Miah & Anor, R. v

Under Youth and Criminal Justice Act 1999, evidence of a complainant’s previous sexual behaviour may be admissible where it is relevant to an accused’s honest belief in consent, subject to the statutory safeguard against an unsafe conclusion. Where that belief rested on reports of prior conduct, the truth of the reported conduct was irrelevant; the issue was whether the accused held the belief. A trial judge has no general discretion to exclude relevant evidence that properly satisfies the statutory criteria. However, a conviction is not unsafe merely because a limited part of such evidence was wrongly excluded, where the omitted detail could not materially affect the jury’s resolution of the real issues.

Miah and Uddin were convicted at Snaresbrook Crown Court of kidnap and indecent assault. They appealed against conviction. Their case at trial was that the complainant had consented to the limited sexual contact which they admitted and had not sought to leave the car.

They sought to rely on conduct at an earlier party as supporting an honest belief in consent. The trial judge allowed evidence of some prior conduct and of their asserted beliefs, but excluded cross-examination and third-party evidence intended to prove that the complainant had had intercourse with another man at that party. He also excluded the name of the alleged source of that information.

The central issue was whether those restrictions on evidence of previous sexual behaviour under Youth and Criminal Justice Act 1999, section 41, rendered the convictions unsafe.

1. Appeals dismissed. The judge correctly excluded evidence intended to establish the truth of whether the complainant had intercourse with another man at the earlier party. The appellants’ asserted beliefs depended on what they had been told, not on whether the reported event had in fact occurred. Proof of the event was therefore irrelevant to honest belief and inadmissible.
2. Applying the principles in R v A (No 2), [2001] UKHL 25, section 41 had to permit evidence needed for a fair trial, while protecting the complainant from unnecessary indignity. Evidence concerning behaviour with third parties required particularly careful control. The court’s statutory task was to identify relevant evidence and to ensure that refusal of leave would not render a conclusion unsafe.
3. Applying R v F, [2005] EWCA Crim 493, once evidence about an honest belief had been accepted as relevant and admissible, the source of the information supporting that belief was, in principle, relevant. The judge therefore erred in excluding the identification of the source, namely the alleged informant.
4. The error did not make either conviction unsafe. Evidence about an honest belief in sexual consent was of marginal, if any, relevance to kidnap. On the indecent-assault count, the decisive question was whose account of events in the car the jury accepted. The excluded identification added very little and could not have affected the verdicts.

• Court of Appeal (Criminal Division): dismissed the appeals against conviction, holding that the limited wrongful exclusion of evidence did not make the verdicts unsafe.
• Crown Court at Snaresbrook: convicted both appellants of kidnap and indecent assault and imposed concurrent custodial sentences.