White, R. v

Section 41 of the Youth Justice and Criminal Evidence Act 1999 does not permit evidence of a complainant’s prostitution merely because it may be given a date and place. Under section 41(6), the proposed evidence must concern a specific episode whose circumstances have identifiable probative force.

General evidence of prostitution does not, without more, bear on consent, credibility, injury, or an alleged demand for money. Evidence of sexual activity with third parties will rarely justify a wider construction of section 41 under section 3 of the Human Rights Act 1998. R v A (No 2) [2002] 1 AC 45 does not alter the requirement of strict contemporaneity or make such general evidence admissible.

The appellant was convicted of rape at Birmingham Crown Court and sentenced to five years’ imprisonment. His case was that the complainant had consented. Her account was that he had used force and caused injuries during the rape.

Before trial, the judge refused leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the complainant about her past and contemporary prostitution. The judge permitted questions directed to an alleged expectation of payment on the particular date, but not questions establishing that she had worked as a prostitute.

On appeal, the appellant contended that the evidence was relevant to consent, the source of the complainant’s injuries, credibility, and an alleged dispute over money. He further relied on R v A (No 2) [2002] 1 AC 45 and the right to a fair trial under article 6. The central issue was whether the exclusion made the conviction unsafe.

1. Appeal dismissed. The trial judge was right to exclude the proposed cross-examination. The conviction was safe.

2. Section 41(6) requires evidence or questioning admitted under section 41(3) or (5) to concern a specific episode of sexual behaviour with potential probative force. A general assertion that the complainant was a prostitute, or a series of encounters identifiable only by date and place, did not satisfy that requirement. The suggested evidence was not directed to the particular circumstances of any specific episode.

3. The material did not meet section 41(3). It was too general to establish that any act of prostitution was sufficiently contemporaneous under section 41(3)(b), and it revealed no significant similarity for section 41(3)(c). The questions about injury and the alleged wallet dispute were inseparable from consent. On the facts, the proposition that prostitution made the complainant more likely to seek money or to consent lacked distinct probative force under section 41(3)(a).

4. Evidence introduced merely to challenge the complainant’s general credibility was barred by section 41(4). A complainant’s status as a prostitute could not itself support an inference that she was more likely to have consented. A prostitute is as entitled to refuse consent as any other woman.

5. R v A (No 2) [2002] 1 AC 45 did not assist the appellant. Its discussion of section 3 of the Human Rights Act 1998 principally concerned prior sexual activity between the complainant and the accused. It was not authority for a wider reading of section 41 in relation to sexual activity with third parties. It also preserved the requirement that section 41(3)(b) concerns strictly contemporaneous conduct. No relevant temporal proximity was shown here.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed in [2004] EWCA Crim 946.

• Birmingham Crown Court: The appellant was convicted of rape on 28 March 2003 and sentenced to five years’ imprisonment on 13 June 2003.