Flint, R v

Where sexual-history evidence is relevant to a live non-consent issue, and satisfies the statutory conditions, section 41 of the Youth Justice and Criminal Evidence Act 1999 does not confer a residual discretion to exclude or restrict it. Evidence does not fall outside section 41(3) merely because it may impugn the complainant’s credibility; its purpose or main purpose must be to do so. Once evidence about an adult sexual relationship is admitted, material capable of resolving a genuine dispute about its nature should not be artificially excluded. A restriction which deprives the defence of evidence potentially supporting its account may render the jury’s conclusions, and consequently the convictions, unsafe.

The appellant was convicted at Leicester Crown Court of three specimen counts of rape and two specimen counts of gross indecency with a child, receiving a total sentence of 14 years’ imprisonment. He denied all childhood sexual abuse of his step-daughter.

Both parties accepted that, after she reached adulthood, they had lived together in a consensual sexual relationship. The complainant maintained that she participated only because of his continuing control and fear. The appellant contended that the relationship was mutually happy and that her later complaint was revenge after he ended it.

The trial judge admitted evidence of the adult relationship but, under section 41 of the Youth Justice and Criminal Evidence Act 1999, excluded videos and most photographs which the appellant said demonstrated her willing and enthusiastic participation. The central issue was whether that exclusion was required and whether it rendered the convictions unsafe.

1. Appeal allowed. The convictions were quashed and a new trial was ordered.

2. The evidence concerned a non-consent issue. Under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999, the adult relationship was relevant both to the alleged motive for a false complaint and to the central question whether childhood abuse had occurred. The fact that cross-examination might affect the complainant’s credibility did not itself establish that its purpose or main purpose was credibility impeachment within section 41(4).

3. Section 41 did not give the judge a general discretion to exclude relevant evidence once the statutory conditions for admission were met. The judge retained responsibility for the orderly and courteous conduct of the trial and for protecting the complainant from unnecessary humiliation or aggressive questioning. That responsibility could not justify withholding admissible evidence merely because it was stark or compromising.

4. The parties’ competing accounts made the nature of the adult relationship vital. The videos and photographs were capable of supporting the appellant’s case that the complainant had been a willing participant, rather than merely submissive through fear. By admitting the fact of the relationship but excluding material potentially bearing on that dispute, the ruling created an artificial and incomplete evidential picture. There was a real possibility that the jury’s conclusions on the occurrence of childhood abuse and on alleged revenge as a motive for complaint were unsafe.

5. Proper case management could reduce any risk of humiliation. Where appropriate, sensitive video material could be shown to the jury without requiring the complainant to answer questions while it was displayed.

• Court of Appeal (Criminal Division) — allowed the appeal, quashed the convictions and ordered a new trial: [2005] EWCA Crim 493.
• Crown Court at Leicester — convicted the appellant by majority verdict of three specimen counts of rape and two specimen counts of gross indecency with a child, and imposed a total sentence of 14 years’ imprisonment.