R v W (A B) (2004)

On 24th February 2004 this Court, constituted as it is today, adjourned this appeal against conviction because, as we indicated at the time, we had had virtually no assistance from counsel at that stage upon the impact on the case of the decision in their Lordships' House in R v A (No 2) [2002] 1 AC 45. Counsel have now put in skeleton arguments. The importance of the decision in A will become clear as we explain how this appeal has unfolded.

On 28th March 2003 before His Honour Judge MacDuff at the Birmingham Crown Court the appellant was convicted by the jury by a majority of ten to two of an offence of rape. On 13th June 2003 he was sentenced by the same judge to a term of five years' imprisonment.

He appeals against his conviction by leave of the single judge.

On the night in question the complainant had been drinking with a friend in a public house. The friend left. The appellant was there. The complainant had seen him in the pub before. They had a few drinks together. She asked him back to her flat for a drink. At the flat they had a drink and smoked some cannabis purchased on the way. The complainant became intoxicated. The appellant asked to go into the bedroom with her. She said she was having her period. Then her evidence to the jury continued as follows:

"After she continued to refuse the appellant grabbed her by the hair and pulled her into the bedroom. He threw her on the bed and seized her by the throat. He undid her clothes despite her protests. He slapped her in the face and pulled out her tampon. He then had sexual intercourse with her. She struggled. She tried to push him off. She told him not to do what he was doing. Afterwards he tried to put his penis in her mouth. He allowed her to go to the lavatory. She left the house in a dressing gown to try and rouse the neighbours. When she came back he had gone. She dressed. She went to Thornhill Police Station where she arrived at 6.49 a.m.. Photographs were taken of her injuries. She said they were caused when she was trying to fight him off."

The appellant's evidence was that they had had sex with her consent, indeed at her instigation. He said she had earlier asked him for money, £40, and he had refused. After they had sex he dozed off and woke to find his wallet was missing. She had it in her hand. There was a struggle as he tried to get it back. His final account given to the jury was that she seemed to have no injuries at the time he left the premises.

As the complainant herself made clear in a witness statement she had worked as a prostitute in Coventry for 19 years or so. By the time of the alleged offence she was no longer working on the streets, but she still had one long-standing client who came to her flat and, as we think it was put, "a couple of other regulars" who came there less frequently.

At the outset of the trial the judge had to deal with a defence application. It was for leave to cross-examine the complainant about her previous and contemporary activities as a prostitute. Leave was necessary by force of provisions contained in section 41 of the Youth Justice and Criminal Evidence Act 1999. Here are the material provisions, section 41(1) to (6):

"(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 in the evidence or question relates to a relevant issue in the case and either —

(a) that issue is not an issue of consent; or

(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or

(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar —

(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or

(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,

that the similarity cannot reasonably be explained as a coincidence.

(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 for 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.

(5) This subsection applies if the evidence or question —

(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and

(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.

(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."

This is what the judge said (transcript page 3E-4G):

"The issue before this court is quite simply an issue of consent. The defendant's case is that the complainant consented to his having sexual intercourse with her. She denies it and says she attempted to fight him off and did not consent.

Mr Reid contends that the facts fall within subsection (3)(b). The subsection applies if the evidence or question relates to a relevant issue in the case and it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused.

Mr Reid puts it in this way: although it is not his case either that there had been an agreement for payment or that payment was made or was to be made, his instructions are that the complainant gave by her demeanour and by her alleged looking in his wallet the indication that she was expecting payment. Moreover, as is clear from the papers, she had invited him back to her premises and on the way had purchased drink and cannabis for their consumption. He says that amounts to sexual behaviour which is not only proximate to the event but co-exists with the event.

In my judgment, the fact that she has in the past worked as a prostitute cannot in any way have any relevance to the question of whether on this occasion she consented to sexual intercourse, it not being, as I understand it, any part of the defendant's case that she consented because he had offered payment or that payment had been agreed.

Moreover, it seems to me on a reading of subsection (3)(b) that her previous experience of sexual matters was not any in way proximate to the events about which complaint is made and, in my judgment, this is not a case where, if I am wrong about that, the refusal of leave would have the result of rendering unsafe any conclusion that the jury might make in due course.

Mr Reid agrees with me that it would be wrong for it to be allowed in on the basis which could only be a prejudicial basis that the jury should know she had worked as a prostitute in the past and, therefore, whether nor money or not, on this occasion not, she was more likely to consent than otherwise and, in those circumstances, the application is refused."

Subsequently the learned judge modified his ruling to this extent (transcript 5D):

"… you may not her ask if she has ever in the past worked as a prostitute, but it seems to me you are not infringing the rule if you say to her, 'On this date, on this particular day, you were expecting to be paid, were you not?' and following it through in that way. Now, is that right, Mr Grice [Mr Grice was the prosecutor]?

Mr Grice: Your Honour, that is my understanding, yes.

The Judge: Yes.

Mr Reid: Your honour, I am not unhappy with that at all. It is that I was seeking a ruling."

For the appellant it is submitted by Mr Muller that leave should have been given to cross-examine, at any rate, as to her previous and contemporary activities as a prostitute having regard to sections 41(2)(b) and 41(3)(a), (b) and (c).

Granting leave to appeal, the single judge said:

"I have given leave because it seems at least arguable that cross-examination should have been permitted of the complainant about her contemporaneous activities as a prostitute because the case raised an issue of consent and the inability of the appellant...