False allegations: the limitations of the ‘evidential basis test’
| Author | Brian Brewis,Michael Stockdale |
| DOI | 10.1177/0022018314557415 |
| Published date | 01 December 2014 |
| Date | 01 December 2014 |
| Subject Matter | Court of Appeal |
Court of Appeal
False allegations: the limitations of the ‘evidential basis test’:
RvAll-Hilly (Salaam David) [2014] EWCA Crim 1614
Keywords
Rape, cross-examination, previous allegations, Youth Justice and Criminal Evidence Act 1999 s. 41, evidential basis
The appellant (S) was convicted of rape. Both the appellant and the complainant (C) were drug addicts
and became acquainted at a Narcotics Anonymous meeting in 2011. C became attracted to S and a
consensual sexual relationship between C and S commenced in November of that year. On the evening
of 25 November 2013, C invited S to her home and the pair had consensual oral sex. Consensual anal
intercourse followed, but this caused discomfort to C, at which point she told S to stop. S ignored C’s
repeated protests and at one point even said to C, ‘I am anally raping you’. The defence argued that C
consented to anal intercourse and had enjoyed it, but when this began to hurt C, S stopped on his own
accord. The credibility of C, therefore, became vitally important in the jury’s assessment of whether C
consented.
The defence became aware, from C’s ABE (Achieving Best Evidence) interviews and via the
proper disclosure process, that C had made a number of allegations of sexual assault against other
men in the past, but that she had not pursued these allegations with the police. Counsel for S applied
for leave to cross-examine C on the basis that C’s reluctance to pursue the complaints further created
an inference that they were untrue. The trial judge refused on the basis of there being no evidence to
suggest that the previous allegations were false. The judge indicated, however, that he would leave
the matter open and hear further argument if need be. C’s evidence in chief took the form of edited
ABE video interviews. The jury did not hear evidence of the previous allegations made by C against
other men, but did hear brief reference of the fact that C had been abused in the past by her father.
At trial, C repeated the claims of previous abuse by other men. This information had been tendered
voluntarily during cross-examination and not, as argued by defence counsel, as representing evidence
that was introduced as part of the prosecution’s case as presented to the jury. The defence renewed its
application to cross-examine C, but failed once again on the basis of there being no evidence to prove the
falsity of the allegations. Counsel for S argued that C’s reluctance to pursue previous complaints with the
police clearly established an evidential basis for suggesting that the allegations were false. In this regard,
they had substantial probative value in relation to C’s credibility and satisfied the leave requirement for
cross-examination under the Criminal Justice Act 2003, s.100(1)(b). The refusal by the trial judge to per-
mit cross-examination had, therefore, rendered the conviction unsafe.
Held, dismissing the appeal
The court reaffirmed the position that restrictions imposed on questions or evidence by s. 41 of the Youth
Justice and Criminal Evidence Act 1999 in relation to the complainant’s sexual history do not apply to
previous false allegations of sexual assault. Previous false allegations do not amount to ‘ ...sexual beha-
viour or other sexual experience’ within the meaning of s. 42(1)(c) of the 1999 Act and are, therefore,
The Journal of Criminal Law
2014, Vol. 78(6) 453–462
ªThe Author(s) 2014
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DOI: 10.1177/0022018314557415
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