R. v E

Evidence said to show that a child complainant made an earlier false sexual allegation is not admissible as bad-character evidence unless it has substantial probative value on an important matter in issue. Evidence of a child’s use of sexualised language is likewise inadmissible where it does not rationally bear on the accused’s asserted belief about age or provide important explanatory context.

Evidence tendered only to prove that a conversation occurred in the accused’s presence is not hearsay. Judicial impatience or unfairness towards advocates will render a conviction unsafe only where it has adversely affected the accused’s fair trial.

The applicant pleaded guilty to drug offences and was later convicted at the Crown Court at Chelmsford of sexual activity with a child and two offences of causing or inciting a child to engage in sexual activity.

He sought leave to appeal against the sexual convictions. He challenged rulings excluding proposed evidence about the complainant, admitting evidence of a conversation about her age, and rejecting a submission of no case to answer. He also alleged that the trial judge’s conduct and summing-up deprived him of a fair trial.

The central issue was whether any of those rulings or the judge’s interventions made the convictions unsafe.

1. The referred and renewed applications for leave to appeal against conviction were refused. The court found no error in the substantive evidential rulings and no basis to regard the convictions as unsafe.
2. The proposed evidence that the complainant had made an earlier false allegation did not satisfy the bad-character admissibility requirements. It was not evidence of reprehensible behaviour within section 112(1) of the Criminal Justice Act 2003, had no substantial probative value under section 100(1)(b), and was not required for a fair trial. The court accepted that this material did not fall within section 41 of the Youth Justice and Criminal Evidence Act 1999.
3. The proposed school-record evidence of sexualised language was also properly excluded. Such language did not demonstrate any particular sexual maturity, did not assist the issue of the applicant’s belief as to age, and did not provide important explanatory evidence. It was immaterial that the complainant had used more restrained language in a formal interview.
4. LR’s evidence was admissible because the Crown relied on it only to establish that a conversation about the complainant’s age occurred in the applicant’s presence. It was not tendered to prove the truth of what was said, so no hearsay issue arose. There was also no reason to interfere with the judge’s exercise of discretion under section 78 of the Police and Criminal Evidence Act.
5. The inconsistencies in the Crown evidence and the way its case developed did not justify withdrawing the case from the jury. There was ample evidence on which it could decide the applicant’s knowledge or belief about the complainant’s age and convict.
6. Applying R v Hulsi [1974] 58 Cr App R 378, unfairness to counsel matters only if it has bad effects upon the accused. Although the judge’s manner and some comments caused concern, his interventions were directed to relevance and focus, did not compromise the jury’s understanding, and did not undermine the fairness of the trial. The court nevertheless stated that none of its members would have behaved or spoken as the judge did.

• Court of Appeal (Criminal Division): Refused the referred and renewed applications for leave to appeal against the convictions for the sexual offences.
• Crown Court at Chelmsford: Convicted the applicant on 4 August 2010 of sexual activity with a child and two counts of causing or inciting a child to engage in sexual activity.