Crossland, R v

Under Youth Justice and Criminal Evidence Act 1999, evidence about a complainant’s sexual history must concern a genuine relevant issue and cannot be introduced merely to impeach credibility. A speculative assertion that a third party may have supplied distinctive knowledge does not make the complainant’s sexual relationship with that third party relevant.

Where the date alleged is not an element of the offence, the prosecution need not prove the precise date. The date may nevertheless be evidentially important, particularly where the defence relies on an account of the accused’s whereabouts.

The appellant was convicted after trial of two rapes and offences of sexual activity with a child. His defence was that both complainants had fabricated their allegations. A distinctive injury to his penis was relied upon as evidence supporting one complainant’s account.

After the complainant’s evidence, the defence sought leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to ask whether she had had a sexual relationship with AH. The defence suggested that AH might have explained the injury to her. The Recorder refused leave. On appeal, the appellant also challenged the direction that the date alleged for the rape of the second complainant was not a material averment.

1. Appeal dismissed. The convictions were safe.

2. The proposed questioning about whether C had had a sexual relationship with AH was irrelevant to the real issue. That issue was how C could have known of the appellant’s distinctive injury unless, as she alleged, she had had intercourse with him. There was no evidential basis, beyond speculation, for suggesting that AH had acquired and passed on that knowledge. AH’s statement denied both the corresponding injury and any such conversation.

3. The proposed sexual-history evidence could only impeach C’s credibility. It did not become relevant because AH and the appellant were said to have suffered similar injuries. The Recorder was therefore right to refuse the application under section 41 of the Youth Justice and Criminal Evidence Act 1999. The court added that the matter was not properly one for a section 41 application at all.

4. The defence’s failure to give written notice and particularise the proposed questions was a serious and inexcusable breach of Part 6 of the Criminal Procedure Rules. Such non-compliance risks both undermining the statutory protection afforded to complainants and preventing a legitimate defence inquiry. It caused no injustice here because the Recorder’s conclusion was correct.

5. The Recorder’s direction on the date of the rape alleged against K was correct. The prosecution did not have to prove that the rape occurred on the precise date in the indictment. The date remained evidentially significant in light of the appellant’s asserted alibi, and the Recorder gave full directions on the relevant evidence.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2013] EWCA Crim 2313.
• Trial before the Recorder: on 9 October 2012, the appellant was convicted of two rapes and offences of sexual activity with a child.