R v VA

Questions about a complainant’s earlier opportunity to report an alleged sexual offence do not concern sexual behaviour merely because the earlier contact involved allegations of sexual offending. Where a complainant’s separate sexual abuse is relied on as an alternative explanation for detailed and distressed evidence, Youth Justice and Criminal Evidence Act 1999 section 41(4) does not bar the questioning simply because it may cast doubt on the allegation.

Bad-character evidence of indecent images is unfair where the material is highly prejudicial and there is no satisfactory evidential basis linking it to the accused. Cumulative errors restricting material cross-examination and admitting such evidence can render convictions unsafe.

The appellant was convicted at Inner London Crown Court of five counts of indecent assault and two counts of indecency with a child. The allegations concerned sexual abuse of the complainant when she was a child and the appellant was briefly the partner of her mother.

On his appeal against conviction, the appellant challenged rulings which limited cross-examination about the complainant’s 1996 and 2012 allegations concerning other alleged abusers. He also challenged the admission as bad-character evidence of indecent images found on computers to which he had access, although related image counts had been dismissed or not pursued.

The central issues were whether the proposed questioning was admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999, whether the image evidence was fairly admitted, and whether the resulting convictions were safe.

1. Appeal allowed. The court held that the convictions were unsafe. It quashed all convictions and ordered a retrial.
2. The judge erred in restricting questioning about the 1996 complaints. Applying R v T and R v H [2002] 1 Cr App R 22, questions about a prior opportunity to report the appellant’s alleged abuse did not concern the complainant’s sexual behaviour. The defence did not need to establish whether the earlier complaints were true. Removing the sexual context deprived the point of its force and could render the verdict unsafe.
3. The judge also erred in restricting questioning about the 2012 complaint. That complaint did concern sexual behaviour because the defence relied on it as true. Nevertheless, the purpose of the proposed questions was not to attack credibility merely because of sexual history. It was to advance a specific alternative explanation for the complainant’s detailed and distressed account, and to support the possibility that she had confused the identity of the abuser. That purpose fell outside section 41(4) of the Youth Justice and Criminal Evidence Act 1999. The court added that the same conclusion followed on the wider approach discussed in R v Martin [2004] 2 Cr App R 22.
4. The admission of indecent-image evidence was unfair. It was highly prejudicial, yet the evidence did not satisfactorily link the appellant to the images. The dismissal and withdrawal of the related image counts reflected those evidential difficulties. The evidence could have been presented differently if necessary to explain the alleged conversation with the appellant.
5. Each error mattered. Taken together, the three successful grounds left the court in no doubt that the convictions were unsafe. A fresh indictment was directed within two months, with venue to be determined by the relevant Presiding Judge.

• Court of Appeal (Criminal Division): Allowed the appeal in [2016] EWCA Crim 1434, quashed the convictions and ordered a retrial.
• Inner London Crown Court: On 10 March 2015, convicted the appellant of five counts of indecent assault and two counts of indecency with a child. On 8 May 2015, imposed a total sentence of eight years’ imprisonment.