Joshi, R. v

Under Youth Justice and Criminal Evidence Act 1996, section 41 strictly restricts cross-examination of a complainant about previous sexual conduct, sexual reputation and material impugning credibility. Leave is available only within the statutory exceptions and where refusing it might render the jury’s conclusion unsafe.

Where the issue is consent, a direction may properly distinguish drunken consent from intoxication so severe that the complainant cannot willingly make a choice. In the latter state, the complainant lacks capacity to consent. A clear direction that the jury must acquit if consent may have existed is not defective.

The applicant was convicted at St Albans Crown Court of three sexual offences against a fellow pupil. The prosecution alleged non-consensual sexual activity after the complainant had become extremely intoxicated at a New Year’s Eve party. The applicant maintained that the sexual activity was consensual.

At trial, the judge limited proposed cross-examination under section 41 of the Youth Justice and Criminal Evidence Act 1996. He allowed questions about the complainant’s concern that this incident might lead to gossip, but excluded questions about alleged previous sexual conduct and general sexual reputation. The applicant renewed his application for leave to appeal against conviction, contending that the ruling was wrong and that the jury direction on consent and capacity was defective.

1. The renewed application for leave to appeal against conviction was refused. Neither proposed ground was arguable.

2. The judge had correctly limited cross-examination under section 41 of the Youth Justice and Criminal Evidence Act 1996. The proposed questions concerned alleged previous sexual conduct, sexual reputation and gossip about such conduct. They fell squarely within the statutory prohibition. The limited questions permitted about a fear of gossip arising from the incident itself adequately addressed the asserted motive to make a false complaint. Excluding the further material created no risk of an unsafe verdict.

3. Section 41 was stringent. Cross-examination about previous sexual conduct was rarely, if ever, permissible. Cross-examination about an alleged sexual reputation, or about what an accused understood to be a complainant’s previous sexual experience, was also prohibited. The statutory exception potentially relevant to the application concerned material going to the accused’s belief in consent, subject to the statutory safety condition.

4. The summing-up correctly directed the jury on consent and capacity. Consent was a state of mind and a person who merely gave in because they believed they could not prevent the conduct did not consent. Intoxication lay on a spectrum: a person could consent despite alcohol, but a person so drunk that they could not willingly make a choice lacked capacity to consent. The judge also made clear that the jury should acquit if they thought the complainant might have consented.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused.

• Crown Court at St Albans: on 12 April 2017, the applicant was convicted before Judge Carroll of three sexual offences. On 11 September 2017, he received concurrent terms of detention in a young offender institution, the longest being four years.