Singh, R v

Evidence of a complainant’s sexual behaviour whose main purpose is to impeach credibility cannot be treated as relating to a relevant issue under section 41(3) of the Youth Justice and Criminal Evidence Act 1999. The exception in section 41(5) requires material which genuinely rebuts or explains prosecution evidence of sexual behaviour; evidence of intercourse with another person will not, without more, rebut evidence of intercourse with the defendant.

At a retrial, the sentencing judge must visibly exercise an independent discretion. In grave multiple sexual offences, individual terms may be proper but consecutive sentences must still satisfy totality.

The appellant was retried at Maidstone Crown Court after his earlier convictions for rape had been set aside following fresh evidence. At the retrial he was convicted of two rapes and attempted rape, and received consecutive sentences totalling 19 years’ imprisonment.

The defence sought leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the second complainant about intercourse with another man before the alleged rape, and to call supporting evidence. The application was refused. The appellant renewed his application for leave to appeal conviction, contending that the evidence went to whether intercourse with him had occurred rather than to credibility. He also appealed against sentence.

1. The Court refused the renewed application for leave to appeal against conviction, but allowed the appeal against sentence. It substituted eight years’ imprisonment for the 12-year consecutive sentence on the second rape count, reducing the total from 19 to 15 years.

2. The proposed questioning and evidence concerned the complainant’s sexual behaviour. Their real purpose was to show that she had lied at the first trial. There was no material distinction between challenging a witness’s credibility and challenging whether she had given truthful evidence. By section 41(4) of the Youth Justice and Criminal Evidence Act 1999, material introduced mainly to impeach credibility could not be treated as relating to a relevant issue for section 41(3).

3. The alternative reliance on section 41(5) also failed. Evidence that the complainant had intercourse with another man did not, without evidence that she had intercourse on only one occasion, rebut or explain evidence that she had intercourse with the appellant. Further inquiry of the doctor would have been speculative. The prosecution had not relied at the retrial on the complainant’s alleged virginity.

4. R v T; R v H, [2001] EWCA Crim 1877, did not assist the appellant. In those appeals the proposed questions concerned past statements or failures to complain, rather than sexual behaviour, so section 41 did not automatically apply. The present proposed evidence was materially different.

5. On sentence, the Court stated that a judge sentencing after a retrial must exercise an independent discretion and give sufficient reasons to show that this has occurred. The offences were exceptionally grave and had features of the beginning of a campaign of rape of the kind considered in Billam, (1986) 8 Cr. App. R (S) 48, but had not reached that stage. The individual terms could stand, but their total was excessive under the totality principle.

• Court of Appeal (Criminal Division) — in this judgment, [2003] EWCA Crim 485, refused renewed leave to appeal against conviction and allowed the appeal against sentence to the extent of reducing the total term to 15 years.

• Crown Court at Maidstone — following a retrial, convicted the appellant on 29 June 2001 of two counts of rape and one count of attempted rape, and imposed consecutive sentences totalling 19 years.

• Court of Appeal (Criminal Division) — on 22 January 2001 allowed the appellant’s appeal from the original convictions after admitting fresh evidence, and ordered a new trial.

• Crown Court — at the original trial in March 1999, convicted the appellant and imposed a total sentence of 19 years’ imprisonment.