E v R.

Youth Justice and Criminal Evidence Act 1999, section 41 protects complainants from questioning which, in substance, investigates their sexual behaviour or sexual experience. A sexual experience includes abuse inflicted on a child, irrespective of the child’s understanding of its sexual character.

Questions about earlier or later allegations may fall outside section 41 only where the defence has a proper evidential basis that the allegations were made and were untrue. Without that basis, questioning which foreseeably leads to an inquiry into sexual behaviour is prohibited. Excluding speculative and potentially unbounded collateral inquiries is proportionate and compatible with article 6.

The appellant was convicted at the Crown Court at Derby of four counts of indecent assault against his two young daughters. The prosecution relied on video interviews conducted when the children were aged six and four.

About 15 months later, while living with foster parents, the children made further allegations of sexual and physical abuse by several other people. No investigation, interview or charge followed those later allegations. At trial the appellant sought leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the complainants about them, contending that their breadth showed fabrication or fantasy and undermined their credibility.

The trial judge refused the wider cross-examination. The appeal challenged whether the later alleged abuse was a sexual experience within section 41, whether the proposed questioning was permitted by R v T [2002] 1 WLR 632, and whether its exclusion was compatible with article 6.

1. The appeal was dismissed. The trial judge correctly excluded the proposed cross-examination. The absence of evidence that the later allegations were untrue meant that the appellant could not use them as a proper foundation for attacking the complainants’ credibility.

2. The phrase sexual experience in section 41 is objective. Sexual abuse inflicted on a child is a sexual experience even if the child lacks an understanding of sexual matters. A subjective test would withdraw statutory protection from young and otherwise vulnerable complainants, and would require inappropriate examination of their sexual knowledge merely to decide whether the protection applied.

3. Section 41 is not confined to rape or to consent. Its language concerns sexual offences generally, and section 41(3)(a) expressly contemplates issues other than consent.

4. The court followed R v T [2002] 1 WLR 632. Questions about prior or subsequent allegations may concern statements rather than sexual behaviour, but the defence must first have a proper evidential basis that the statement was made and was untrue. That requirement was not met. The proposed questioning would first have required the complainants to confirm their later allegations and would then have led either to unanswerable allegations against named third parties or to collateral factual investigations without a clear limit.

5. Article 6 did not require that course. Applying the proportionality approach discussed in R v A (No 2) [2002] 1 AC 45, the exclusion fairly protected vulnerable witnesses, third parties and the manageable conduct of the trial. The inquiry was speculative, intrusive and could not reliably be expected to advance the defence.

• Court of Appeal (Criminal Division) — dismissed the appellant’s conviction appeal: [2004] EWCA Crim 1313.
• Crown Court at Derby — convicted the appellant of four counts of indecent assault. No citation for the trial decision was stated.