Chapman, R. v

Under Youth Justice and Criminal Evidence Act 1999, section 41, proposed cross-examination about consensual sexual activity after an alleged rape may properly be refused where the activity is remote in time, irrelevant to the issue for the jury, and is advanced only to attack the complainant’s credibility. The court should guard against reasoning based on a stereotypical and potentially false assumption that a victim of rape would not later engage in consensual sexual activity with the alleged perpetrator. Limited evidence of subsequent friendly contact may nevertheless be permitted where needed to give a balanced account of the relationship.

The applicant was convicted on 12 June 2015 of two counts of rape and one count of dangerous driving. He received concurrent sentences, including nine years’ imprisonment for the rape counts. His application for permission to appeal conviction and sentence was refused by a single judge.

He renewed his application for permission to appeal conviction on the two rape counts. The sole issue was whether the trial judge had wrongly refused, under section 41 of the Youth Justice and Criminal Evidence Act 1999, to permit cross-examination about consensual sexual activity said to have occurred approximately seven months after the alleged rapes.

1. The court refused the renewed application for permission to appeal conviction. The trial judge’s ruling under section 41 of the Youth Justice and Criminal Evidence Act 1999 was entirely correct.

2. Although the judge had power in principle to allow questioning about the later sexual activity, he was entitled to refuse it. The activity occurred approximately seven months after the alleged rapes and was not sufficiently proximate in time. It was also irrelevant to the issue the jury had to decide, namely whether the sexual activity charged had been consensual.

3. The judge was entitled to take account of evidence that the complainant was confused about the relationship at the time of the later activity. In a complex relationship, subsequent consensual intercourse does not logically establish that an earlier alleged rape was consensual.

4. The proposed questioning would have invited reliance on a stereotypical and potentially false view of how a victim of rape should behave towards an alleged perpetrator. Its real purpose was to impugn the complainant’s credibility by suggesting that later consensual activity showed that she had falsely alleged rape. That purpose did not justify admission of the evidence.

5. The ruling remained fair because the defence was permitted to adduce evidence that the complainant and applicant had later met and had sometimes been friendly. The restriction properly prevented that evidence from extending to later sexual activity while preserving balance in relation to the text-message evidence.

• Court of Appeal (Criminal Division): renewed application for permission to appeal conviction refused: [2016] EWCA Crim 1631.

• Single judge: application for permission to appeal conviction and sentence refused.

• Trial: the applicant was convicted by a jury of two counts of rape and one count of dangerous driving.