H, R. v (Rev 1)

A trial judge may permit cross-examination on prior inconsistent statements that are pertinent to the issues before the jury while refusing a wider inquiry into separate, unpursued allegations. Cross-examination which would explore collateral matters, provide no substantial assistance to the jury, or amount to a fishing expedition is properly excluded. Where a defendant relies on favourable statements made during an earlier investigation, it may be proper for the jury to receive sufficient context about that investigation, including that it ended without arrest, interview or prosecution.

The appellant was convicted at Ipswich Crown Court of six counts of rape of his stepdaughter, Z. Five counts were specimen counts concerning alleged rapes when Z was aged between 12 and 16. The sixth concerned an alleged rape when she was 20.

In 2001, during an investigation arising from allegations made by the appellant’s natural daughter, Z denied that the appellant had behaved improperly towards her. At trial, the judge allowed defence counsel to cross-examine Z about those denials, but refused a broader inquiry into the daughter’s underlying allegations and a police report recording matters said by Z about them.

The appellant contended that the restriction on cross-examination rendered the convictions unsafe. The central issue was whether the judge had wrongly prevented counsel from pursuing the proposed lines of questioning.

1. Appeal dismissed. The trial judge’s ruling limiting cross-examination was sound and correct in law.
2. The judge properly allowed cross-examination about Z’s prior inconsistent statements in 2001. Those statements were pertinent to her evidence at trial because she had then denied sexual misconduct by the appellant.
3. The proposed examination of passage A in the police report would have concerned allegations made by the appellant’s natural daughter, rather than the rape allegations before the jury. If followed by an inquiry into the truth of those allegations, it would have produced impermissible satellite litigation. Without such an inquiry, it was merely a fishing expedition and would not have given the jury substantial assistance.
4. For the same reason, cross-examination on passage B was too remote from the issues for decision. The fact that it might have enabled Z to assert that one allegation against the appellant was untrue did not justify allowing the trial to meander into unrelated matters.
5. The defence could, and did, address the jury’s understandable concern about the 2001 investigation through an admission. It identified the investigation and recorded that it concluded without the appellant being arrested, interviewed or prosecuted. The appellant could not obtain the benefit of Z’s earlier denials while withholding all context for their making.
6. The separate evidential difficulty arising from the appellant’s later relationship with a much younger woman resulted from the defence case on Z’s alleged motive. It had no bearing on the correctness of the cross-examination ruling. The surviving ground disclosed no basis for finding the convictions unsafe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2011] EWCA Crim 303.
• Ipswich Crown Court: before HHJ Devaux and a jury, convicted the appellant in May 2010 on six counts of rape by a 10–2 majority.