Fisher, R. v

A failure to comply fully with a witness-speaking protocol does not itself make a conviction unsafe. The appellate court must assess whether the irregularity caused actual unfairness. Where the defence has been permitted to prove and test a complainant’s prior inconsistent statement, the complainant’s possible motive for the inconsistency may be peripheral.

A trial judge may therefore refuse further evidence or a recall of the witness where it would invite speculation, cause disproportionate delay, and add little to the jury’s ability to assess credibility. The question remains whether the rulings, viewed overall, rendered the conviction unsafe.

The applicant was convicted of rape at Nottingham Crown Court on 28 October 2016. The prosecution alleged that he forced sexual intercourse after the complainant had said that she did not want sex. The applicant maintained that the intercourse was consensual.

Before trial, the defence sought permission under section 41 of the Youth Justice and Criminal Evidence Act 1999 to question the complainant about sexual history. After the application was refused, prosecuting counsel spoke to the complainant without a note or a Crown Prosecution Service representative present. At trial, the complainant gave an account concerning an ex-boyfriend which contradicted her earlier ABE interview.

The Recorder permitted cross-examination on that inconsistency but refused to admit evidence of the protocol conversation or to recall the complainant. The application for leave to appeal challenged the safety of the conviction on that basis.

1. Application for leave to appeal refused. The Recorder’s rulings did not render the rape conviction unsafe.

2. The court held that there had been an unfortunate failure to comply fully with the witness-speaking protocol on the prosecutor’s second visit. The protocol was designed to avoid actual or apparent impropriety or undue influence. However, the court accepted the prosecutor’s assurance that nothing improper had occurred. The departures from the protocol had therefore caused no unfairness in the trial.

3. The court questioned why the defence had made an application under section 41 of the Youth Justice and Criminal Evidence Act 1999. An application to cross-examine a complainant about sexual history faces a high hurdle of relevance and admissibility. The suggested issue of a wish to rekindle a relationship with an ex-boyfriend could have been explored without sexual-history evidence.

4. The defence had already obtained what it needed to argue that the complainant was prepared to lie: admission of the edited ABE material and cross-examination on her inconsistent account. Her possible motive for the inconsistency had marginal, if any, relevance. Evidence about the protocol conversation risked inviting speculation about its effect upon her account.

5. Although the Recorder could have permitted evidence of the conversation once the edited interview had been admitted, it was neither appropriate, proportionate nor necessary to recall the complainant at that late stage for further cross-examination on a peripheral matter. The jury had her explanation for the inconsistency and could assess it. On an overall assessment, the alleged error was not even arguably capable of making the conviction unsafe.

• Court of Appeal (Criminal Division): application for leave to appeal against conviction refused.
• Nottingham Crown Court: the applicant was convicted of rape on 28 October 2016.