England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		26th July 2001

1. LORD JUSTICE KEENE: 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.
2. 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.
3. 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.
4. 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.
5. 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".
6. 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.
7. 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."

8. 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.
9. 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).
10. 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?"

11. Some of those questions, of course, did not relate to sexual matters at all.
12. 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.
13. 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).
14. 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..."

15. 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.
16. 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.
17. Reliance is placed on the Human Rights Act 1998 section 3(1):

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

18. If the provisions of section 41 cannot be read in a way which is compatible with the appellant's Article 6 right to a fair trial, then, argues Mr Inman, that section is incompatible with that Convention right. However, his primary point on the Human Rights Act is that the provisions of section 41 can be read in a way which is compatible with his client's Convention rights.
19. Similar arguments are advanced on behalf of M.H. by Mr Nuttall in the second appeal. It is submitted that the questions which the defence seeks to ask are not ones about the complainant's sexual behaviour as defined in section 42(1)(c), but rather about her actions in telling lies, albeit some of those lies being about sexual matters. Mr Nuttall stresses that the Act is intended to relate to questions about sexual behaviour, not about fantasies or about fictional matters. The fact that, as the defence allege, the complainant tells lies is at the heart of the defence case and if such questions cannot be asked because of the terms of section 41 then that section is incompatible with the appellant's rights under Article 6 of the Convention on Human Rights.
20. It is to be observed that, in the M.H. appeal, the Crown has changed its attitude towards this issue and adopts a neutral stance on the appeal. It now accepts, as Miss Goddard has told us, that section 41 can be read in a way which would allow the questions about previous lies about sexual assaults to be asked. This position is adopted because of the provisions of section 3 of the Human Rights Act to which we have already referred. The Crown recognises that such questions are important and relevant when the jury comes to consider the complainant's credibility and that to exclude them might well breach the appellant's right to a fair trial.
21. On the appeal by Mr T the Crown's position is somewhat different. Mrs Oldham QC submits that any question which involves the assertion of a previous sexual experience is a question "about" that sexual experience. Questioning about previous inconsistent statements or previous opportunities to complain is prohibited by the 1999 Act unless it can be achieved without questions "about any sexual behaviour". This, it is said, does not deny the appellant a fair trial. A balance has to be struck between the rights of the accused and the rights of the complainant in such cases, and Parliament has decided where that balance should lie.
22. The Crown's principal concern in R.T. is about the possible danger of questions along the lines summarised in the latter part of Judge Pollard's summary quoted earlier. Those dangers are ones which arise if questions are asked about the complainant being confused with her earlier sexual experiences so that in effect she is translating her recollection of sexual experiences with others and attributing them now to the appellant. However, Mrs Oldham concedes that if the questions go no further than Mr Inman has outlined – that is to say stressing her failure to refer to these allegations on occasions when she was making other sexual allegations or, indeed, to her making inconsistent statements in the past – then they are relevant questions and would not be "about" sexual behaviour or experience.
23. The interpretation of section 41 and its associated provisions is a matter which has been the subject of recent consideration by the House of Lords in R v A [2001] UKHL 25, [2000] 3 All ER 1. This is an authority to which reference has been made by all counsel who have addressed us.
24. The issue with which this Court is now faced did not fall for determination as such in that case, but the speeches in their Lordships' House do provide a valuable account of the background to, and the purposes of, these legislative provisions in the 1999 Act. Lord Steyn noted that the purpose of section 41 was to prevent the defence advancing at trial what he described as "the twin myths" that "unchaste women were more likely to consent to intercourse and in any event were less worthy of belief": see paragraph 27. In the case of A, the requirements of section 3 of the Human Rights Act and the importance of the right to a fair trial were emphasised by the House of Lords on the issue of interpreting section 41, Lord Steyn stating that the language of the section had to be subordinated to "broader considerations of relevance".
25. For our part we are quite satisfied that the questions sought to be put in both cases under appeal are relevant in the normal, non-statutory sense of that term.
26. In the R.T. appeal they go to the complainant's failure to mention the alleged sexual assaults by the appellant on occasions when she was being asked about such matters and was mentioning other sexual assaults. Such a failure, if it could be established, would be likely to be highly material, though it would be for the trial judge to decide whether the terms of section 41(2)(b), which deals with the effect of a refusal of leave on the safety of the jury's conclusion, were met, assuming that the case fell within section 41 at all.
27. In the case of M.H., the fact that the complainant has fabricated in the past allegations of sexual assault would again seem to this Court to be clearly relevant, if it can be established. That was so held in Nagrecha [1997] 2 Cr App R 401, BAILII: [1997] EWCA Crim 962 by this Court in a case preceding the enactment of the 1999 Act. The reasoning in that case, relying on Gibson [1993] Crim LR 453, was that the evidence went not merely to credit but to the crucial issue of whether there had been a sexual assault at all. In Nagrecha, as in the well-known case of Funderburk (1990) 90 Cr App R 466, emphasis was placed on the fact that "where the disputed issue is a sexual one between two persons in private the difference between questions going to credit and questions going to the issue is reduced to vanishing point".
28. It seems to us that the line is a difficult one to draw, even though the distinction was one which was often purportedly drawn under the previous legislation on this subject, the Sexual Offences (Amendment) Act 1976, section 2, when courts sought to spell out the principles which were applicable.
29. Since the 1999 Act has come into force, in the case of A, Lord Hope of Craighead at paragraph 79 has indicated that questions about the sexual behaviour of a complainant could be admissible if they went to show that the complainant had a motive to fabricate the evidence, despite the ban in section 41(4) on questions as to credibility. That is a matter which needs to be borne in mind by trial judges. If one finds on normal principles of interpretation that relevant and significant evidence would be excluded by section 41, then it might be that a court would need to go on to consider section 3 of the Human Rights Act and to adopt the approach suggested by Lord Hope in A at paragraph 79 and also by Lord Steyn at paragraphs 44 and 45. In appropriate cases, that could lead to a restrictive interpretation of section 41(4) because of the provisions of section 3 of the Human Rights Act and to a narrow definition as to credibility as used in section 41(4).
30. However, for the moment we proceed on the basis that the purpose or the main purpose for which the questions would in both these appeals be asked would be "to establish or elicit material for impugning the credibility of the complainant as a witness". If that is so, then those questions cannot be ones which relate to a relevant issue in the case because section 41(4) expressly prevents them from being so regarded.
31. However, that is not the end of the matter. Section 41 only applies to evidence or questions "about any sexual behaviour of the complainant": see section 41(1). That raises the issue of whether these proposed questions are, in either case, ones "about" her sexual behaviour. The previous legislation used the phrase "about any sexual experience": see section 2(1) of the 1976 Act. Although "sexual behaviour" is defined in the 1999 Act somewhat more broadly perhaps than just "sexual experience", the concept of questions being "about" such matters is retained. It is, therefore, not without significance that in the case of Cox (1987) 84 Cr App R 132, dealing with the 1976 legislation, this Court drew a distinction between questions about the sexual behaviour itself and ones about statements made about such behaviour by the complainant. Lord Lane CJ said in that case at page 136:

"The result of that and the effect of the proposed questions and evidence is to indicate that it was not so such the sexual intercourse with Steven in the earlier event which was of importance, but what she said about it afterwards, and it was that which was the subject of the application."

32. That distinction is one which has been drawn elsewhere. The courts in the United States of America have held that evidence of prior false complaints is not evidence of sexual conduct: see the article by H. Galvin 'Shielding Rape Victims in the State and Federal Courts' (1986) 70 Minn L Rev 763 at 859.
33. It seems to this Court that normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ones "about" any sexual behaviour of the complainant. They relate not to her sexual behaviour but to her statements in the past or to her failure to complain.
34. In the event the Crown in R.T. does not contend that questions about previous opportunities to complain involve the assertion of a previous sexual experience on the part of the complainant. Certainly those questions which it is sought to put in the R.T. case do not need to make such an assertion. They relate essentially to statements in the past made by the complainant alleging sexual experience but without needing to investigate whether those past statements by the complainant were true or false. It is enough for the purposes of the defence that she made such statements but said nothing about any sexual assault by the present appellant.
35. The interpretation which we have indicated of the wording of section 41(1) would reflect the purpose of the 1999 Act, which was not to exclude such evidence. At the report stage of the Bill, which became the 1999 Act, Lord Williams of Mostyn, on behalf of the government, was clear that evidence about previous false complaints was not to be excluded, saying of such evidence "it is about untruthful conduct on prior occasions. There is a very clear difference": Hansard March 8, 1999, column 34. Nothing in R v A suggests that the purpose of section 41 was to exclude such evidence or questions.
36. Consequently, a purposive approach to the interpretation of section 41, in accordance with normal, pre Human Rights Act principles of interpretation, leads this Court to conclude that the questions sought to be asked in both the present cases were not automatically excluded by section 41, even if they are seen as going principally to credibility.
37. It is, therefore, unnecessary to invoke section 3 of the Human Rights Act. However, had we reached some different conclusion as a result of the traditional principles of statutory interpretation, we should have found ourselves in these appeals obliged to have adopted a narrow interpretation of section 41(1) because of the need to ensure a fair trial.
38. In so saying we recognise that victims of crime have rights as well as defendants and that in cases of sexual offences the complainant has a right to a private life under Article 8 which would include privacy in respect of her previous sexual conduct and experiences. A balancing exercise would be required. But in the present cases the balancing exercise must recognise the gravity of the charges faced by these two appellants and the serious consequences which they may face if convicted. We have no doubt that a fair trial in each case would require the interpretation of section 41(1) which has in the event been produced by more traditional methods. Section 41, therefore, is not to be seen as incompatible with a fair trial, given the approach which has been indicated.
39. In arriving at that conclusion one is conscious of the potential dangers which His Honour Judge Hammond had in mind, so it seems, when he gave his ruling in the case of M.H. on whether questions about alleged false complaints could be asked. He said in that ruling at one point:

"... the answer to the question is unknown as to whether it took place or not [that is the sexual experience], and may very well elicit the issue that it did take place."

40. What seems to have concerned the judge is this. If a complainant is asked whether she had told a friend, 'X', on a previous occasion that she had been raped by 'Y' (not the defendant) she may deny making the statement at all. However, she may admit making it, and, in accordance with the object which the defence has in mind, she would then normally be asked "That was not true, was it?" No problem arises if she agrees that it was a false statement. But she may answer that it was true. The defence will normally then be bound by that answer (see R v S [1992] Crim LR 307); but in some case its damage to the complainant's reputation may already be done. It is not difficult to postulate more damaging circumstances than in the example just given: if the complainant is alleged by the defence to have said to a friend in the recent past that she had just had intercourse with two complete strangers on leaving a disco, she admits making the statement to the friend and then goes on to deny that it was a lie, the very problem, or one of the problems which the 1999 Act was intended to guard against, could be created: her reputation in the eyes of the jury might well be severely injured and the deterrent effect on other potential complainants in sexual cases would continue to operate.
41. As we say, this seems to have been the difficulty which His Honour Judge Hammond was troubled by and it is a matter for proper concern. However, it is open to a judge to guard against abuse of the system. The defence, wishing to put questions about alleged previous false complaints, will need to seek a ruling from the judge that section 41 does not exclude them. It would be professionally improper for those representing the defendant to put such questions in order to elicit evidence about the complainant's past sexual behaviour as such under the guise of previous false complaints. But in any case the defence must have a proper evidential basis for asserting that any such previous statement was (a) made and (b) untrue. If those requirements were not met, then the questions would not be about lies but would be "about the sexual behaviour of the complainant" within the meaning of section 41(1). The judge is entitled to seek assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue. That may not provide a watertight guarantee that in every single case evidence about the complainant's past sexual behaviour will be excluded, but it would normally prevent the sort of danger to which we have referred. We understand that in the present cases there is a proper evidential basis for the questions which the defence seeks to put.
42. In the case of R.T., Mr Inman also seeks our guidance on one final matter where leave was not sought below. It concerns one of the complainant's brothers, who allegedly witnessed the rape incident but who made no mention of it when interviewed by the police in December 1990 but did refer to her grandfather "interfering" with her. Guidance is sought as to whether questions about her failure to mention the alleged rape are admissible under section 41, bearing in mind that the section applies to cross-examination generally, and not only to cross-examination of the complainant. Mr Inman submits that such questions would not be about the complainant's sexual behaviour but about her brother's veracity.
43. We see the force of the point made. What is clear is that such questions do not go in any direct sense to the credibility of the complainant but rather to the issue of whether the rape happened. Such questions are not therefore excluded by section 41(4), which concerns only the credibility of the complainant. It is, however, it seems to us, a matter for the trial judge to determine, in the light of the way the arguments are put to him, the admissibility of such questions and this Court should not usurp his function. To do so would risk depriving one of the parties of its right of appeal to this Court at some future date if he makes a ruling on that specific matter. The only guidance we can give is that which is set out earlier in this judgment, which we trust will be of some assistance.
44. For the reasons given in this judgment, both these appeals are allowed.

MR INMAN: My Lord, there is just one matter. Those who represent the law reporters just ask me to ask my Lord to confirm that the normal reporting restrictions relating to the fact that it is a sexual offence and the fact that there is a trial yet to be held would apply. Forgive me if I am trespassing on ground which has nothing to do with me, but I did say I would mention it because I do not think the representative was here when the appeals were first called on.

LORD JUSTICE KEENE: Bear with me a moment.

(The Bench conferred.)

LORD JUSTICE KEENE: Thank you, Mr Inman. The position is this. So far as the complainant is concerned, of course the normal restrictions which operate in a case of this kind are there by statute anyway and those reporting this matter will be well aware of them. It seems to us that the judgment we have given is of general importance and ought to be reported, and no doubt quickly, and we are loathe, therefore, to put any restriction on that until after the trials have been heard. It seems to us that the matter can properly be dealt with so long as the anonymity of the appellants in both cases is preserved by the use of initials rather than by their names; and likewise, in so far as we have referred in our judgment to certain other individuals, such as G.R., that lest there be any risk of those names leading to the identification of parties, those should likewise be identified only by initials in the course of any report. So far as we can see, that would guard against the risk either to the appellant of a fair trial being prejudiced or, of course, to the complainants.

MR INMAN:I would respectfully agree.

MR NUTTALL: We are content.

MRS OLDHAM: My Lord, yes.

LORD JUSTICE KEENE: Very well. As I say, we can see why this judgment may need to be reported soon, but it must be done in the way we have indicated, with the appropriate anonymity preserved.