried to push him off her. He continued to try to force his penis into her mouth. She pushed his shoulders and he fell over onto the bed. She stood up and walked towards the door. She tried to open it but he pushed it shut. Eventually she managed to open the door. She told the appellant to leave and he did. She telephoned a friend, FS, and told her what had happened. At about 5.30 that afternoon she also told her sister, KS, what had happened and the police were called.

In brief this was the account that she gave to the jury. FS and KS also gave evidence saying that the complainant had complained to them that she had been sexually assaulted by "Yank" ("Yank" is the nickname of the appellant).

The appellant gave evidence. He said that he did not go into the complainant's flat on 29th March, although he had been to her flat more than ten times. There had been no physical contact between the complainant and himself; in other words, the complainant's account was a fabrication.

The judge was asked on behalf of the appellant to grant leave pursuant to section 41 of the Youth and Criminal Evidence Act 1999 ("the 1999 Act") to cross-examine the complainant and for evidence to be adduced about a previous allegation of rape made by her in 2001 which, it was said, was untrue. The judge refused to grant leave. It is his refusal to grant leave which forms the basis of this appeal.

The relevant law is not in doubt. Section 41(1) of the 1999 Act provides that if at a trial a person is charged with a sexual offence, no evidence may be adduced by or on behalf of the defendant about any sexual behaviour of the complainant without the leave of the court, nor can any question be asked in cross-examination on behalf of the defendant about any sexual behaviour of the complainant without such leave. That is the general rule. Sexual behaviour is defined by section 42(1)(c) as "any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused".

It has been held that a distinction is to be drawn between questions about sexual behaviour itself and questions concerning statements about such behaviour: see, for example, R v BT [2002] 1 WLR 632, [2002] Cr App R 22. Thus, questions about a complainant's previous false complaint of sexual assault or her failure to complain about a previous assault do not relate to her sexual behaviour, but to her past statements or failures to complain. But if there is no proper evidential basis to suggest that the previous complaint was in fact false, it has been held that such question falls within the ambit of section 41.

The first question, therefore, is whether the proposed cross-examination or evidence is about any sexual behaviour of the complainant. If it is not, then leave is not required under section 41 and that is the end of the enquiry so far as the 1999 Act is concerned. If, however, the proposed cross-examination or evidence is about any sexual behaviour of the complainant, then section 41(2) provides that the court may give leave but may not do so unless it is satisfied (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case. Subsection (3) applies if the evidence or question relates to a relevant issue in the case and, inter alia, that issue is not an issue of consent. Subsection (5) is not material to the present case. Subsection (4) provides that for the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose, or main purpose, for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.

The facts relating to the previous allegation of rape are these. On 26th September 2001 the complainant made an allegation to the police that she had been raped at her then home address four months earlier on 19th May 2001. She alleged that an old friend called at her home uninvited. They talked to each other while she sat on her bed. He then tried to kiss her and she told him to get off, but he pushed her onto her back and restrained her by her arms. He told her "I know you want it" and then raped her. She pushed him off and told him to leave, which he then did.

The complainant did not report the alleged incident to the police at the time. She only did so on 26th September, and then only because she was told by a housing officer at Reading Borough Council that she would not be able to be re-housed, which is what she wanted, unless she made a complaint to the police. The complainant told the police that the only reason why she was reporting the alleged incident was in order to be re-housed by the Council and that she would not have reported the matter otherwise. She said that she did not want the matter to be investigated or taken any further and that she would not support any prosecution or attend court. In her witness statement dated 26th September 2001 she said that she did not tell the police in the first place because she was "scared of repercussions, this is because Nathaniel, [the alleged attacker] has a lot of friends that I know and I was scared of what they or Nathaniel would do".

A police memorandum dated 9th October 2001 states:

The appellant had, however, sought help within three days of the alleged incident from her general practitioner, Dr Richards, on 22nd May. Dr Richards made a statement on 3rd October 2001. She said that the complainant came to the surgery in a distressed state. She complained that she had been raped three days earlier by a man she knew in her own flat. She was now bleeding and had abdominal pain. She had sought help from the Family Planning Service on 21st May and had been given post coital contraception. Dr Richards impressed on her the importance of contacting the police and asking for officers who deal with rape victims to advise her. Dr Richards said that the appellant felt unable to do this and seemed reluctant and fearful to take the matter any further. She gave the appellant some sedatives in the form of tablets to help her to sleep.

In summary, that was the material relating to the alleged rape which the judge had to consider when dealing with the section 41 application. There was, however, also an unsigned and undated statement by OS, which includes the following:

Before the judge Miss Selby submitted, first, that the proposed cross-examination about the previous allegation of rape was not about the sexual behaviour of the complainant, but about a previous statement made by her about such behaviour and did not fall within the scope of section 41. Secondly, and alternatively, she submitted that (1) it related to a relevant issue in the case, and that issue was not one of consent; (2) it was not reasonable to assume that the purpose, or principal purpose, for which it would be adduced was to establish or elicit material for impugning the credibility of the complainant as a witness; and (3) a refusal of leave might have the result of rendering unsafe a conclusion of the jury on a relevant issue in the case.

As regards the first submission, counsel drew the judge's attention to the decision of this court in R v Garaxo [2005] Crim LR 833 and submitted that the facts of the two cases were not materially distinguishable from each other. In Garaxo this court held that the trial judge should have allowed cross-examination of the complainant in relation to two previous complaints which were asserted to be false. Further, it was submitted that there were similarities between the circumstances of the index offence and the previous alleged incident and the motivation for making the complaints.

The second submission was that the evidence or cross-examination sought to be introduced was not relevant to the issue of consent and would not be introduced to establish or elicit material for impugning the credibility of the complainant as a witness, but rather for the purpose of rebutting her account. It was said that it went to the central issue in the case.

The judge accepted the submissions made on behalf of the prosecution. He said that there was no proper evidential basis for the assertion that the complainant's allegation of rape in 2001 was untrue. In reaching this conclusion he said that he took into account the statement of OS. The judge interpreted the reference in that statement to the complainant's ex-boyfriend as being a reference to the appellant. He may well have been wrong about that, but it seems to us that this error, if error it was, was of little significance to the judge's reasoning since he said that OS's statement had to be treated with the greatest possible caution - it was produced to the court and the police on the first day of the trial; the police had had no opportunity to verify its contents; the main part of the statement was hearsay or double hearsay and opinion. The judge said that the statement had little evidential value. He then said that Garaxo could be distinguished on the facts because the complainant in that case was a self-confessed crack addict, whereas the complainant in the present case was of good character. There were other distinguishing features, he said. As to the facts of the present case, he said:

As regards the second issue, the judge said that the main question was whether the complainant had fabricated her account and thus whether her credibility was in issue. It was reasonable to assume that the purpose, or principal purpose, for cross-examining the complainant about the 2001 allegation would be to undermine her credibility. Although the judge said that he reached this conclusion "for the reasons I have already given", it is not clear to us what these reasons were. However, he said that section 41(4) applied and leave would be refused.

Miss Selby submits that the judge erred in several respects. First, he was wrong to hold that the proposed questioning amounted to questioning about the complainant's sexual behaviour in that (1) he was wrong to distinguish Garaxo and (2) he adopted too stringent a test when assessing the previous allegation by the complainant in that he considered it necessary that the allegation be demonstrated to be untrue. The correct test was whether there was an evidential basis on which it would be open to the jury to conclude that the allegation was untrue.

Secondly, the judge erred in his approach to section 41(4), but, for reasons that will become apparent, we do not find it necessary to determine the section 41(4) issue.

As we have said, it is now clearly established that evidence or questions about previous complaints of sexual assaults which are said to be false are not about any sexual behaviour of the complainant within the meaning of section 42(1)(c) (see, for example, BT, to which we have already made reference). But in order to avoid possible abuse, the judge should not regard such evidence or questions as being about a previous false complaint, (rather than about the complainant's sexual behaviour) unless there is a proper evidential basis for asserting that the previous complaint was made and was untrue.

The difficulty lies in what constitutes a proper evidential basis. In our judgment, it is less than a strong factual foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false. In Garaxo at paragraph 14 this court considered that there was a proper evidential basis if there was material such that, depending on the answers given by the complainant in cross-examination, the jury could have been satisfied that the previous complaint was untrue, or there was material which was capable of founding an inference that the complaint was untrue.

In applying this test we do not think that judges will be assisted by an examination of the facts of other cases (such as in the present case the facts of Garaxo.) The exercise which a judge is called on to perform is fact sensitive. At one extreme will be cases where a previous complaint was obviously untrue, for example where the complainant admits that it was untrue and the withdrawal is manifestly reliable. It would be absurd if that evidence could not be adduced by the defendant or the subject of cross-examination on the grounds that it is about previous sexual behaviour. The other extreme is the case where the defendant suggests in cross-examination that a previous allegation by the complainant of a sexual offence against a third party is untrue where there is overwhelming evidence that it is true. Most cases are likely to fall between these two extremes. It will be a matter for the judge to decide on which side of the line any particular case falls. It is not an exercise of discretion. Rather it is a matter for the judge to evaluate on the basis of all the relevant material. But, as is common ground in this case, the relevant question is whether that material is capable of leading to a conclusion that the previous complaint was false.

On behalf of the prosecution, Miss Beck submits that there is no basis for interfering with the judge's assessment in this case. She argues as follows. The judge was entitled to say that there was no proper evidential basis to suggest that the allegation made in 2001 was false. The complainant had been consistent throughout that she did not wish to support a prosecution against the alleged 2001 offender. She was frank that the purpose for making the statement to the police at that time was her wish to be re-housed. She gave a detailed account to the police in which she named her attacker and provided a description of what he was wearing. She gave a detailed account of the attack. She sought medical attention shortly after the attack and told her general practitioner that she was adamant that she did not want to go to the police. She said that she did not tell the police because she was afraid of repercussions. She knew that the attacker knew where she lived. This is what prompted her request to be re-housed. She was in effect forced by the housing authorities to make a complaint to the police, a complaint which she did not want to make.

It is a striking feature of this case that the judge did not ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. That is what was entailed by the question whether there was a proper evidential basis for the assertion that the complaint was false. If the judge had focused on the question whether on the material before them the jury could have been satisfied that the complaint was false, he should have concluded that the jury could have been so satisfied. As Sweeney J said in the course of argument, there were a number of features relating to the previous complaint which could have led a jury to this conclusion. First, there was the interval of four months between the date of the alleged rape and the date when the complainant reported it to the police. Secondly, there were aspects of the complaint which were puzzling and which caused the investigating police to be sceptical: some of them merit separate mention, but, for example, the police thought it was strange that, according to her account, the complainant had not seen the alleged attacker since the date of the alleged offence although they were members of the same circle of friends. It is also to be noted that on page 2 of the Crime Investigation Plan the police listed a series of questions that they would have wished to ask the complainant about her account in order to test it. Thirdly, there is the fact that the complainant did not follow through with her complaint and would not allow the police to pursue an investigation into what was, if her account was true, a very serious offence. Fourthly, the complainant was willing to give the police only sufficient information to enable her to achieve her goal of being re-housed. Her desire to be re-housed, which was her motive for reporting the matter to the police, raised questions as to her true reasons for making that report.

When asked why these facts, when taken together, could not have formed the basis of a conclusion that the complaint was untrue, Miss Beck was unable to give an answer. In our judgment, there is no answer. The judge dismissed these facts as, in effect, being of no consequence, but he did so without the benefit of knowing what answers the complainant would give if cross-examined about them. He was in no position to do so. In our view, therefore, the judge was wrong to hold that the proposed cross-examination was about the complainant's previous sexual behaviour rather than about a previous complaint. He should have concluded that section 41 did not apply in the circumstances of this case. Miss Beck rightly does not submit that if section 41 did not apply the conviction is nevertheless safe. The effect of the judge's ruling was that the appellant was deprived of a potentially valuable line of cross-examination: see, for example, R v Nagrecha [1997] Cr App R 401. In the result this conviction is unsafe and the appeal must be allowed.

MISS BECK: My Lord, in relation to that I have taken instructions. There is an application for a re-trial, my Lord.

LORD JUSTICE DYSON: How long has he been inside?

MISS BECK: He has been inside since September. He was due to be released, if he had completed his sentence, at the end of June, as I understand it.

MISS SELBY: My Lord, in fact I was told by this court that the release date was set for 6th June. He has now served more than five and a half months and would have just over two months left to serve. It would be our submission that it would not be in the public interest in that regard for a re-trial. It is now two years since the allegation.

LORD JUSTICE DYSON: No, we do not think it would be in the public interest for there to be a re-trial in this case having regard to the length of time that the appellant has already served in custody and the relatively short period between now and the day when he would have been released in any event.