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Conduct falls outside section 98(b) of the Criminal Justice Act 2003 only where it has a sufficiently close connection with the actual investigation or prosecution; a merely temporal connection is insufficient. “Reprehensible behaviour” requires culpability or blameworthiness.

Evidence that a complainant made previous false allegations, including allegations of sexual misconduct, may have substantial probative value on credibility where consent is the central issue. “Substantial” means more than trivial, not conclusive. Once the statutory requirements and, where relevant, section 41 of the Youth Justice and Criminal Evidence Act 1999 are met, there is no further general discretion to exclude the evidence as a distraction.

The appellant was tried at the Crown Court at Southwark for sexual assault and rape. He accepted sexual contact and intercourse with the complainant, but maintained that both were consensual. The jury acquitted him of sexual assault but convicted him of rape by a majority. He was sentenced to five years’ imprisonment.

The defence sought to cross-examine the complainant and call three witnesses about her alleged conduct towards two other people, including previous allegedly false complaints to police. The trial judge excluded all the proposed material as non-defendant bad-character evidence lacking substantial probative value and likely to distract the jury. The appeal concerned the correct operation of the statutory bad-character regime and the restriction on evidence about a complainant’s sexual history.

1. Appeal allowed. The rape conviction was unsafe. The excluded evidence might reasonably have affected the jury’s assessment of the complainant’s credibility and its verdict on consent.

2. The evidence concerning Hayden-Smith did not fall within section 98(a) or (b) of the Criminal Justice Act 2003. Events occurring while an investigation or prosecution is under way do not satisfy section 98(b) merely because of their timing. The misconduct must be more closely connected with the actual investigation or prosecution. Nor did the material disclose conduct sufficiently culpable or blameworthy to amount to reprehensible behaviour. It was therefore not bad-character evidence, but it was irrelevant to credibility and could not properly be introduced or pursued in cross-examination.

3. By contrast, Dildar’s evidence and the supporting evidence of Bean, taken with the CRIS reports, were capable of showing that the complainant had made two false complaints to police, one involving unwanted sexual advances. Applying section 109, the court had to assume that evidence true because a jury could reasonably find it true. The material was bad-character evidence and related to a matter in issue: the complainant’s credibility.

4. For section 100, substantial probative value means more than trivial value, although it need not be conclusive. Having applied the factors in section 100(3), the court held that the alleged previous false complaints had substantial probative value on a matter of substantial importance in the case as a whole. The trial judge had erred by failing to distinguish the irrelevant Hayden-Smith material from the materially different Dildar and Bean evidence. Its introduction was not impermissible satellite litigation merely because it required the jury to consider matters beyond the charged events.

5. Following R v BT, R v MH [2002] 1 WLR 632, previous false allegations of sexual assault concern prior statements, not the complainant’s sexual behaviour for section 41 purposes. A ruling on section 41 was nevertheless required. There was a proper evidential basis because the jury could reasonably find the previous allegations false. Section 100(4) conferred no additional general discretion to exclude evidence which met section 100 and any applicable section 41 requirement.

1. Court of Appeal (Criminal Division) Allowed the appeal and held the rape conviction unsafe: [2009] EWCA Crim 2457.

2. Crown Court at Southwark The jury acquitted the appellant of sexual assault and convicted him of rape by a majority. He received five years’ imprisonment on 10 November 2008.