Evans, R v

Cross-examination intended to show that a complainant made an earlier false allegation of sexual misconduct requires a proper evidential basis. The material need not provide a strong factual foundation, but it must be capable of supporting an inference that the earlier allegation may be false. Speculation or material that is neutral or weak does not justify questioning directed at the complainant’s general credibility under Youth Justice and Criminal Evidence Act 1999, section 41(1).

When deciding whether a conviction is safe, an appellate court must assess the real possibility that the proposed questioning, together with all relevant evidence and subsequent developments, could have led the jury to find the earlier allegation false.

The appellant was convicted at the Crown Court at Gloucester of 20 sexual offences against his daughters, A and R, contrary to the Sexual Offences Act 2003. He received a sentence of 16 years’ imprisonment.

The prosecution case depended almost entirely on the daughters’ evidence. A had also alleged that her brother, J, sexually abused her. The defence sought leave under section 41(1) of the Youth Justice and Criminal Evidence Act 1999 to cross-examine A about those allegations. It contended that they were false and therefore undermined her reliability concerning the appellant. The Recorder refused leave.

On appeal, the issue was whether that ruling rendered the convictions unsafe, particularly in light of J’s subsequent guilty pleas to some sexual offences against A.

1. The appeal was dismissed. The convictions were safe.
2. The court applied the approach in R v T and H [2001] EWCA Crim 1877 and R v AM [2009] EWCA Crim 618. A defendant seeking to question a complainant about an alleged previous false complaint must identify material capable of supporting an inference that it may be false. The material need not amount to a strong factual foundation, but it must be more than speculation. Otherwise, the questioning is in substance an impermissible challenge to general credibility through the complainant’s sexual behaviour under section 41(1) of the Youth Justice and Criminal Evidence Act 1999.
3. The medical evidence was neutral. J’s denials and the differing household relationships did not support an inference that A’s allegations were false. The apparent inconsistency between J’s alleged penetration and the appellant’s alleged inability to penetrate A did not provide a reliable basis for that inference. A’s account lacked detail on matters that could explain the difference, and there was no comparative evidence. Her failure to report abuse by J to R or others was also of limited weight.
4. The Recorder’s refusal of leave was therefore justifiable on the material available at trial. In any event, J’s subsequent guilty pleas showed that A’s allegations against him were at least partly true. If the proposed cross-examination had occurred, the jury would have had to learn of those admissions. There was no real prospect that it would then have concluded that A had fabricated the allegations against J and, on that basis, doubted her allegations against the appellant.

• Court of Appeal (Criminal Division). By [2009] EWCA Crim 2668, dismissed the appeal against conviction and upheld the convictions as safe.
• Crown Court at Gloucester. On 11 March 2009, the appellant was convicted before Mr Recorder Bartlett on 20 sexual-offence counts and sentenced to 16 years’ imprisonment.