Campbell, R v

Before cross-examining a complainant about an earlier allegation of sexual misconduct on the basis that it was false, the defence must show a proper evidential basis for falsity. The material must permit that conclusion; the trial process cannot be used to investigate the allegation in the hope that answers might supply the missing basis.

Absent that basis, the proposed questions concern sexual behaviour and are governed by the strict conditions in Youth Justice and Criminal Evidence Act 1999, section 41. If the basis is established, admissibility instead falls to be assessed as non-defendant bad-character evidence under Criminal Justice Act 2003, section 100(1)(b).

The applicant was convicted at Canterbury Crown Court of two offences of rape and assault occasioning actual bodily harm. The prosecution alleged a sustained sexual and physical attack on LD. The applicant maintained that any sexual activity was consensual and that LD had fabricated the allegations.

Before trial, the judge refused the defence leave to cross-examine LD about two earlier allegations of sexual misconduct against another man. The defence contended that the earlier allegations were false, alternatively that they were admissible as LD’s bad character. The applicant renewed his application for leave to appeal against conviction after a single judge had refused leave.

The central issue was whether the trial judge had wrongly excluded the proposed questioning under Youth Justice and Criminal Evidence Act 1999, section 41, or Criminal Justice Act 2003, section 100(1)(b).

1. The renewed application for leave to appeal against conviction was refused. The convictions were not unsafe.

2. The court upheld the judge’s approach to Youth Justice and Criminal Evidence Act 1999, section 41. Where the defence asserts that an earlier allegation was false, it must first establish a proper evidential basis for that assertion. The threshold is lower than a strong factual foundation, but there must be material from which falsity could properly be concluded. The judge must not speculate that answers obtained in cross-examination might later establish falsity.

3. Where no such basis exists, questions concerning the earlier allegation are questions about the complainant’s sexual behaviour and may be asked only within section 41. If a proper basis of falsity is established, the allegation is not caught by section 41; its possible admission as non-defendant bad-character evidence instead depends on Criminal Justice Act 2003, section 100(1)(b).

4. The judge was entitled to find that the one-day delay in reporting, the earlier decision not to prosecute, drug dependence, and matters affecting credibility did not provide a proper evidential basis for falsity. The suggested similarities between the earlier allegations and the present allegations were confined to an initial touching while asleep. They were not sufficiently striking to give the material substantial probative value or to make exclusion unsafe.

5. The court followed the approach in AM [2009] EWCA Crim. 618. Its facts, however, provided a materially stronger basis for alleging falsity than the present case. The court also endorsed the caution stated in R v D [2009] EWCA Crim. 2137 against using the trial as an investigation into the truth of an earlier allegation.

• Court of Appeal (Criminal Division) — in [2016] EWCA Crim 597, refused the renewed application for leave to appeal against conviction following the single judge’s refusal of leave.
• Crown Court at Canterbury — on 13 February 2015, convicted the applicant of two rapes contrary to Sexual Offences Act 2003, section 1, and assault occasioning actual bodily harm contrary to Offences Against the Person Act 1861, section 47.