Guthrie, R. v

Leave to cross-examine a complainant about previous sexual conduct under section 41(3)(c) requires more than evidence of past consensual sex. The conduct must show relevant similarity, be truly probative of continuity, and have a sufficient chronological nexus with the allegation. Similarities which amount only to background or coincidence do not meet the statutory threshold.

A jury direction on bad character must be read as a whole. A direction about prior violence and possession of weapons was not unsafe where it directed the jury to consider a general propensity for violence, rather than a propensity to use a bladed weapon. A judge may properly warn that untested hearsay has little probative value while leaving its weight to the jury.

The appellant was convicted at Croydon Crown Court of rape and sentenced to nine years’ imprisonment with ancillary orders. The prosecution alleged that, after attending the complainant’s home, he threatened and assaulted her before raping her. His case was that sexual intercourse had occurred consensually earlier that morning and that the alleged assault did not occur.

On appeal against conviction, he challenged three matters: refusal of leave to cross-examine the complainant about alleged previous consensual encounters; directions concerning his previous convictions; and directions about a hearsay account given by his brother in police interview. The central issues were whether those rulings and directions rendered the conviction unsafe.

1. The appeal was dismissed. The conviction was safe.

2. The judge was entitled to refuse leave under section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999. The authorities showed that striking similarity was unnecessary, but the proposed evidence had to demonstrate relevant similarity and be truly probative of continuity. Past consensual conduct could not be used simply to suggest that the complainant was likely to have consented on the occasion charged. Applying R v A (No 2) [2001] UKHL 25, R v MM [2011] EWCA Crim 1291, R v Harris [2009] EWCA Crim 434 and R v Hamadi [2007] EWCA Crim 3048, the court held that the asserted similarities were merely background or coincidence. The alleged encounters, said to have occurred about a year before and several weeks after the alleged rape, also lacked a sufficient chronological nexus. The proposed cross-examination was therefore not truly probative.

3. The admission of the previous convictions under section 101(1)(d) and (g) of the Criminal Justice Act 2003 was not challenged. The judge’s summing-up, read fairly and as a whole, concerned a possible propensity to behave violently or intimidate. It did not direct the jury to infer a propensity to possess or use a bladed weapon. The directions properly stressed that bad-character evidence was only a small and indirect part of the evidence. Nothing in the approach was inconsistent with R v M [2006] EWCA Crim 3408 or rendered the conviction unsafe.

4. The judge was also entitled to describe the brother’s police interview as hearsay of very little probative value. It was unsworn and untested, and the brother had not given evidence. The judge nevertheless made clear that the weight to be attached to it was for the jury, who had to decide the case on the evidence they had heard.

• Court of Appeal (Criminal Division): The appellant’s appeal against conviction was dismissed.

• Crown Court at Croydon: On 11 December 2015, the appellant was convicted by a judge and jury of rape and sentenced to nine years’ imprisonment with ancillary orders.