Stephenson, R v

Questioning a complainant about other false allegations of sexual abuse is not questioning about sexual behaviour for section 41 purposes. It may therefore be explored before a jury, but only where there is a proper evidential basis for asserting that the other allegations were false.

A trial judge’s ruling on a sexual-history application must be assessed by reference to the application and material actually advanced. A distinct speculative case first suggested on appeal cannot demonstrate error. Previous dishonesty does not itself establish untruthfulness, but convictions not involving false statements may still be capable of substantial probative value on a non-defendant witness’s truthfulness under the Criminal Justice Act 2003. A conviction remains safe where the excluded material could not have made a significant difference.

The appellant was convicted at Canterbury Crown Court of historic sexual offences, including rape, against a girl who had lived in the same household when she was aged 13 to 15.

He denied all sexual contact. At trial, he sought leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to question the complainant about an incident involving her mother’s boyfriend and her sexual relationship with her foster father. He also sought to question her about two cautions and a conviction for dishonesty.

On appeal, he contended that the restrictions prevented him from advancing that her allegations were false and arose from psychological disturbance, and that the exclusion of her bad character rendered the convictions unsafe.

1. Appeal dismissed. The trial judge’s rulings did not render the convictions unsafe.

2. The court confirmed that, where there is a proper ground for alleging that a complainant has made other false allegations of sexual abuse, questioning about those allegations does not concern sexual behaviour and falls outside section 41 of the Youth Justice and Criminal Evidence Act 1999. The asserted pattern of false allegations had no factual foundation. The alleged conduct of Manners was accepted as true, and the complainant had not alleged abuse by several of the other men named in the defence case statement.

3. The actual section 41 application was confined to Manners and David Ralph. It did not assert that either allegation was false or that the complainant had transferred conduct by Ralph to the appellant. The suggested alternative theory was raised only on appeal, lacked an evidential basis, and was inconsistent with the complainant’s account that the appellant’s conduct began before any suggested continuing relationship with Ralph. The judge could not be faulted for refusing the application as made.

4. The judge had erred in treating R v Hanson [2005] EWCA Crim 824 as meaning that dishonesty not involving false statements could not have substantial probative value regarding a non-defendant witness’s truthfulness under section 100 of the Criminal Justice Act 2003. The caution applicable to a Crown application to adduce a defendant’s bad character did not directly govern a defendant’s attempt to deploy relevant material in his defence. Even so, the complainant’s minor and dated dishonesty matters could not have made a significant difference to the jury’s assessment. The convictions were therefore safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2006] EWCA Crim 2325.
• Crown Court at Canterbury: convicted the appellant of historic sexual offences against the complainant.