V, R. v

Under Youth Justice and Criminal Justice Act 1999, section 41 encompasses a complainant’s experience as the victim of sexual offending. However, a genuinely directed challenge that a previous sexual complaint was false may fall outside section 41 when it concerns the alleged lie rather than the sexual conduct. The challenge requires a proper evidential basis for both the previous statement and its asserted falsity.

Evidence of a witness’s bad character, including cross-examination, requires leave under section 100 of the Criminal Justice Act 2003 unless an agreed route applies. A wrongful refusal may nevertheless leave a conviction safe where the excluded material could not realistically have affected the jury’s verdict.

The appellant was convicted at the Crown Court sitting at Winchester of assaulting his daughter, J, by penetration and of two rapes. He received concurrent sentences of 10 years’ imprisonment.

His appeal against conviction challenged rulings which prevented cross-examination of J, and possible rebuttal evidence, about three earlier incidents. The Lymington and McDonald’s incidents concerned alleged sexual complaints. The teacher incident concerned an alleged accusation that a teacher had pushed her.

The central issues were whether the proposed material could be pursued under section 41 of the Youth Justice and Criminal Justice Act 1999, section 100 of the Criminal Justice Act 2003, and section 4 of the Criminal Procedure Act 1865, and whether any erroneous ruling rendered the convictions unsafe.

1. Appeal dismissed. The court held that the ruling on the Lymington incident was erroneous, but the convictions remained safe. The appellant therefore could not succeed on the conviction appeal.
2. Section 41 of the Youth Justice and Criminal Justice Act 1999 applied to a complainant’s experience as a victim of sexual offending, even where she did not herself engage in sexual conduct. The court followed R. v. BT and MH [2002] 1 Cr.App.R. 294: a genuine challenge to the falsity of an earlier sexual complaint lies outside section 41 if directed to the alleged lie rather than the sexual behaviour. There must, however, be a proper evidential basis for asserting that the complaint was made and was false.
3. The evidence from C that J had admitted the Lymington complaint was false supplied that basis. The proposed cross-examination also passed the section 100 test under the Criminal Justice Act 2003. It should have been allowed. If J denied the admission, section 4 of the Criminal Procedure Act 1865 permitted C to prove the inconsistent prior statement after the statutory foundation had been laid. The court did not follow contrary indications in R. v. ADC and JB [2003] EWCA Crim 29.
4. There was no proper evidential basis for asserting that the McDonald’s incident was a false sexual allegation. The proposed questioning therefore failed section 41. The teacher incident either did not amount to reprehensible behaviour or had no substantial probative value under section 100.
5. Although credibility was central, the jury already knew of J’s sexual experience and poor behaviour. The unpursued Lymington allegation would not realistically have changed its conclusion. The convictions were safe; leave was refused so far as necessary and the appeal was dismissed.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2006] EWCA Crim 1901.
• Crown Court sitting at Winchester Convicted the appellant on one count of assaulting a child under 13 by penetration and two counts of rape, and imposed concurrent sentences of 10 years’ imprisonment. No lower-court citation was stated.