Butler v R.

A prior allegation of sexual offending may be used to challenge a complainant’s credibility only where there is a proper evidential basis that it was made and was false. A retraction, a suspect’s denial, or a decision not to prosecute does not itself establish falsity.

On an appeal founded on newly disclosed material, the question remains whether the conviction is safe. The court must assess the material in its context and its probable effect on the conduct of the trial. Historical professional opinions about a complainant’s truthfulness are not admissible evidence of whether the complainant made the allegation in issue truthfully.

The appellant had been convicted of rape at Sheffield Crown Court in 1998. His renewed application for leave to appeal was refused in 1999.

The Criminal Cases Review Commission later discovered police and social-services material concerning AB’s earlier and later sexual allegations. It referred the conviction on the basis that the material might cast doubt on AB’s credibility and on the safety of the conviction.

The appellant contended that fuller disclosure would have caused the defence to cross-examine AB about an earlier allegation which was changed from rape to unlawful sexual intercourse. The court also considered concerns about the direction on lies and the separate verdicts on rape and false imprisonment.

1. Appeal dismissed. The newly disclosed material did not render the rape conviction unsafe. The court applied the safety test in Pendleton [2001] UKHL 66 and the formulation in Dial [2005] UKPC 4. It assessed the likely effect of the material upon the trial strategy and the evidence as a whole.

2. Cross-examination about an earlier sexual complaint to challenge credibility required a proper evidential basis that the complaint had been made and was false. The court followed R v T and R v H [2002] 1 WLR 632 and approved the reasoning in R v R.D. [2009] EWCA Crim 2137. A retraction, a denial by the person accused, or a decision not to prosecute did not supply that basis. The trial could not properly become an unbounded collateral inquiry into an earlier allegation.

3. The records did not establish deliberate fabrication by AB. Much of the adverse material consisted of historical opinions by police officers, social workers or a doctor. Such opinions were not admissible to prove that AB was untruthful in this case. The earlier complaints had contextual or evidential support, and the short-lived change in the allegation against a lodger did not support an allegation of deliberate falsity.

4. Even if limited cross-examination had been available, it would not reasonably have changed the defence strategy. An attack on AB’s character would have exposed the appellant’s serious previous sexual convictions. The prosecution case also had substantial support from the immediate complaint, forensic evidence, the pizza delivery man, the appellant’s lies, and the false alibi.

5. The judge’s Lucas direction adequately warned that lies could have innocent explanations and could not alone prove guilt. The judge also directed separate verdicts on the two counts. The acquittal for false imprisonment did not undermine the rape conviction.

• Court of Appeal (Criminal Division) — following a reference by the Criminal Cases Review Commission, dismissed the appeal and upheld the conviction: [2015] EWCA Crim 854.
• Court of Appeal (Criminal Division) — refused the appellant’s renewed application for leave to appeal against conviction on 20 April 1999; no citation was stated.
• Crown Court at Sheffield — convicted the appellant of rape on 21 May 1998 and acquitted him of false imprisonment.