Cartwright, R v

The substitution of the definition of “sexual offence” by the Sexual Offences Act 2003 did not impliedly remove the protection in section 41 of the Youth Justice and Criminal Evidence Act 1999 from trials after 1 May 2004 for offences committed earlier. Statutory language must be read in its legislative context. A construction creating an unintended gap in a continuing procedural protection, and producing incoherent results between complainants, should be rejected where it defeats Parliament’s evident purpose.

A trial judge may refuse leave for sexual-history cross-examination where its real purpose is to impugn the complainant’s credibility and it does not assist on a live issue. Jury verdicts are not inconsistent merely because the jury accepts supported parts of a complainant’s evidence but is not sure about others.

Kevin Cartwright appealed against convictions at Stafford Crown Court for a specimen count of rape during 1998, a specimen count of indecent assault during 1998, and assault occasioning actual bodily harm. He had been acquitted on other counts and the jury had failed to agree on one count.

The trial judge refused leave to cross-examine the complainant about an alleged affair said to have prompted an argument before she left for Leeds. On appeal, a preliminary issue arose whether section 41 of the Youth Justice and Criminal Evidence Act 1999 remained available at a 2007 trial for alleged offences under the former sexual-offences regime, after the commencement of the Sexual Offences Act 2003. The appellant also contended that the section 41 ruling was unfair and that the verdicts were logically inconsistent.

1. Appeal dismissed. Section 41 applied to the trial. The substitution by paragraph 41(3) of Schedule 6 to the Sexual Offences Act 2003 of a new definition of “sexual offence” in section 62(1) of the Youth Justice and Criminal Evidence Act 1999 did not abolish the section 41 protection for trials after 1 May 2004 concerning offences committed before that date.

2. That conclusion followed from the statutory context and purpose. Section 41 was a procedural and evidential protection operating at trial. It had not been repealed, disapplied or amended, but had been extended to the new offences. A literal construction would create arbitrary differences between complainants according only to the date of offending or retrial. It would also revive the discredited common-law approach to sexual-history questioning for a limited class of cases. Those consequences were incoherent with Parliament’s evident purpose.

3. The absence of an express saving or transitional provision was relevant but not decisive. The court held that Parliament plainly intended the statutory protection to continue for all complainants in trials for sexual offences, whether the offences fell within the former or substituted definition. The court therefore declined to follow the contrary unreported decision in R v Warner.

4. The court did not finally decide whether section 16 of the Interpretation Act 1978 would independently preserve the protection. It doubted that a complainant who first complained after 1 May 2004 had then acquired even an inchoate or contingent right to a trial safeguard.

5. The judge correctly refused the proposed cross-examination. Even if the alleged affair explained the start of an argument, it did not assist on whether the appellant had sexually assaulted the complainant or overborne her unwillingness during 1998. The judge was entitled to conclude under section 41(4) that its purpose or main purpose was to impugn her credibility.

6. The verdicts were rational. The jury had been directed to consider each count separately. It could accept the complainant’s account for 1998, where there was independent supporting evidence from her daughter and medical evidence of injury, while remaining unsure about other allegations. That did not amount to logical inconsistency.

• Court of Appeal (Criminal Division): Appeal dismissed; the convictions were upheld: [2007] EWCA Crim 2581.

• Stafford Crown Court: Before HH Judge Glenn and a jury, the appellant was convicted on 9 February 2007 of rape, indecent assault and assault occasioning actual bodily harm.