R v T
| Jurisdiction | England & Wales |
| Judgment Date | 2021 |
| Neutral Citation | [2021] EWCA Crim 318 |
| Date | 2021 |
| Year | 2021 |
| Court | Court of Appeal (Criminal Division) |
Crime - Sexual offence - Rape - Consent - Statutory provision excluding evidence of complainant’s previous sexual behaviour - Whether questions relating to complainant’s sexual identity suggestive of sexual activity - Whether such questions to be excluded -
The complainant had been married to the defendant. Some years after the end of the marriage, the complainant made a complaint to the police by which she alleged that she had suffered abuse at the hands of the defendant during the course of the marriage and that on three occasions the defendant, while intoxicated, had raped her. The defendant was charged with rape. His defence at trial was that all sexual activity in the marriage had been consensual and was part of a loving relationship. During the course of the trial the defence made a written application seeking leave, under section 41 of the Youth Justice and Criminal Evidence Act 1999F1, to ask the complainant a number of questions, including whether she identified as a lesbian/bisexual woman now. It was submitted that the complainant’s motive in making the allegations against the defendant were as a “way of seeking validation for any change in sexual orientation”. The trial judge found those questions to be entirely speculative and refused the application. The defendant was convicted of two counts of rape. He appealed against conviction on the ground that the judge’s ruling was wrong, contending that “sexual behaviour” as used in section 41 was confined to actions and conduct and did not extend to “internal conflicts about sexuality”, so that section 41 had not applied. The Crown resisted the appeal, contending that sexual identity and sexual orientation could constitute an "experience" and so might fall within the ambit of section 41, just as virginity or celibacy might be, and that sexual orientation could be suggestive of sexual activity and, if so, was capable of being “sexual behaviour”.
On the appeal—
Held, dismissing the appeal, that, depending upon the circumstances of the particular case, sexual orientation could be suggestive of sexual experience so as to fall within the definition of “sexual behaviour” in section 42(1) of the Youth Justice and Criminal Evidence Act 1999, with the result that section 41 of the 1999 Act would be engaged; that, in the present case, the proposed first question to be asked of the complainant, which laid the foundation for the subsequent questions, related directly to the complainant’s sexual identity; that, without generalising about the matter, such a question was indeed suggestive of sexual activity and, therefore, leave under section 41 had been required; that, in the all the circumstances, the judge had been correct to refuse the application, since (i) the proposed questions were not limited to specific instances of conduct, but rather were wholly generalised and so fell foul of section 41(6), (ii) the judge had been entirely justified in concluding that the proposed line of questioning had the main purpose of undermining the complainant's credibility and was thus impermissible pursuant to section 41(4), and (iii) the whole basis for the proposed line of questioning was entirely speculative and, even if section 41 could be brought into play, the application simply could not have met the further requirement of section 41(2)(b) of the 1999 Act since it could not be said that refusal to permit such questioning might have had the result of rendering a conclusion of the jury unsafe; that, indeed, it was wholly unexplained how challenging the complainant's sexual identity and her anxieties about her sexual identity could logically have any bearing on her asserted motivation for making false allegations of three incidents of rape; and that, accordingly, the convictions were safe (post, paras 39, 40, 44–54).
APPEAL against conviction
On 31 May 2019 in the Crown Court at Lewes, sitting at the Hove trial centre, before Judge Henson QC and a jury, the defendant, T, was convicted of two counts of rape of his second wife. During the course of the trial the defence had made a written application under section 41(3)(a) of the Youth and Criminal Justice Act 1999 seeking leave to put certain questions to the complainant in the course of cross-examination. The judge refused the application. The defendant appealed against conviction on the grounds that the judge was wrong in so ruling.
The facts are stated in the judgment of the court, post, paras 2–13.
Sophie Shotton (assigned by the Registrar of Criminal Appeals) for the defendant.
Riel Karmy-Jones QC and Beverley Cripps (instructed by the
25 February 2021. DAVIS LJ delivered the following judgment of the court.
Introduction1 After a trial at the Lewes Crown Court (sitting at the Hove trial centre) the defendant was convicted on 31 May 2019 of two counts of rape. The complainant was a woman to whom at the time he had been married. The issue on this appeal, for which leave was granted by the full court, is whether he, by his counsel, was wrongly precluded from putting certain questions to the complainant in cross-examination. That issue in turn involves, amongst other things, consideration of whether sexual orientation or sexual identification could, in the circumstances of this case, constitute “sexual behaviour” for the purposes of section 41 of the Youth Justice and Criminal Evidence Act 1999 (to which we will refer as “the 1999 Act”).
Background facts2 The background facts, in summary, are these.
3 The complainant had been the defendant’s second wife. They had met in 1999 when they were members of the same church in the North of England. He was a significant number of years older than her. They subsequently moved to live in Sussex. They married in July 2002 but were divorced in November 2010 after separating in 2009.
4 Following the divorce the defendant had continued to contact the complainant by text message. During the course of 2016 and 2017 he sent her a large number of text messages, many of which were explicitly of a sexual nature and many being sent late at night or in the early hours of the morning. She asked him to stop but he continued to contact her. At all events, on 6 June 2017 the complainant made a formal complaint to the police about the abuse which she alleged she had suffered during the course of the marriage. The defendant was interviewed on 22 September 2017. He denied all the allegations of abuse which had been made although he admitted having sent the text messages.
5 The prosecution was to say at the trial that the defendant had had sexual intercourse with the complainant during their marriage on three occasions when he was drunk and when she had not consented. This was said to have occurred in the context of a marriage alleged to have been one in which the defendant had been controlling and in many ways otherwise abusive towards the complainant.
6 The defence, on the other hand, in a nutshell, was that all sexual activity in the marriage had been consensual and was part of a loving relationship. Furthermore, it was said that in so far as alcohol had played its part, if he did drink too much on occasion then that would simply make him sleepy. As to the text messages, he said that they were in the context of seeking to maintain a friendship with the complainant after the marriage ended. In short, the allegations of rape were said to be simply false.
7 So far as the first alleged rape was concerned (count 2 on the indictment) the complainant was to say in evidence at trial that the defendant had been drinking and had become aggressive and verbally insulting. At one stage he fell on to a printer, after which he agreed to go to bed. She waited a bit before going to bed herself. According to her, the defendant then tried to kiss her and climb on top of her and carried on and ignored her when she said that she did not want to do it. She tried to keep her legs close together but he forced them apart, pulled off her underwear and then penetrated her whilst holding her arms back. She was unable to stop him. After he ejaculated he then rolled off and went to sleep. According to her, when she raised it with him the next morning he told her that nobody would believe her and she was to be careful about what she was implying.
8 So far as the second alleged incident of rape was concerned, on the complainant’s evidence the background was broadly similar. Again the defendant had been drinking heavily during the course of the evening, became aggressive, domineering and insulting and then tried to kiss her when they were in bed. When she said “no” he continued, he forced her legs apart and penetrated her and then after...
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