Evans v R.

Evidence of a complainant’s sexual behaviour with third parties is not admissible merely because it may portray her as sexually active. However, specific instances may be admitted under Youth Justice and Criminal Evidence Act 1999, section 41 where they are genuinely relevant and the similarities with the alleged event cannot reasonably be explained as coincidence.

Similarity need not be unusual or bizarre. Its cumulative features may satisfy the statutory test. In the rare case where exclusion of highly probative evidence would endanger trial fairness, it cannot be excluded. Fresh evidence meeting the statutory criteria may therefore render a conviction unsafe.

The appellant was convicted in 2012 of raping X, who had no memory of events in the hotel room. His case was that X had consented, or that he reasonably believed that she had consented. A previous application for leave to appeal was refused by this court: [2012] EWCA Crim 2559.

Following a reference by the Criminal Cases Review Commission, the appellant sought to adduce evidence from two men who described specific sexual encounters with X shortly before and after the alleged rape. They said that, after drinking, X had initiated and directed sexual activity in ways resembling the appellant’s account. The central issue was whether that evidence was admissible under section 41 and, if admitted, might render the conviction unsafe.

1. Appeal allowed. The court admitted the fresh evidence, quashed the conviction and ordered a retrial. The evidence was capable of belief. There was a reasonable explanation for its absence at trial, including the former focus of the defence lawyers and their failure to obtain the relevant detail.

2. Under Criminal Appeal Act 1968, section 23, the court had to determine the fresh-evidence application in the usual way. A reference by the CCRC was to be dealt with as an appeal. The critical question was whether the evidence would have been admissible at trial and could afford a ground for allowing the appeal.

3. Section 41 of the Youth Justice and Criminal Evidence Act 1999 did not make the defence bound by a complainant’s answers if leave to adduce evidence was granted. Section 41(4) prevents evidence whose sole or main purpose is to impugn credibility. It does not exclude evidence that is relevant to a substantive issue merely because it may also affect credibility.

4. The court applied the similarity requirement in section 41(3)(c)(i). The behaviour did not need to be rare or bizarre. The correct question was whether the combined similarities could reasonably be explained as coincidence. The proposed evidence described specific occasions, close in time, on which X was said to have drunk alcohol, initiated and directed intercourse, adopted similar positions and used substantially similar words. In the unusual circumstances of this case, it was relevant and arguably sufficiently similar to be admissible. It might also be relevant to reasonable belief under section 41(3)(a).

5. The protection against intrusive sexual-history evidence remained important, particularly where third parties were involved. Nevertheless, following R v A (No. 2) [2002] 1 A.C.45, relevant and admissible evidence could not be excluded where doing so would endanger a fair trial. The evidence could reasonably have affected the jury’s verdict and rendered the conviction unsafe.

6. Although the appellant had served his sentence, the allegation was serious and the interests of justice required resolution by a jury. Retrial ordered.

• Court of Appeal (Criminal Division): On a CCRC reference, the court allowed the appeal, quashed the conviction and ordered a retrial.
• Court of Appeal (Criminal Division): A renewed application for leave to appeal conviction was refused on 6 November 2012: [2012] EWCA Crim 2559.
• Jury trial: The appellant was convicted of rape on 20 April 2012 and sentenced to five years’ imprisonment.