JG, R v

Leave to introduce a complainant’s previous sexual history under section 41(5) of the Youth Justice and Criminal Evidence Act 1999 requires evidence about sexual behaviour which needs rebuttal or explanation. General evidence about physical maturity or personality does not meet that condition. Where the defence is a complete denial of pre-age-of-consent sexual contact, and the questioning causes no material prejudice, past sexual history remains irrelevant.

In sentencing repeated sexual offending represented by specimen counts, the guideline category may be adjusted to reflect the duration and frequency of the offending. Sentences which are proper individually may nevertheless be reduced where their aggregate is excessive on the totality principle.

The appellant was convicted at the Crown Court at Manchester of rapes, indecent assaults and indecencies against his stepdaughter, RE, committed before she was 16, and of two offences of cruelty to his daughter, SG. He received an overall sentence of 22 years’ imprisonment.

His conviction appeal challenged the trial judge’s questioning of RE’s mother about RE’s development and manner. The defence contended that the questioning conveyed a misleading impression of sexual inexperience and should have permitted evidence of RE’s prior sexual history under the Youth Justice and Criminal Evidence Act 1999.

His sentence appeal challenged the rape and child-cruelty terms and the overall length of the consecutive sentence.

1. Conviction appeal dismissed. The court held that section 41 of the Youth Justice and Criminal Evidence Act 1999 did not permit the defence to adduce RE’s previous sexual history. The defence was a complete denial of any sexual contact before RE was 16, rather than a case of consent. Her sexual history therefore had no bearing on a relevant issue.
2. The judge’s questions of RE’s mother concerned RE’s physical maturity, personality and whether she was flirtatious. They did not adduce evidence of RE’s sexual behaviour, and caused no material prejudice. The jury had already heard evidence that RE attended parties, used drugs and alcohol, and mixed with an unsuitable peer group. The court distinguished R v Hamadi [2007] EWCA Crim 3048, which recognised that fairness may exceptionally require a broader reading of section 41(5) where unexpected, damaging evidence about sexual behaviour emerges from a prosecution witness. Even seriously prejudicial questioning by a judge would not itself justify admitting sexual-history evidence; in an appropriate case it might instead require the jury to be discharged.
3. Sentence appeal allowed in part. The 18-year concurrent terms for the specimen rape counts were not manifestly excessive. The counts represented repeated rapes over several years, and the guideline indication could properly be increased to reflect their number and duration, alongside the victim’s age, grooming, abuse of trust and sustained control.
4. The four-year concurrent terms for the cruelty counts were also proper in isolation. However, the aggregate 22-year sentence was excessive on a totality assessment. The court quashed those terms and substituted concurrent two-year terms, still consecutive to the sentences for the offences against RE. The total sentence was reduced to 20 years’ imprisonment.

• Court of Appeal (Criminal Division): In [2018] EWCA Crim 1318, the court dismissed the appeal against conviction and allowed the appeal against sentence only to reduce the total term from 22 to 20 years’ imprisonment.
• Crown Court at Manchester: On 7 July 2017, the appellant was convicted of sexual offences against RE and child-cruelty offences against SG, and sentenced to an aggregate term of 22 years’ imprisonment.