R v Soroya

Section 41 of the Youth Justice and Criminal Evidence Act 1999 does not make a trial unfair where a complainant’s statement about sexual experience formed part of the alleged incident and was relevant to consent. The prosecution may adduce that statement, provided its falsity is exposed so that the jury is not misled. This is not reliance on sexual history as a forensic device to disadvantage the defence.

In an appropriate case, section 78 of the Police and Criminal Evidence Act 1984 may protect fairness where section 41 has an adverse effect on a defendant. No such unfairness arose here.

The appellant was convicted at the Crown Court at Blackfriars of rape and sentenced to six years’ imprisonment. His case was that the sexual activity was consensual; the complainant alleged rape.

On appeal, the appellant contended that the prosecution had been permitted to introduce evidence of the complainant’s previous sexual history when the defence could not cross-examine on that subject because of section 41 of the Youth Justice and Criminal Evidence Act 1999. He argued that this created unfairness and inequality of arms.

The court also received fresh-evidence grounds concerning the complainant’s credibility. It dismissed the section 41 ground and adjourned the fresh-evidence issues for later consideration.

1. The section 41 ground of appeal was dismissed. The appeal remained to be considered on the adjourned fresh-evidence issues.

2. The Crown had not relied on the complainant’s sexual history, directly or indirectly. Her assertion during the alleged rape that she had not previously had sexual intercourse was an admitted untruth, but it was part of the verbal exchange relied on to show lack of consent and the appellant’s knowledge of it. It was therefore relevant and admissible.

3. The jury had to be told that the assertion was untrue. The agreed course exposed the falsity while making clear that the defence could not pursue general questioning about sexual history under section 41 of the Youth Justice and Criminal Evidence Act 1999. It did not permit the Crown to evade the statutory protection or create an unfair forensic advantage. The defence had no material, either at trial or after investigation, showing that relevant sexual-history evidence had been excluded.

4. The court rejected the claimed infringement of article 6 of the European Convention on Human Rights. There was no unfairness in admitting the evidence. If the jury had accepted, or possibly accepted, the appellant’s account of consent, it would have acquitted him.

5. The court added, as guidance for a different case, that section 78 of the Police and Criminal Evidence Act 1984 is capable of protecting a defendant where section 41 may adversely affect the fairness of proceedings. No exclusion application was made here, and the court considered that it would have failed.

• Court of Appeal (Criminal Division). In R v Soroya, [2006] EWCA Crim 1884, the court dismissed the section 41 ground of appeal and adjourned the fresh-evidence issues.
• Crown Court at Blackfriars. The appellant was convicted of rape on 22 June 2004 and sentenced to six years’ imprisonment on 5 July 2004.