England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		8th July 2014

LORD JUSTICE TREACY:

1. On 1st November 2013, in the Crown Court at Swansea, this appellant was convicted of rape. In due course he was sentenced to an extended sentence of ten years, comprising a custodial term of five years with an extension period of five years. He was sentenced to concurrent terms arising from his guilty pleas to two counts of possessing an extreme pornographic image. Ancillary orders were made. The single judge has granted leave to appeal against conviction. We confirm that the usual reporting restrictions concerning the victim in this case apply.
2. The victim was a 27-year-old woman. Both she and the appellant had struggled with drug addiction. They met at a Narcotics Anonymous meeting in 2011. On 18th November of that year they began a sexual relationship. There was no dispute that the complainant was attracted to the appellant and quite willing to have a sexual relationship.
3. The Crown's case was that on the evening of 25th November the victim invited the appellant to her home. The pair had consensual oral sex. After this the appellant penetrated her anus with his penis. This had begun consensually but it hurt the victim and she told him to stop. However, he ignored those protests and continued to penetrate her, knowing that she was not consenting. The penetration was hard and fast and went on for several minutes. The appellant ignored the complainant's repeated protests. Indeed, at one point he said, "I'm anally raping you". As the jury's verdict showed, this was true.
4. The defence case was that the victim had consented to the anal intercourse, the victim had enjoyed it and had not told him to stop. When she did say it was hurting, he had stopped of his own accord.
5. So the issue for the jury was one of consent, with the credibility of the victim's account being of vital importance.
6. In the course of her ABE interviews, and also through the ordinary and proper disclosure process, it was disclosed to the defence that the complainant had made previous allegations of sexual assault by men other than this appellant. Before any evidence was heard counsel raised with the judge whether he might be permitted to cross-examine her about those matters. The judge gave an initial ruling that since there was no evidence that the allegations were false, such cross-examination should not take place. However, the judge indicated he would leave the matter open and would hear further argument if need be.
7. The complainant's evidence-in-chief consisted of her ABE video interviews, which had been edited by agreement. The allegations of earlier sexual abuse by others were excluded, although the jury did hear brief reference to the fact that the victim had been abused in the past by her father.
8. In the course of the victim's cross-examination, she volunteered that she had been abused in the past by three men. We do not accept the characterisation of this by Mr Edie as representing the introduction of evidence as part of the prosecution case. This was an observation made by the victim in cross-examination voluntarily. This information had not been adduced in chief by the Crown and formed no part of the Crown's case as presented to the jury.
9. In the light of what had happened, Mr Edie again applied to be permitted to cross-examine the victim about those allegations. The judge again ruled against Mr Edie on the basis that there was no evidence that any of the allegations was false. In the course of exchanges between judge and counsel, the judge said:

"... the fact remains the only reason really that you want it in is to say to the jury 'well, how can she be telling the truth if she's been abused by, whether it be three or six people'."

10. Mr Edie frankly acknowledged that that was the case.
11. The grounds of appeal assert that the conviction is unsafe, and that the judge should have permitted cross-examination of the victim about the falsity of her allegations of sexual abuse by other men. The credit of the victim was critical to the case. There was a basis for allowing the questions to be asked and they would have had a substantive probative value in the case.
12. It is clear that the restrictions on questions about a complainant's sexual history set out in section 41 of the Youth Justice and Criminal Evidence Act 1999 do not apply to previous false complaints of sexual assaults. Cross-examination is permitted since such complaints are not about any sexual behaviour of the complainant within the meaning of section 42(1)(c) of the Act. However, before any such questions are permissible, the defence must have a proper evidential basis for asserting that any such statement was (a) made, and (b) untrue.
13. This court observed in Murray [2009] EWCA Crim 618 that the difficulty lies in what constitutes a proper evidential basis. The court said that it was less than a strong factual foundation for concluding that the previous complaint was false, but that there must be some material from which it could properly be concluded that the complainant was false.
14. We agree with the observation that the exercise for the judge is fact-sensitive and will not be assisted by an examination of the facts of other cases. We also agree that it is an exercise of judgment rather than discretion, so that it is for the judge to evaluate the matter on the basis of all the relevant material. The ultimate question is whether the material is capable of leading to a conclusion that a previous complaint was false.
15. Mr Edie contends that in this case there was a proper evidential basis that would enable leave to cross-examine to have been given under section 100 of the Criminal Justice Act 2003. Accordingly, if a previous complaint or complaints was or were false, it would have substantial probative value as to the appellant's credit, as required by section 100(1)(b).
16. In those circumstances we need to examine the matters relating to the earlier complaints. They are:

(A) complaints of sexual abuse, including rape by her father, on occasions between the ages of two and 16. These were referred to in an ABE interview in April 2012 but had first been disclosed in May or June 2010. The victim had then been interviewed by police after a referral following counselling. When spoken to by the police, she said her recollections were vague. She concluded her interview by stating:

"These memories are so vague that I cannot entirely rely on them myself. I do not feel I could say with any great amount of certainty that these events actually happened and because of this I am not willing to take the matter any further with the police at this time."

When asked about these matters in April 2012, at the time of the ABE interview in these proceedings, the victim gave some further detail and she also mentioned that she had reported the matter to the police previously and had not divulged everything or pressed charges.

(B) In her ABE interview the victim said that her grandfather had forced her to give him a "blow job" when she was about ten. No complaint was made to the police at the time, and by the time of the ABE interview we understand that the grandfather had died.

(C) In the ABE interview the victim said that a man, whom she named, took her to the woods and touched her indecently. She had been interviewed about this in 1996 apparently, about three years after the event. Hampshire police have no record of this complaint.

(D) On 6th August 2004 the victim's mother phoned the police, saying that the victim had been sexually abused. The victim had said to her mother that on 1st August her uncle had exposed himself and grabbed her head, pushing it down onto his penis. He also put his hand down her top. The victim, when seen by the police shortly afterwards, told them that she did not want to make a statement or pursue a complaint and gave a number of reasons. The police did not take the matter further.

17. There was another matter originally raised in the grounds of appeal which it is now accepted was a complaint mistakenly attributed to this complainant due to an error made by a forensic examiner. This further matter need not detain us any more.
18. It is Mr Edie's submission that the material summarised provides a proper evidential basis for showing the falsity of previous complaints. The circumstances show an inherent unlikelihood of unpursued allegations of sexual abuse against a number of men being true. The evidence should have been admitted because the credibility of the complainant was of critical importance and any difference between the issues of consent and credit were reduced to vanishing point in this sort of case: see R v Funderburk [1990] 90 Cr App R 466.
19. We have come to the conclusion that the judge properly came to the decision that the material relied on did not satisfy the necessary evidential test. The mere fact that a complaint is raised and is not pursued does not necessarily mean that a complaint is false. Courts should be ready to deploy a degree of understanding of the position of those who have made sexual allegations. Failure to pursue the complaint does not of necessity show that it is untrue. A rather closer examination of the circumstances is required.
20. In relation to (A), the matters concerning the victim's father had occurred between ten and 24 years previously at the time they were first mentioned to the police. The 2010 record of interview shows the victim's thought processes, which in our judgment do not support a suggestion of a false complaint. As to (B), there is no basis for saying that the allegation was false, and the matter could not be taken further in any event. As to (C), there was no material to show that the complaint was false. As to (D), the complainant gave reasons based on her past experiences as to why she did not want to make or pursue a complaint. They do not, in our judgment, tend to demonstrate that the account which she had given to her mother, and which she had confirmed to the police as accurate, was untrue.
21. None of the individual matters raised begins to provide a basis for an inference or conclusion of a false complaint. In those circumstances there is no advantage to the appellant in seeking to rely on an accumulation of negative results. The fact that there is no instance which begins to show falsity cannot be converted into evidence of falsity by the fact that complaints have been raised more than once. An earlier example of this approach being applied by the court is Etches [2004] EWCA Crim 1313.
22. In the circumstances, and for the reasons given, the submissions made by Mr Edie cannot succeed. Accordingly, this appeal against conviction is dismissed.