Mitchell, R v

Under Youth Justice and Criminal Evidence Act 1999, section 41(5) may permit specific evidence of a complainant’s sexual behaviour which rebuts or explains sexual-behaviour evidence adduced by the prosecution. It is not subject to the temporal condition governing section 41(3), and the credibility restriction in section 41(4) applies only to section 41(3).

However, leave remains confined to evidence necessary for a fair trial. An unduly restrictive ruling will not make a conviction unsafe where the omitted evidence would add nothing significant to the jury’s assessment and could properly have been excluded as unnecessary. A tactical decision by trial counsel to proceed without a prosecution witness will justify appellate intervention only exceptionally; a tenable decision which carries an evident forensic advantage does not undermine the safety of the conviction.

The appellant was convicted at Birmingham Crown Court of rape and of possessing a kitchen knife. The prosecution alleged that he used the knife to compel intercourse. The appellant contended that the complainant was a prostitute and that the intercourse was consensual.

On appeal, he challenged the trial judge’s limits on cross-examination and evidence concerning the complainant’s alleged prostitution shortly before, and two days before, the alleged rape. He also contended that trial counsel had made a grave error by agreeing to proceed when Andrew Steer, a prosecution witness expected to give recent-complaint evidence, did not attend.

The central issues were whether the exclusion of the proposed sexual-behaviour evidence, and the decision to continue without that witness, rendered the rape conviction unsafe.

1. Appeal dismissed. The court was satisfied that the rape conviction was safe.

2. The court held that section 41(5) of the Youth Justice and Criminal Evidence Act 1999 was engaged by the proposed evidence that the complainant had been working as a prostitute two days before the alleged rape. The evidence could rebut the prosecution evidence that she had ceased that work. Unlike section 41(3), section 41(5) contains no requirement that the behaviour occurred at or about the same time. Further, section 41(4)’s restriction on evidence directed only to credibility applies only for the purposes of section 41(3). This approach was consistent with R v. A (No 2) [2002] 2 Crim App R 351.

3. The trial judge had therefore taken too restrictive a view of section 41(5). Nevertheless, the exclusion did not undermine the conviction. The evidence concerning the earlier date was vague and came only from one witness. If the jury accepted that witness’s evidence of prostitution shortly before the encounter, the defence already had the rebuttal it needed. If it rejected that evidence, it was highly unlikely to accept her unsupported evidence about the earlier date. A properly directed judge could also have concluded that extending the cross-examination would go further than was necessary for a fair trial.

4. The jury had properly been directed that a lie about prostitution would not preclude conviction if it was sure that the appellant had used a knife and threats. The matching knife found on his arrest, his later account and other evidence provided a formidable case.

5. The absence of Mr Steer did not make counsel’s agreement to continue an exceptional error within Clinton (1993) 97 Cr App R 320. His evidence would have included a damaging account of recent complaint. Counsel’s tactical judgment was tenable and did not affect the safety of the conviction.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and held the conviction safe ([2004] EWCA Crim 3206).
• Crown Court at Birmingham: on 25 March 2002, convicted the appellant of rape by a majority and of possessing an article with a blade unanimously; imposed life imprisonment for rape and a concurrent 12-month sentence for the knife offence.