Halliday, R v

Evidence of an earlier sexual allegation may be admitted as bad-character evidence under Criminal Justice Act 2003 where it is relevant to propensity and to the truth of the present complainant's account. A previous acquittal does not itself make that evidence unfair. The trial jury may assess the witness's reliability, particularly where the earlier and present allegations have substantial similarities.

Youth Justice and Criminal Evidence Act 1999 prevents cross-examination designed to invite an inference that a complainant consented on the charged occasion because of sexual behaviour on other occasions. In sentencing, significant planning may consist of planning to seek and abduct a vulnerable victim; it need not identify the eventual victim in advance.

The applicant was convicted of two rapes of VA and received an extended sentence comprising 13 years' custody and a seven-year extended licence period. VA was protected by the anonymity provisions of the Sexual Offences (Amendment) Act 1992.

His applications for leave to appeal against conviction and sentence had been refused by the single judge. The renewed applications challenged the admission of SP's evidence of an earlier alleged sexual assault, prosecuting counsel's opening remarks, the exclusion of proposed sexual-history evidence about SP, evidence of an earlier visit to an area associated with prostitution, the cumulative fairness of the trial, the sentencing category, harm factors and dangerousness.

At the hearing, the applicant also made an unnotified oral application to adduce fresh evidence from counsel in the earlier proceedings.

1. The court refused the oral application to adduce fresh evidence. It was properly treated as an application under section 23 of the Criminal Appeal Act 1968. No proper application or notice had been given, the respondent was unrepresented, and the applicant could not show that the evidence could not have been placed before the trial court earlier.

2. The renewed application for leave to appeal against conviction was refused. SP's evidence was capable of showing a propensity to commit serious sexual offences against vulnerable women and was admissible under section 101(1)(d) of the Criminal Justice Act 2003. The earlier acquittal did not prevent its use. R v Z [2000] 2 AC 483 showed that a complainant's evidence can be admissible bad-character evidence despite an earlier trial ending without the jury being sure of guilt. Here, SP's evidence had not previously been considered by a jury.

   The detailed similarities between the two independent accounts gave SP's evidence substantial probative value. The jury could assess her reliability and consider the unlikelihood of two unconnected women giving such similar accounts. Its admission neither created double jeopardy nor unfair satellite litigation.

3. Prosecuting counsel had gone beyond the judge's express ruling by linking SP's inability to give evidence in 2016 to trauma caused by the applicant. That conduct was deprecated. However, the trial judge was best placed to assess prejudice, and the jury's discharge was neither necessary nor appropriate because SP could be cross-examined and the jury could assess her reliability.

4. The proposed evidence of SP's prior sexually uninhibited behaviour was properly excluded under section 41 of the Youth Justice and Criminal Evidence Act 1999. It invited the prohibited inference that prior consent or sexual behaviour meant that SP consented to sexual activity with the applicant on the occasion charged. The linked bad-character application added no separate relevant consideration.

5. The evidence of the applicant's earlier visit to Leicester was relevant. The jury could consider whether it and the later journey were connected, and whether the applicant was acting as a predator rather than as a good Samaritan. None of the challenged rulings, separately or cumulatively, cast doubt on the safety of the convictions.

6. The renewed application for leave to appeal against sentence was also refused. The judge was entitled to find Category A culpability because the applicant had planned to scout for and abduct a vulnerable victim. The late service of VA's victim personal statement was a legitimate complaint, but caused no material unfairness. Expert evidence was not essential to establish severe psychological harm. The judge was entitled to find additional harm factors and dangerousness. The 13-year custodial term was within the Category 2A range and was not manifestly excessive.

• Court of Appeal (Criminal Division): By [2019] EWCA Crim 1457, the court refused the renewed applications for leave to appeal against conviction and sentence.
• Single judge: The applications for leave to appeal against conviction and sentence were refused.
• Crown Court: The applicant was convicted of two offences of rape and sentenced to an extended sentence of 13 years' custody with a seven-year extended licence period. The court and citation are not stated in the judgment.