Hamadi, R. v

Under Youth Justice and Criminal Evidence Act 1999, section 41 may be read broadly enough to protect the accused’s right to a fair trial where a prosecution witness unexpectedly makes damaging assertions about a complainant’s sexual behaviour. Evidence elicited by defence cross-examination remains evidence adduced by the defence.

Third-party sexual behaviour must be genuinely probative of consent in the particular case. Sexual willingness within a circle of friends does not tend to prove willingness to have intercourse with an unknown person.

A finding of dangerousness may rest on a sustained pattern of predatory conduct and risk assessments. Denial of guilt is not an independent basis for dangerousness, but may bear on the offender’s capacity to reduce risk. A minimum term must reflect only substantial aggravating features.

The appellant was convicted of rape at the Crown Court at Newcastle and sentenced to imprisonment for public protection. The case turned at trial on conflicting accounts of whether the complainant had consented.

He sought leave to appeal against conviction on the exclusion of further sexual-history evidence, the late disclosure and proposed fresh forensic evidence concerning DNA on a torch, and evidence from a newspaper reporter. He also appealed against the finding that he was dangerous and against the minimum term.

The central issues were whether the excluded or fresh evidence rendered the conviction unsafe, whether the statutory threshold for imprisonment for public protection was met, and whether the minimum term was excessive.

1. Leave to appeal against conviction was refused. The appeal against sentence was allowed to the limited extent of reducing the minimum term. The sentence of imprisonment for public protection remained in force.

2. Section 41(5) of the Youth Justice and Criminal Evidence Act 1999 naturally concerns evidence placed before the jury by prosecution witnesses in examination-in-chief or elicited by prosecuting counsel. Applying the fair-trial principle recognised in R v A (No.2) [2001] UKHL 25, the provision may nevertheless require a broader reading where a prosecution witness unexpectedly volunteers potentially damaging sexual-behaviour evidence in defence cross-examination. That was not such a case. Defence counsel had pursued the relevant answer, so the evidence was adduced by the defence, not the prosecution.

3. The proposed evidence of the complainant’s prior sexual activity with Alan Dixon was not admissible under section 41(3)(c)(i), and its exclusion did not render the verdict unsafe under section 41(2)(b). The asserted similarities were capable of coincidental explanation and were not probative of consent to intercourse with a stranger who offered a lift. Evidence of sexual willingness among friends did not establish a willingness to have intercourse with an unknown person.

4. The delayed forensic report did not materially add to the information already given to the jury, and the admission based on that information was not misleading. The proposed further DNA evidence was incremental, could not exclude indirect transfer, and did not raise serious doubt about the safety of the conviction. The court therefore declined to receive it under section 23 of the Criminal Appeal Act 1968. The reporter evidence concerned peripheral discrepancies and likewise did not undermine the complainant’s credibility on the essential issues.

5. The judge was entitled to find a significant risk of serious harm under section 225(1)(b) of the Criminal Justice Act 2003. The conclusion rested on the appellant’s repeated late-night conduct in seeking vulnerable women, the offence’s violent features, and the probation risk assessments. His continued denial was relevant only because it impeded work to address the underlying risks; it was not treated as a reason in itself for finding dangerousness.

6. The judge erred by increasing the notional determinate sentence from eight to ten years for an element of abduction or detention that was not substantial. The court quashed the minimum term of four years and 285 days and substituted a minimum term of three years and 285 days.

• Court of Appeal (Criminal Division): In [2007] EWCA Crim 3048, leave to appeal against conviction was refused. The appeal against sentence was allowed to the limited extent of reducing the minimum term.
• Crown Court at Newcastle: Her Honour Judge Bolton convicted the appellant of rape and imposed imprisonment for public protection with a minimum term.