Smith, R. v

Leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 may properly be refused where the proposed questioning concerns consent but does not meet a statutory gateway, or would invite weak and speculative collateral issues. The decisive question under section 41(2)(b) is whether refusing leave might render the jury’s conclusion unsafe.

Remote inconsistencies in a complainant’s earlier allegation may lack the substantial probative value required for evidence of a non-defendant’s bad character. Evidence of a defendant’s similar conduct may be admitted where it bears substantially on an important issue, provided its probative value outweighs unfair prejudice. Similar allegations may mutually support each other only if the jury is sure that they were independently made.

R v Smith concerned an appeal against convictions for two rapes at Nottingham Crown Court. The appellant was sentenced to a total of nine years’ imprisonment.

Each complainant alleged that, after consensual contact or drinking with the appellant, she awoke to find him having intercourse with her without consent. The appellant denied rape. A third woman, KJ, gave evidence of similar alleged conduct, although the rape count based on her evidence was withdrawn after a successful submission of no case to answer.

The appeal challenged two refusals of leave to question the complainants about earlier sexual matters under section 41 of the Youth Justice and Criminal Evidence Act 1999, and the refusal to discharge the jury after KJ’s evidence was admitted as bad-character evidence under the Criminal Justice Act 2003.

1. Appeal dismissed. The convictions were safe. The Recorder made no error in refusing either section 41 application or in allowing KJ’s evidence to be used as bad-character evidence.

2. In relation to KS, the proposed evidence that she had told the appellant of an earlier rape related directly to consent and did not fall within section 41(3)(b) or (c) of the Youth Justice and Criminal Evidence Act 1999. The other suggested use was a weak point which would invite speculation and collateral inquiries. Refusal of leave could not render the jury’s conclusion unsafe within section 41(2)(b). The statutory restrictions inevitably limit both cross-examination and the defendant’s ability to adduce evidence of sexual behaviour.

3. In relation to DL, the alleged inconsistency in an allegation made when she was 13 was, at most, an attempt to impugn credibility contrary to section 41(4). The Recorder had correctly carried out the statutory balancing exercise. Even if the material was evidence of DL’s bad character under section 100 of the Criminal Justice Act 2003, it had no substantial probative value and no reasonable jury could give it weight eight years later.

4. KJ’s evidence bore on an important issue between the prosecution and defence: the appellant’s alleged propensity to have intercourse with women believed to be asleep, and the likelihood of independently made similar allegations. Its substantial probative value outweighed unfair prejudice for the purposes of section 101(1)(d) and (3) of the Criminal Justice Act 2003. The successful no-case submission on the count concerning KJ resulted from the inability to prove non-consent, not from any finding that her evidence was incapable of belief.

5. The Recorder’s cross-admissibility direction was fair. If KJ knew or might have known of the other allegations when making her complaint, her allegation could not support them. If the jury was sure that the allegations were independent, it could consider the improbability of three independent false allegations of similar conduct and treat the evidence as mutually supportive.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2017] EWCA Crim 941.

• Crown Court at Nottingham: convicted the appellant of two counts of rape on 24 October 2016 and sentenced him to a total of nine years’ imprisonment on 4 November 2016.