Conn, R v

Before alleged earlier complaints of sexual assault may be deployed as false allegations rather than as evidence of a complainant’s sexual behaviour, the defence must establish a proper evidential basis that the complaints were made and were false. This requires material capable of supporting a conclusion of falsity, but not a strong factual foundation. The trial judge’s assessment is fact-sensitive and appellate courts will normally defer to it. A direction on honest belief in consent is unnecessary where the defence denies intercourse and, if the complainant’s account is accepted, no such belief could realistically arise. Severe psychological harm for sentencing may be found without expert evidence.

The applicant was convicted at Kingston upon Thames Crown Court of one indecent assault and two historic rapes involving two complainants. He received consecutive sentences totalling 15 years’ imprisonment.

He renewed applications for leave to appeal against conviction and sentence. The principal conviction issue was whether he should have been permitted to cross-examine one complainant about other alleged sexual assaults, said by the defence to be false, under the Youth Justice and Criminal Evidence Act 1999. He also challenged the directions on consent and honest belief in consent. His sentence challenge concerned categorisation under the sexual-offences sentencing guideline and findings of severe psychological harm.

1. The court dismissed the renewed applications for leave to appeal against conviction and sentence.

2. The trial judge applied the correct approach to the proposed cross-examination. Under the Youth Justice and Criminal Evidence Act 1999, alleged prior false complaints may be relied on only where there is a proper evidential basis that the earlier complaint was made and was false. The required foundation is less than a strong factual basis for concluding falsity, but there must be material from which falsity could properly be concluded. The judge’s formulation of a sound basis for alleging untruth was not too restrictive. The approach was consistent with R v RD [2009] EWCA Crim 2137 and R v T; R v H [2002] 1 WLR 632.

3. The assessment was fact-sensitive and evaluative. The judge had considered the available material, the very long lapse of time, and each of the three other complaints. The Court of Appeal would not reargue that assessment merely because another judge might have reached a different view. The proposed further ground was also inconsistent with the way the defence had presented the case at trial. No serious failure in the conduct of the defence rendered the convictions unsafe.

4. The directions on count 6 did not create an arguable error. The evidence presented a direct conflict: the complainant said that intercourse occurred without consent, while the applicant denied that intercourse occurred in the office. If the complainant’s account were accepted, there was no realistic issue that the applicant honestly believed she consented. A separate belief-in-consent direction was therefore unnecessary.

5. The sentences were not manifestly excessive. A sentencing judge may find severe psychological harm without medical or psychological expert evidence where the evidence and circumstances support that conclusion. The judge was entitled to rely on the victims’ ages, grooming, isolation, abuse of influence, lasting harm and the applicant’s previous sexual conviction. The individual and total consecutive sentences properly reflected the gravity of the offending, with allowance for age and totality.

• Court of Appeal (Criminal Division) — in R v Conn [2018] EWCA Crim 1752, dismissed the renewed applications for leave to appeal against conviction and sentence.

• Single judge of the Court of Appeal — refused the applications, leading to the renewed applications before the full court.

• Kingston upon Thames Crown Court — on 18 October 2016 convicted the applicant of indecent assault and two rapes; on 21 October 2016 imposed consecutive sentences totalling 15 years’ imprisonment.