West Law Report


Last Updated: 12:01am GMT 03/01/2008

Court of Appeal (Criminal Division)
Moore-Bick LJ, Wilkie J and the Recorder of Chester
December 18, 2007

Admissibility – Consent – Criminal evidence – Cross-examination – Prosecution evidence – Prosecution witnesses – Rape – Sentence length – s. 41 Youth Justice and Criminal Evidence Act 1999 – s. 41(5) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(c)(i) Youth Justice and Criminal Evidence Act 1999 – s. 41(3)(a) Youth Justice and Criminal Evidence Act 1999 – Art. 6 European Convention on Human Rights 1950


The appellant (H) appealed against a conviction for rape and the consequent sentence of imprisonment for public protection with a minimum term of five years. The victim (V) had been on a night out and was separated from her boyfriend (B) following an argument. On her way home, H drew alongside her in his truck and offered her a lift, which she accepted. V alleged that once inside the truck, H drove to some wasteland and proceeded to rape her. H accepted that he sometimes drove around late at night seeking sexual activity, but denied that he had raped V. He asserted that V had initiated the sexual activity and that she had become angry when he refused to participate in certain activities. The accounts provided by V and H differed greatly, providing the jury with the sole issue of whom to believe.

The judge acceded to H’s application to adduce evidence of aspects of V’s previous sexual behaviour under the Youth Justice and Criminal Evidence Act 1999 s. 41. However, the judge refused to admit evidence from a witness (W) about a sexual relationship he had had with V approximately two months before the alleged rape when V was with B. V had stated during cross-examination that she had never had relations with other people whilst seeing B. The judge ruled that W’s evidence did not have any probative value.

H submitted that

  1. the judge erred in excluding W’s evidence to the effect that V did have sexual relations with other men whilst she was seeing B and that, as a consequence, his conviction was unsafe. He argued that V’s assertion in cross-examination fell within s. 41(5) of the Act as evidence adduced by the prosecution, so that W’s evidence should have been admitted to prevent the jury being misled as to V’s sexual inclinations. Alternatively, H argued that events described in W’s evidence were similar to that which occurred in the instant case so that the latter ought to have been admitted under s. 41(3)(c)(i) of the Act;
  2. the judge was wrong to conclude that B posed a significant risk of serious harm to the public, and argued that a notional determinate sentence of 10 years was manifestly excessive.


Whether evidence provided by a prosecution witness under cross-examination by defence counsel was not evidence to which the Youth Justice and Criminal Evidence Act 1999 s. 41 was aimed when given its natural meaning, and could not be extended to cover such evidence.

HELD (appeal allowed in part)

(1) The test of admissibility to be applied under s. 41(3)(a) of the Act was whether the evidence sought to be adduced was so relevant to the issue of consent that to exclude it would endanger the fairness of the trial required by the European Convention on Human Rights 1950 Art. 6.

The wider principle was that the importance of protecting complainants from indignity and humiliating questions to which s. 41 was directed had to give way to the right to a fair trial, R v A (Complainant’s Sexual History) [2001] UKHL 25, [2002] 1 AC 45 considered. However, in R v A, the application was made by the defendant in relation to previous sexual intercourse he had had with the complainant. Allegations of a previous consensual relationship with an accused raised considerations of a different nature to that of a previous relationship with a third party, R v White (Andre Barrington) [2004] EWCA Crim 946, (2004) 148 SJLB 300 considered.

It was clear that V’s evidence that she was faithful to B at all times in their relationship amounted to evidence about her sexual behaviour, but it was questionable as to whether it fell within s. 41(5) of the Act as asserted by H. In the context of the instant case, “evidence adduced by the prosecution” within s. 41(5) of the Act, given its natural meaning, meant evidence placed before the jury by a prosecution witness as part of the evidence-in-chief and of other witnesses in the course of cross-examination by the prosecution. It did not naturally extend to evidence given by prosecution witnesses under cross-examination by the defence. Therefore, it could not be extended to cover all evidence given by prosecution witnesses as contended for by H. Further, the similarities identified by H could not reasonably be explained as a coincidence having regard to the background to the case, and the evidence was not truly probative in relation to the issue of consent.

(2) Before his conviction, H was a man of good character with a stable family background and had not demonstrated any pattern of offending. However a pre-sentence report concluded that H remained at a high risk of repeating similar offences in the light of H’s own description of his nocturnal activities. It was inappropriate to interfere with the conclusions of a sentencer where the sentencer accurately identified the relevant principles and applied his mind to the relevant facts. However, the aggravating features identified by the judge were not so significant as to warrant the minimum term imposed. Accordingly, the minimum term would be reduced to four years’ imprisonment.

Edward Fitzgerald QC and Paul Taylor (instructed by Michael Henderson & Co) for the appellant. Bruce Houlder QC and Timothy Gittins (instructed by Crown Prosecution Service) for the respondent.


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