F, R. v

Evidence about a complainant’s sexual history is admissible under section 41(5) of the Youth Justice and Criminal Evidence Act 1999 where it goes no further than rebutting evidence adduced by the prosecution.

A conviction is unsafe where relevant admissible evidence was withheld and the appellate court cannot exclude a realistic possibility that its proper exploration would have affected the jury’s assessment. That may extend to verdicts on non-intercourse counts where the allegations and the complainant’s credibility are closely intertwined.

The appellant was tried before Her Honour Judge Smith on allegations of sexual offending against LB and her sister, SB. He was convicted of four counts of indecent assault against LB. The jury acquitted him of one rape count and did not reach verdicts on two further rape counts or the counts concerning SB.

At trial, the judge restricted cross-examination of LB about medical records concerning a pregnancy. The records attributed the pregnancy to a condom accident with a boyfriend and recorded later prescription of oral contraception. The defence contended that this evidence should have been admitted and that its exclusion rendered the convictions unsafe.

The central issue was whether the restriction was lawful and, if it was not, whether the resulting unfairness affected the safety of the indecent-assault convictions.

1. Appeal allowed. The convictions for indecent assault were quashed and a retrial was ordered.

2. The medical material was capable of rebutting the prosecution case. LB’s account suggested that the appellant was the only possible source of her pregnancy or pregnancy scare. Her recorded account to her doctor, attributing it to a condom accident with a boyfriend, materially altered that position. The evidence went no further than rebutting prosecution evidence and was therefore admissible under section 41(5) of the Youth Justice and Criminal Evidence Act 1999.

3. The court did not know how LB would have explained the medical record if cross-examined. Nevertheless, the evidence should have been available for proper exploration before the jury. Its exclusion would have made any rape convictions unsafe.

4. Although the jury had been directed to consider each count separately, the alleged indecent assaults and alleged intercourse were wholly intertwined. The court could not exclude the realistic possibility that full evidence about the pregnancy would have affected the jury’s view of LB’s credibility, including its verdicts on indecent assault. The decision was expressly fact-specific.

5. The four convictions were quashed. The court ordered a retrial of those counts with the two rape counts on which the jury had not agreed, subject to case-management decisions. The appellant was released on bail on his pre-conviction conditions.

• Court of Appeal (Criminal Division): Allowed the appeal in [2008] EWCA Crim 2859, quashed the four indecent-assault convictions and ordered a retrial.
• Crown Court: Following trial before Her Honour Judge Smith, the appellant was convicted of four counts of indecent assault against LB. He was acquitted of one rape count, and the jury did not reach verdicts on two further rape counts.