Philo-Steele, R. v

Evidence of a complainant’s prior sexual behaviour is not relevant under Youth Justice and Criminal Evidence Act 1999, section 41(3)(a), merely because it might suggest sexual knowledge. It must bear on a live issue, such as explaining knowledge in an allegation that would otherwise be unexpected. Where the alleged conduct does not display such unexpected knowledge, the statutory gateway is not met.

Prior sexual abuse of a child does not, without more, make it more likely that a parent asked leading questions or suggested allegations. The evidence is therefore inadmissible if it does not assist a live issue. A sentencing judge may properly find dangerousness from the whole evidential picture, notwithstanding some mitigating features in expert reports and available protective measures.

The appellant was convicted at the Crown Court at Kingston-upon-Thames of 11 offences of child sexual abuse involving three child complainants. He received an extended sentence of 14 years, comprising 12 years’ custody and a two-year extension period.

At trial, the judge refused two defence applications under section 41 of the Youth Justice and Criminal Evidence Act 1999. The first sought evidence of one complainant’s earlier sexualised behaviour with peers. The second sought evidence that a child, whose evidence was admitted as bad-character evidence, had previously been sexually abused by another man.

The appeal challenged those rulings and the safety of the convictions. The appellant also renewed, without representation, his application for permission to appeal his sentence. The central issues were relevance under section 41 and whether the dangerousness finding and sentence were arguably wrong.

1. The appeal against conviction was dismissed. The first section 41 application did not meet the statutory gateway. The evidence sought did not relate to a live issue concerning the source of the complainant’s sexual knowledge. The conduct alleged in the bath was substantially undisputed, with the issue being its sexual character. The disputed bedroom conduct was not so exceptional that it demonstrated unexpected sexual knowledge. Allegations of oral sex and anal penetration were not allegations made by that complainant against the appellant.

2. The court applied the example identified by Lord Hope in A (No 2) [2001] UKHL 25. That example may assist where a young complainant’s account displays sexual knowledge which requires an alternative explanation. It did not assist here. The trial judge was therefore right to conclude that the evidence and proposed questions did not relate to a relevant issue under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999. The renewed application added nothing material.

3. The second application was also properly refused. Previous sexual abuse of the child did not make it more likely that his mother had asked leading questions or suggested answers. Questions about her reaction to the bathing and massage allegations could be asked without introducing the earlier abuse. The evidence was irrelevant under section 41 and would also have been irrelevant under the ordinary rules of evidence if section 41 did not apply to that child.

4. The renewed application for permission to appeal sentence was refused. The sentencing judge was entitled to assess dangerousness from the whole evidence, including the pattern and escalation of offending, the appellant’s continuing lack of insight, and the risk identified in the reports. Protective measures and the custodial term did not render the risk acceptable. The judge was also entitled to increase the guideline starting point to reflect vulnerability features from a higher harm category and multiple high-culpability features. The aggregate extended sentence was neither manifestly excessive nor otherwise wrong.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and refused the renewed, unrepresented application for permission to appeal sentence: [2020] EWCA Crim 1016.
• Court of Appeal (single judge): Morris J granted permission to appeal against conviction but refused permission to appeal against sentence.
• Crown Court at Kingston-upon-Thames: the appellant was convicted on 9 May 2019 and sentenced on 25 July 2019 to an extended sentence of 14 years.