Bahador, R. v

Where a defendant relies on an honest belief in consent, that belief is not an issue of consent under Youth Justice and Criminal Evidence Act 1999, section 42(1)(b). Evidence bearing on that belief may therefore be relevant under section 41(3)(a).

Relevance alone does not require leave for questioning about a complainant’s sexual behaviour. The court must also be satisfied under section 41(2)(b) that refusal of leave might render the tribunal’s conclusion unsafe. The statutory discretion must be exercised in light of the Act’s protection against inappropriate and harassing cross-examination. Evidence with only slight bearing on the defendant’s asserted belief may properly be excluded where other, more immediate evidence addresses that belief and the conviction remains safe.

The appellant was convicted at the Crown Court at St Albans of indecent assault and sentenced to 12 months’ imprisonment. He had been acquitted of rape by a directed verdict and of attempted rape by the jury.

His defence to the indecent-assault count was that he honestly believed that the complainant would consent to sexual contact. Before trial, the judge refused leave to cross-examine the complainant about conduct allegedly performed on a nightclub stage. The application had incorrectly relied on section 41(3)(b) and (c) of the Youth Justice and Criminal Evidence Act 1999.

The appeal concerned whether that evidence was admissible under section 41 and, if it was relevant to honest belief, whether its exclusion made the conviction unsafe.

1. Appeal dismissed. The exclusion of the proposed evidence and cross-examination did not render the conviction unsafe.
2. Section 42(1)(b) of the Youth Justice and Criminal Evidence Act 1999 defines an issue of consent as whether the complainant in fact consented. It excludes the accused’s belief in consent. Since the defence was honest belief, section 41(3)(a), rather than section 41(3)(b) or (c), was capable of applying. The alleged nightclub conduct could, strictly, be relevant to that belief.
3. That conclusion did not determine admissibility. Under section 41(2), the court had also to decide whether refusing leave might render unsafe the jury’s conclusion on the relevant issue. The provision preserved a discretion and reflected Parliament’s policy of protecting complainants from inappropriate and harassing cross-examination.
4. On the facts, the alleged stage conduct had materially less potential effect on the appellant’s claimed belief than the conversation immediately before the assault, when he asked his co-accused whether the complainant was willing. The jury also heard evidence of the complainant’s intimate conduct with the co-accused. Further, the appellant did not mention the alleged stage conduct in his police interview.
5. The trial judge would therefore have been entitled to refuse leave under section 41(2)(b). The proposed questioning did not undermine the safety of the jury’s verdict.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2005] EWCA Crim 396.
• Crown Court at St Albans: the appellant was convicted of indecent assault and sentenced to 12 months’ imprisonment. He was acquitted of rape by direction and of attempted rape by the jury.