R v T; R v H
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE |
| Judgment Date | 26 July 2001 |
| Neutral Citation | [2001] EWCA Crim 1877 |
| Docket Number | No: 01/2631/S2 and 01/1915/S2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 July 2001 |
[2001] EWCA Crim 1877
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Keene
Mr Justice Garland and
Mr Justice Burton
No: 01/2631/S2 and 01/1915/S2
MR MELBOURNE INMAN QC & MRS A LUCKING appeared on behalf of the APPELLANT R.T.
MRS FRANCES OLDHAM QC & MISS FELICITY GERRY appeared on behalf of the CROWN
MR ANDREW NUTTALL appeared on behalf of the APPELLANT M.H.
MISS SUZANNE GODDARD appeared on behalf of the CROWN
Thursday 26th July 2001
These two appeals raise an important point as to the proper interpretation of section 41 of the Youth Justice and Criminal Evidence Act 1999, a section which imposes restrictions at trials for a sexual offence on producing evidence or asking questions about the complainant's sexual history.
In both appeals rulings have been made in the context of a preparatory hearing that certain questions which the defence wish to put to the complainant were excluded by the provisions of section 41. In both cases leave to appeal to this Court was granted by the Crown Court judge, it being very properly recognised that a novel point of law had arisen. The appeals are in consequence brought under 35(1) of the Criminal Procedure and Investigations Act 1996. With the consent of all parties, we give one combined judgment on both cases.
In the first appeal R.T. appeals against the ruling of His Honour Judge Pollard at Leicester Crown Court on 3rd April 2001. The appellant is charged with two counts of indecent assault and one of rape, in all three cases the complainant being his niece. The alleged offences are said to have taken place between 1st November 1987 and 31st December 1989, when the complainant was aged between 8 and 11 years old. At this time the complainant lived with her mother and three brothers. The defence case was that none of the alleged acts had taken place.
It seems that the timing of the alleged incidents may be within a narrower compass than set out in the indictment, because they are alleged to have occurred while the appellant was temporarily living with the complainant's family, and there is some evidence that this was in the summer of 1987. The allegations by the complainant were not put forward until late 1999, and the defence seek to emphasise the various opportunities which she had had to put them forward on previous occasions. In particular, there were two occasions in late 1987 and in 1990 when she had been asked questions about sexual matters involving herself but did not raise the allegations about the appellant.
The first of those two occasions was in November 1987, when the police were investigating allegations that one of her brothers had been sexually abused by another uncle. In the course of the investigations the complainant was asked whether "anyone had ever touched her in a rude way". She had replied "Just granddad and M [one of her brothers] did once in Middlesbrough".
The second occasion was in 1990 when in course of other investigations about sexual abuse of her she had made a statement alleging rape by one of her brothers. Once again there was no mention of anything done by the appellant.
Leave was consequently sought on his behalf under section 41 to ask questions of the complainant about her failure to mention on those occasions in late 1987 and in 1990 the alleged incidents which form the basis of the current charges. The Crown Court judge summarised the questions which it was sought to put as follows:
"Why did you not mention it when you were dealing with the police and social workers about sexual matters in late 1987 or in 1990? You did not mention it because it did not happen. Or, well, maybe things did happen to you. Whatever happened to you, you have become confused about who did what to you, but in any event, your uncle never did anything to you."
There may also have been another opportunity for her to have mentioned the alleged abuse in December 1988. If so, it comes into the same category as the two occasions to which reference has already been made.
The judge took the view that it was not open to him to grant leave because the questions were ones about sexual behaviour of the complainant, as defined by section 42(1) (c), and did not relate to a relevant issue in the case because it was clear that the questions would be asked in order to impugn the credibility of the complainant: see section 41(4).
In the second appeal M.H. is charged with indecent assault of his stepdaughter in the summer of 2000 when she was aged 14. He denies that any act took place. He appeals against the ruling of His Honour Judge Hammond at Manchester Crown Court on 2nd April 2001, whereby it was ruled that section 41 prevented the defence from asking questions of the complainant to try to establish that she had lied on a number of occasions in the past about sexual matters, as well as non-sexual matters. The questions proposed were as follows:
"1. On a day prior to the events in this case, did you tell your brother, J.H., that you had been raped?
2. Did you tell your friends that your brother had fought with the person that you said raped you?
3. In late December 1997, did you tell G.R. that you had been raped by a boy called C., and did you whilst in her company and whilst walking to the Beech Public House on 28th December 1999 pretend to speak to C. on your mobile phone?
4. Did you tell G.R. and your friend S. (a prosecution witness) that you were pregnant and your mother had aborted it with a knitting needle?
5. Did you tell A.R. that your mother treated you like a slave in the house?
6. Did you tell A.R. that you were involved in gangs?
7. Did you boast to your friends that you sold drugs and that your mother had condoned your use of?"
Some of those questions, of course, did not relate to sexual matters at all.
In each case the defence proposes to contend that the statement alleged to have been made by the complainant was untrue. It follows that, in so far as the alleged statements by the complainant dealt with sexual matters, it was and is the defence's position that those events never took place.
As in the first appeal, so here too the judge ruled that these were questions about the complainant's sexual behaviour, given the definition in section 42(1) (c), and that as the purpose in asking them would be to impugn her credibility, they were rendered inadmissible because of section 41(4).
In so far as it is relevant for present purposes, section 41 of the 1999 Act provides as follows:
"(1) If at a trial a person is charged with a sexual offence, then except with the leave of the court—-
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave 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 or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case…
(4) 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."
"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…"
On behalf of the appellant in the first appeal, Mr Inman QC submits that the proposed questions are not ones "about any sexual behaviour" of the complainant but about statements made by her in the past in response to certain questions. The cross-examination, it is said, relates only to her failure to make any reference to sexual abuse by the defendant at times when she was referring to such abuse by others. Indeed, on the November 1987 occasion it is argued that there was not merely a failure to comment about anything done by the appellant but an inconsistent statement – inconsistent, that is, with the present allegation – because of the reference to assault by "just granddad and M". Such cross-examination would not conflict with section 41, which was aimed at preventing questions of a complainant seeking to show that she, or for that matter he, was less worthy of belief because of previous sexual conduct. It is contended that the complainant need not be asked about any detail of the answers she had given on those previous occasions, save to show that she had been asked about sexual matters or had referred in her answers to sexual contact by someone other than a defendant. Mr Inman does not seek to run an allegation that the complainant had become confused because of past sexual experiences.
Mr Inman also contends that if the provisions of section 41 were to be construed in such a way as to exclude questions of the kind described, then they would deprive the appellant of a fair trial, since the complainant's failure to raise these allegations at times when she was being asked about sexual abuse is clearly relevant to the issues in the case.
Reliance is placed on the Human Rights Act 1998 section 3(1):
"So far as it is possible to do so, primary legislation and ...
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