Cooper & Anor, R v

In a sexual-offence trial, questioning a complainant about other complaints of sexual abuse requires leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 where the defence has no proper evidential basis for alleging that those complaints were false. Such questioning would otherwise elicit other sexual behaviour or experience for a discrediting purpose.

Questions about a failure to mention the allegations charged, or genuine inconsistencies in accounts of those allegations, stand differently. A trial judge may restrict wider questioning where it would be unmanageable, distracting and of little assistance to the issues for the jury. The resulting convictions remain safe where the jury has received sufficient material to assess credibility and the additional questioning could not realistically have affected the verdict.

Cooper and Betts appealed, with leave, against convictions at Nottingham Crown Court before HHJ Benson. Cooper was convicted of offences of indecency with a child and indecent assault. Betts was convicted jointly with him on two counts of indecency with a child.

The allegations were made by children after their placement with foster carers. The Crown adduced edited first video interviews and agreed admissions, including that the children had made complaints of sexual activity involving adults other than the appellants. It did not adduce the children’s further interviews or detailed allegations against other people.

The central issue was whether the judge wrongly prevented the defence from putting the full course and content of those other complaints before the jury, whether by evidence or cross-examination, and whether that restriction rendered the convictions unsafe.

1. The appeals were dismissed. The court held that the judge was entitled to treat the proposed questioning as subject to section 41 of the Youth Justice and Criminal Evidence Act 1999.

2. Questions concerning other complaints of sexual abuse, without a proper basis for alleging that they were false, were questions about the complainants’ sexual behaviour or experience. They therefore required leave. The court applied R v T and H [2001] EWCA Crim 1877. The fact that the defence sought to attack credibility did not alter the substance of the proposed inquiry.

3. The judge had nevertheless allowed relevant challenges. The jury knew that other complaints had been made. It also heard evidence about the children’s earlier failure to make allegations and about actual inconsistencies in their accounts. The judge was entitled to refuse a far wider inquiry, which would have been difficult to control, liable to confuse young witnesses, and likely to divert the trial into independent allegations.

4. The suggested alternative of calling the foster carer and playing the full interviews did not assist. The material was not evidence on an issue in the case. Nor, absent a denial capable of contradiction, could it be admitted as inconsistent statements under sections 4 and 5 of the Criminal Procedure Act 1865. R v Funderburk (1990) 90 CAR 466 concerned a materially different situation.

5. In any event, the court held that unrestricted questioning about the later complaints could not reasonably have made a significant difference to the jury’s assessment of guilt. The convictions were safe.

• Court of Appeal (Criminal Division) — The appeals against conviction were dismissed in [2003] EWCA Crim 29.
• Crown Court at Nottingham (HHJ Benson) — Cooper and Betts were convicted on 15 April 2002. Cooper was sentenced to concurrent terms of two and four years’ imprisonment; Betts received concurrent terms of 15 months’ imprisonment.