TW, R v

Questions about a complainant’s previous statements concerning sexual experience fall within section 41 unless the defence unequivocally alleges, on an evidential basis, that the statements were false. In that exceptional situation, the questioning concerns credibility rather than sexual behaviour.

Leave should be refused where historic material has little bearing on a genuine issue and the defence primarily asserts actual consent rather than an honest but mistaken belief in consent. A conviction and acquittal based on the same complainant’s evidence are not logically inconsistent merely for that reason. Intervention is justified only where no properly directed reasonable jury could have reached the differing verdicts.

The appellant was convicted in the Crown Court at Liverpool of two rapes, attempted rape and two indecent assaults upon his blind sister-in-law. He was acquitted of four further sexual offences and received concurrent sentences totalling five years’ imprisonment.

He appealed against conviction on two grounds. First, he challenged the trial judge’s refusal to permit cross-examination about statements allegedly made by the complainant concerning earlier relationships with men. The proposed questioning was said to bear on his belief in consent. Secondly, he contended that the convictions were inconsistent with the acquittals.

The central issues were the scope and exercise of the court’s powers under Youth Justice and Criminal Evidence Act 1999, section 41, and the threshold for appellate intervention on allegedly inconsistent jury verdicts.

1. Appeal dismissed. The convictions were not unsafe.

2. The proposed cross-examination concerned statements relating to prior sexual behaviour and therefore fell within section 41 of the Youth Justice and Criminal Evidence Act 1999. The exception identified in R v T and H [2001] EWCA Crim 1877 applies where there is an evidential basis for an unequivocal allegation that earlier sexual complaints or statements were false. The questioning then concerns lying and credibility, not sexual behaviour. That was not the defence case here.

3. The court accepted the explanation in R v C and B [2003] EWCA Crim 29. If earlier complaints are not challenged as false, questioning about them would necessarily place the underlying sexual behaviour or experience before the jury and could be used to discredit the complainant. Section 41 would otherwise be undermined.

4. The trial judge correctly refused leave. The alleged behaviour was of ancient origin. More importantly, the appellant’s primary case was that the complainant had in fact consented and initiated the sexual acts. Honest but mistaken belief in consent was only a secondary issue. The proposed material did not justify the requested cross-examination.

5. The verdicts were not logically inconsistent. The jury could rationally be unsure whether events wholly denied by the appellant had occurred, while accepting the complainant’s evidence about events whose occurrence was undisputed but whose consensual nature was contested. An appellate court intervenes only where no reasonable properly directed jury could have reached the differing conclusions.

• Court of Appeal (Criminal Division): The appellant’s conviction appeal was dismissed: [2004] EWCA Crim 3103.
• Crown Court at Liverpool: On 24 March 2004 the appellant was convicted of five sexual offences and acquitted of four others. On 10 May 2004 he received concurrent sentences totalling five years’ imprisonment.