RP v R.

A question about assistance given to a complainant in connection with a termination of pregnancy is not, without more, a question about her sexual behaviour. It is therefore outside the statutory prohibition in section 41 of the Youth Justice and Criminal Evidence Act 1999, even though pregnancy necessarily follows earlier sexual behaviour.

Relevance remains a precondition of admissibility. However, an erroneous exclusion of relevant questioning will not render a conviction unsafe where the excluded material would have added little to evidence already before the jury. Steps taken to correct a misleading impression given to the jury, and robust exchanges occurring in its absence, do not by themselves make a trial unfair.

The appellant was convicted at Cardiff Crown Court of six counts of indecent assault contrary to section 14 of the Sexual Offences Act 1956, involving his stepdaughter during her childhood. He received concurrent sentences of six years and 353 days’ imprisonment.

He appealed against conviction. The principal complaint was that the trial judge had refused to permit cross-examination about the appellant’s emotional and financial support for the complainant when she obtained a termination of pregnancy after the alleged abuse. The other grounds concerned the judge’s handling of late instructions about an alleged later sexual encounter with the complainant’s mother, the summing-up, and alleged judicial hostility. The central issue was whether the errors or conduct relied on made the convictions unsafe.

1. Appeal dismissed. The judge erred in ruling that the proposed questions about the complainant’s termination of pregnancy were barred by section 41 of the Youth Justice and Criminal Evidence Act 1999. The questions were relevant because they could bear on the suggested inconsistency between the complainant’s allegation of abuse and her later reliance on the appellant for personal support.

2. Section 41 applies only to questions or evidence about sexual behaviour. A question concerning assistance with a termination is not transformed into a question about sexual behaviour merely because pregnancy implies antecedent sexual conduct. The court recognised that questions about a termination may in another case be used as a means of exploring sexual history. That was not the character of the proposed questions here. No application for leave under section 41 was therefore required.

3. The error did not make the convictions unsafe. The jury had already heard substantial evidence of continued contact and an ongoing relationship between the appellant and the complainant after the alleged abuse. The additional evidence of a family discussion, a journey to the clinic and payment for the procedure would not have materially strengthened the defence submission. The court took the same practical view of the likely effect of such evidence as in K & anor. [2008] EWCA Crim 434. The appellant’s responses to later text-message accusations, which did not include outright denials, also supported the safety of the convictions.

4. The judge’s observation before the jury that the alleged later sexual relationship with the complainant’s mother had not been put to her was accurate. Defence counsel’s subsequent correction of the misleading impression that this was simply counsel’s omission did not impair trial fairness. It was unnecessary to decide whether the timing of instructions was privileged.

5. The remaining complaints about the summing-up and alleged hostility did not cumulatively establish unfairness. The impugned exchanges occurred outside the jury’s presence, and the case was far removed from Cordingley [2007] EWCA Crim 2174. The renewed application for leave to appeal on the third ground was refused.

• Court of Appeal (Criminal Division): appeal against conviction dismissed in [2013] EWCA Crim 2331.
• Crown Court at Cardiff: on 12 September 2012 the appellant was convicted of six counts of indecent assault; on 5 October 2012 he received concurrent sentences of six years and 353 days’ imprisonment.