Davarifar v R

A challenge to a complainant’s credibility based on an earlier allegedly false allegation requires a proper evidential basis: evidence capable of satisfying a jury that the earlier allegation was false. Such questioning is not, without more, questioning about sexual behaviour under section 41 of the Youth Justice and Criminal Evidence Act 1999.

However, a conviction is not unsafe merely because that material was omitted. The appellate question is whether the evidence was reasonably capable of producing a different verdict. A historic allegation, even if false, will not justify quashing a conviction where it does not explain compelling contemporaneous evidence supporting the complainant’s account.

The appellant was convicted at the Crown Court at Kingston of rape contrary to section 1 of the Sexual Offences Act 2003 and sentenced to six years’ imprisonment.

After the jury had retired, trial counsel raised material concerning an earlier, unrelated allegation of historic sexual abuse made by the complainant. Counsel did not then seek to reopen the evidence. The appellant contended on appeal that the material provided a basis for alleging that the earlier allegation was false and that it could have undermined the complainant’s credibility.

The court granted leave to appeal after refusal by the single judge. The central questions were whether there was a proper evidential basis for the suggested challenge and, if so, whether the omitted evidence was reasonably capable of leading to a different verdict.

Appeal dismissed. The court held that there was no real prospect that the proposed evidence would have led to the appellant’s acquittal.

1. The court accepted the legal framework stated in T and H [2001] EWCA Crim 1877. Questions about a complainant’s previous false allegations are not questions about sexual behaviour within section 41 of the Youth Justice and Criminal Evidence Act 1999. Cross-examination on such an allegation requires a proper evidential basis. As explained in Murray [2009] EWCA Crim 618, that means evidence capable of satisfying the jury that the earlier allegation was false.

2. The decision not to prosecute the alleged earlier abuser was irrelevant. Whether a proper evidential basis existed was for the court, not the CPS. The evidence that the earlier allegation was false was generally weak, although the court was prepared to assume that the contradiction between the complainant and a former social worker met the threshold.

3. The court also assumed in the appellant’s favour that any requirements under sections 98 and 100 of the Criminal Justice Act 2003 could be met. It nevertheless observed that an allegation which was false because of personality difficulties might not be reprehensible behaviour, and that a historic allegation had limited apparent probative value concerning an immediate complaint of rape.

4. The prosecution case was very strong. The complainant’s prompt 999 call, distressed condition, communications with her friend, accounts given immediately afterwards, and supporting evidence from the neighbour were consistent with her account. The jury already knew of matters capable of affecting her reliability. An earlier historic allegation, even if false, would not explain the contemporaneous evidence. The conviction was therefore safe.

• Court of Appeal (Criminal Division) — Leave to appeal against conviction was granted by the full court after refusal by the single judge. The appeal was dismissed: [2009] EWCA Crim 2294.
• Crown Court at Kingston — The appellant was convicted of rape contrary to section 1 of the Sexual Offences Act 2003 and sentenced to six years’ imprisonment.