AM, R. v

A previous allegation of sexual assault said to be false concerns the complainant’s prior statement, rather than sexual behaviour, where there is a proper evidential basis for asserting falsity. In that event, the restrictions in section 41 of the Youth and Criminal Evidence Act 1999 do not apply.

The evidential basis need not be a strong factual foundation. It is sufficient that the available material, potentially assisted by the complainant’s answers in cross-examination, could found a conclusion that the earlier complaint was false. The assessment is fact-sensitive and evaluative, not discretionary. Wrongly excluding a potentially valuable line of cross-examination may render a conviction unsafe.

The appellant was convicted at Reading Crown Court, by a majority of ten to two, of sexual assault on his neighbour. The prosecution relied principally on the complainant’s account and her complaints shortly after the alleged assault. The appellant denied entering her flat on the day in question and alleged fabrication.

Before trial, the defence sought to cross-examine the complainant and adduce evidence about her 2001 allegation of rape. It contended that the earlier allegation was false and was relevant to rebutting her account. The trial judge refused leave under section 41 of the Youth and Criminal Evidence Act 1999, holding that there was no proper evidential basis for asserting that the earlier allegation was untrue.

The appeal concerned whether the proposed questioning was about sexual behaviour within section 41 and, if not, whether the conviction could stand.

1. Appeal allowed. The conviction was unsafe because the judge wrongly prevented the appellant from pursuing a potentially valuable line of cross-examination. The court declined to order a retrial because of the custody already served and the short remaining period before the appellant’s anticipated release.
2. Section 41 of the Youth and Criminal Evidence Act 1999 applies to evidence or questions about a complainant’s sexual behaviour. A distinction must be drawn between sexual behaviour itself and a previous statement alleging such behaviour. A previous allegation of sexual assault said to be false is ordinarily a prior statement, not sexual behaviour, provided there is a proper evidential basis for asserting both that the allegation was made and that it was untrue.
3. A proper evidential basis is less than a strong factual foundation proving falsity. The question is whether the material before the judge, including what might emerge from proper cross-examination, is capable of leading a jury to conclude that the earlier complaint was false. The inquiry is fact-sensitive and evaluative; it is not an exercise of discretion. Comparisons with the particular facts of earlier cases are of limited assistance.
4. On the available material, a jury could have concluded that the 2001 allegation was false. Relevant features included the four-month delay in reporting it, matters which had caused investigating officers to be sceptical, the complainant’s refusal to permit an effective investigation, and the possibility that her wish to be rehoused was her true reason for reporting. The judge assessed those matters without knowing the answers which cross-examination might elicit.
5. The judge should therefore have held that the proposed questioning concerned a previous complaint, so that section 41 did not apply. It was unnecessary to determine the separate issue under section 41(4). The exclusion of the questioning deprived the appellant of a potentially valuable means of challenging the prosecution case, and the conviction could not safely stand.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and declined to order a retrial: [2009] EWCA Crim 618.
• Reading Crown Court: Convicted the appellant of sexual assault by a majority of ten to two on 29 August 2008.