Aidarus, R v

Leave to introduce a complainant’s previous sexual behaviour under Youth Justice and Criminal Evidence Act 1999, section 41(3)(c)(ii), requires a degree of contextual similarity which cannot reasonably be explained as coincidence. A shared sexual act alone will not ordinarily meet that test where the circumstances materially differ.

Under section 41(5), evidence of previous sexual behaviour is not admissible merely because it could contradict an inference from prosecution evidence. It must be necessary to rebut or explain the evidence actually adduced. A statement tendered to prove that it was made, rather than that it was true, does not open that issue.

A sentence imposed on a young offender will not be varied unless manifestly excessive. Age at the offence is important, but the appropriate reduction depends on criminal maturity, immaturity and all aggravating circumstances.

The applicant was convicted at Birmingham Crown Court of raping a 14-year-old complainant and was sentenced to six years’ detention in a young offender institution.

His applications for leave to appeal conviction and sentence were referred by the Registrar. The conviction challenge concerned rulings excluding evidence of the complainant’s sexual behaviour under section 41 of the Youth Justice and Criminal Evidence Act 1999. The proposed evidence concerned an earlier incident involving oral sex and later alleged sexual encounters with older men. The defence also sought to use the earlier incident to rebut part of the complainant’s Achieving Best Evidence interview.

The central issues were whether the proposed evidence satisfied section 41 and whether the sentence gave sufficient effect to the applicant’s age at the time of the offence.

1. Disposition. The court refused leave to appeal against both conviction and sentence.

2. Section 41(3)(c)(ii). The trial judge was entitled to refuse leave to adduce the two categories of prior sexual behaviour. The relevant inquiry was whether the asserted similarities were of such a degree that they could not reasonably be explained as coincidence. The fact that each incident involved oral sex did not itself provide the necessary similarity.

   The earlier incident involved another 13-year-old, known to the complainant, and occurred in circumstances of asserted pressure arising from a threatened disclosure of a photograph. The later incidents occurred about two years after the alleged rape, in the different context of alleged drug debts, planned meetings and older men. Neither category was sufficiently similar to the alleged consensual sexual activity relied on by the defence. Their exclusion could not render an eventual conclusion on consent unsafe under section 41(2)(b).

3. Section 41(5). The complainant’s statement in her Achieving Best Evidence interview was evidence of the exchange which she said had occurred during the incident. It was not adduced to prove that she had in fact had no previous experience of oral sex. The defence case was that the exchange had not occurred at all. Evidence of a previous sexual act therefore neither rebutted nor explained the prosecution evidence and was properly excluded.

4. Sentence. The judge was entitled to treat the offending as category 3A. Significant aggravating features included planning and targeting, the presence of another person to assist, the complainant’s age, the location and ejaculation. There was little mitigation apart from the applicant’s age.

   The applicable youth sentencing principles did not directly govern because the applicant was 18 when convicted, although his age of just over 17 at the offence remained a powerful consideration. The court considered that the notional pre-reduction sentence was about eight years. A 25% reduction, producing six years’ detention, adequately reflected his age, criminal maturity and absence of identified immaturity. The sentence was severe but not manifestly excessive.

• Court of Appeal (Criminal Division): By a single judgment, the court refused the referred applications for leave to appeal against conviction and sentence: [2018] EWCA Crim 2073.
• Crown Court at Birmingham: The applicant was convicted by a jury of rape before His Honour Judge Drew QC and sentenced to six years’ detention in a young offender institution.