Interpretation of S. 41 of the Youth Justice and Criminal Evidence Act 1999: Meaning of ‘Sexual Behaviour of the Complainant’
| Author | Brian Brewis,Michael Stockdale |
| Published date | 01 April 2014 |
| Date | 01 April 2014 |
| DOI | http://doi.org/10.1350/jcla.2014.78.2.899 |
| Subject Matter | Court of Appeal |
106
Court of Appeal
Interpretation of s. 41 of the Youth Justice and
Criminal Evidence Act 1999: Meaning of
‘Sexual Behaviour of the Complainant’
R v RP [2013] EWCA Crim 2331
Keywords Criminal evidence; Admissibility; Sexual behaviour; Abortion
The appellant (P) appealed against his convictions for sexually assaulting
his stepdaughter (R). P and B (the complainant’s mother) were in a
relationship for a second time, some years after their original relationship
had broken down. By this time P and B each had two children from
previous relationships. B had two daughters: R (who was about four years
old) and L (about six years old). P assumed the role of a father to R and L,
but the relationship between P and B broke down and they subsequently
divorced in 1997 after nine years of marriage. R, at this point, was about
14 years old. In 2011, R informed B that she had been abused from about
the age of 11 by P before P’s relationship with B ended. B informed the
police about R’s allegations.
During cross-examination at the original trial, R denied that she had
fabricated the allegations after hearing from B that similar complaints
against P had been made by R’s sister, L. R accepted that in the years
following P’s separation from B she maintained contact with P and agreed,
with the exception of the episodes of abuse complained of, that P had been
a good father substitute. In response to a question put by defence counsel,
however, R denied that she would have discussed personal or intimate
matters with P. P’s counsel sought leave to question R about P’s part in
providing financial and emotional support to R concerning a termination
of pregnancy when R was 17. The cross-examination would have refuted
R’s claim that she regarded P with distaste and that she would not have
involved P in personal or intimate matters, and instead it would have
shown that R regarded P as someone she could turn to for support in times
of need. No application had been made before the trial to question R on
the subject. In addition, no formal application had been made under s. 41
of the Youth Justice and Criminal Evidence Act 1999 because the defence
argued that the proposed cross-examination did not concern the
complainant’s ‘sexual behaviour’ and therefore fell outside the terms of
the 1999 Act. The trial judge ruled that the proposed questioning did fall
foul of s. 41 and refused to permit cross-examination on this point. One of
the grounds in relation to which leave to appeal was granted was whether
the trial judge had erred in ruling that the proposed questioning of R about
the termination should not be permitted.
Held, dismissing the appeal, that the prohibited cross-examination
concerning the termination was relevant to an issue before the jury,
namely that it did tend to detract from the complainant’s account that she
The Journal of Criminal Law (2014) 78 JCL 106–120
doi:10.1350/jcla.2014.78.2.899
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