T v R

Where evidence or cross-examination concerning a complainant’s sexual behaviour raises a relevant issue other than consent, including an alleged motive to fabricate, the statutory gateway in section 41 requires its admission. Late disclosure and the complainant’s denial of the matter may bear on weight and credibility, but do not justify exclusion.

Selected social-media messages may properly be excluded if their one-sided presentation, without the surrounding exchange, would mislead the jury. On an appeal alleging wrongful exclusion of evidence, the Court of Appeal may obtain further evidence under section 23, but an identified legal error does not warrant allowing the appeal unless the evidence could affect the safety of the conviction.

The appellant, aged 15 at conviction, appealed against his conviction at Bristol Crown Court for raping a 13-year-old schoolmate. His defence was that no sexual intercourse had occurred.

After the complainant had given video-recorded evidence, the defence sought to rely on a photograph allegedly sent by her to the appellant and on selected Facebook messages. It contended that the material supported a case that she was interested in him and had a motive to make a false allegation after he rejected her. The trial judge excluded both categories of evidence, principally because they had been raised without advance notice.

The appeal concerned the proper operation of section 41 of the Youth Justice and Criminal Evidence Act 1999, the fairness of the selected Facebook material, and whether the exclusion rendered the conviction unsafe.

1. The appeal was adjourned for further evidence. The court held that the trial judge had erred in law by excluding the photograph merely because it had been disclosed late and the complainant denied sending it. The appellant’s serious breach of the Criminal Procedure Rules created understandable difficulty for the judge and prosecution, but did not alter the statutory test.
2. Given its nature, questioning about the photograph concerned the complainant’s sexual behaviour within section 41(1)(b) of the Youth Justice and Criminal Evidence Act 1999. As the appellant denied intercourse, consent was not in issue under section 41(3)(a). The proposed evidence was nevertheless relevant to a non-consent issue: the alleged motive for a false complaint arising from the complainant’s interest in the appellant and his lack of interest in her.
3. Once that relevance was established, the judge had no discretion to exclude the questioning or the appellant’s evidence about the photograph: R v F [2005] Cr App R 13. The lateness of disclosure, absence of an accompanying e-mail, and the complainant’s denial were matters for evidential weight, testing and jury assessment. They could not prevent the jury from resolving the conflict of evidence.
4. The judge could, however, refuse the Facebook messages in the form tendered. They showed only messages attributed to the complainant and no responses or surrounding thread. Without context, their admission would have been misleading and unfair. Lack of advance notice alone was not a sufficient basis for exclusion.
5. Under section 23 of the Criminal Appeal Act 1968, the court could receive further evidence necessary to determine the appeal. Although the refusal at trial reasonably explained why evidence of provenance had not then been adduced, the court could not assess safety without evidence as to how the photograph was obtained, why it emerged late, and the context of the Facebook material. It therefore adjourned the appeal, directed the appellant to serve sworn evidence within 21 days, allowed the prosecution 21 days to respond, and ordered relisting.

• Court of Appeal (Criminal Division) — held that the exclusion of the photograph was legally erroneous, upheld exclusion of the Facebook messages in their incomplete form, and adjourned the appeal for further evidence under section 23 of the Criminal Appeal Act 1968.
• Bristol Crown Court — on 2 March 2012, convicted the appellant of rape.