Section 41 of the Youth Justice and Criminal Evidence Act 1999 and the Admissibility of Evidence Concerning Child Sexual Assault Complaints: R v Philo-Steele (Alexander) [2020] EWCA Crim 1016

AuthorBrian Brewis
Date01 April 2021
DOI10.1177/0022018321993309
Publication Date01 April 2021
SubjectCase Notes
Case Note
Section 41 of the Youth Justice
and Criminal Evidence Act 1999
and the Admissibility of Evidence
Concerning Child Sexual Assault
Complaints
R v Philo-Steele (Alexander) [2020] EWCA Crim 1016
Keywords
Sexual assault, sexual behaviour evidence, issues of non-consent, child complainants
The Appellant (A), a child carer, was convicted of 11 counts of sexual assault against three children in
his care, W, Y and Z (the 2019 trial). The first incident occurred in 2003 when W stayed the night at A’s
home. On his return the next day, W informed his mother (Mrs W) that A had molested him in the bath.
Mrs W reported this to the police after which A was arrested and charged with sexual assault but, for
reasons unknown, the proceedings were discontinued. Much of the documentation relating to those
proceedings had been destroyed, save for a transcript of W’s ABE interview and Mrs W’s statement.
The retention of this information meant that the police could link the 2003 allegations to later complaints
of sexual abuse made by X and Y (the 2018 trial). W was re-interviewed in 2019 where he repeated his
earlier account of 2003 that A had ‘molested him’ [at 17]. A was subsequently charged with indecent
assault.
The second episode took place in 2016 during A’s employment while looking after a seven-year-old
boy, X, while X’s mother (Mrs X) was out of the country on a business trip. On Mrs X’s return, X
informed her that A ‘gave good massages’ [at 21] and that when X was in the bath, A had engaged in
conduct similar to that which he had been acquitted of in 2003. A was charged with five counts of sexual
assault but was acquitted on all counts in 2018.
The third episode occurred after A’s acquittal of the charges against X. While still subject to those
charges, A befriended the mother of four young children (Mrs YZ). The two youngest children were
boys—Y (aged 6) and Z (aged 7). After his acquittal in June 2018, A occasionally looked after the boys
and bathed them at the request of Mrs YZ. After a falling out, Mrs YZ told the boys not to speak to A
again. It was during this conversation that Y and Z made allegations of sexual abuse, leading to A’s
conviction for 11 counts of sexual assault.
A sought leave to appeal against both sentence and conviction. The judge granted leave to appeal
against conviction but refused in relation to sentence. The appeal against conviction concerned the trial
judge’s refusal to permit two applications made on behalf of the appellant under s 41 of the Youth Justice
and Criminal Evidence Act 1999 to adduce evidence of X’s previous sexual abuse and W’s knowledge of
sexual conduct. It was contended by counsel for A ‘that the judge erred in refusing them and, as a result,
the convictions are unsafe’ (at [40]).
The first s 41 application related to the ABE interview of W’s best friend, V. In this interview, V
referred to W’s sexualised behaviour when W was six years old and before he made the allegations
against A in 2003. This consisted of W’s desire to watch pornography and engage in sexual acts with
The Journal of Criminal Law
2021, Vol. 85(2) 158–160
ªThe Author(s) 2021
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DOI: 10.1177/0022018321993309
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