Hilly, R. v

Questions about a complainant’s previous false sexual-assault complaints are not barred by Youth Justice and Criminal Evidence Act 1999 section 41. However, the defence must first establish a proper evidential basis that the earlier complaint was made and was untrue. The threshold is below a strong factual foundation, but there must be material capable of properly supporting a conclusion of falsity.

A complaint’s non-pursuit does not, without closer examination, show that it was false. Nor can several complaints that individually provide no basis for an inference of falsity cumulatively become evidence of falsity. The assessment is fact-sensitive and is one of judicial evaluation.

The appellant was convicted at Swansea Crown Court of rape and received an extended sentence. The case turned on consent and the complainant’s credibility.

Before trial, the defence sought permission to cross-examine the complainant about earlier allegations of sexual abuse by other men. The trial judge refused because there was no evidence that the allegations were false. During cross-examination, the complainant voluntarily referred to having been abused by three men. The judge maintained the ruling after a renewed application.

On appeal, the appellant contended that the historic allegations, their non-pursuit and their number supplied a proper evidential basis to allege falsity and therefore justified cross-examination.

1. Appeal dismissed. The trial judge was right to refuse cross-examination about the complainant’s earlier allegations of sexual abuse.

2. Section 41 of the Youth Justice and Criminal Evidence Act 1999 did not itself prohibit questions about prior false complaints of sexual assault. Such complaints are not sexual behaviour within section 42(1)(c). Permission nevertheless requires a proper evidential basis that the earlier complaint was made and was untrue.

3. Following Murray [2009] EWCA Crim 618, the required foundation is less than a strong factual case that a complaint was false. There must, however, be material capable of properly leading to that conclusion. The inquiry is fact-sensitive and requires judicial evaluation of all relevant material.

4. The non-pursuit of a sexual allegation does not necessarily demonstrate falsity. Courts should take an informed view of the position of those making such allegations and examine the particular circumstances. Here, the complainant’s vague memories of historic abuse, the absence of a basis to challenge one allegation, the absence of a police record for another, and her stated reasons for not pursuing a further allegation did not support an inference that any complaint was false.

5. As none of the individual allegations provided such a basis, their accumulation could not create evidence of falsity. The complainant’s voluntary reference during cross-examination did not make the earlier allegations part of the Crown’s case or remove the evidential requirement.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2014] EWCA Crim 1614.
• Crown Court at Swansea: on 1 November 2013, convicted the appellant of rape and imposed an extended sentence.