T, R. v (Rev 1)

Questions about a complainant’s sexual orientation or identity may constitute “sexual behaviour” under Youth Justice and Criminal Evidence Act 1999, section 41 where, in the circumstances, they are suggestive of sexual activity. The issue is fact-sensitive.

Leave must be refused where proposed questions are general rather than directed to specific instances, or where their main purpose is to impugn credibility. Labelling a credibility challenge as an alleged motive to fabricate does not avoid that restriction. Speculative and irrelevant questions, having no probative value and no logical connection with an alleged motive to make a false rape allegation, may also be excluded under ordinary evidential principles without rendering the trial unfair.

The appellant was convicted at Lewes Crown Court, sitting at the Hove trial centre, of two counts of rape of his former wife during their marriage.

The defence contended that all sexual activity had been consensual. It sought leave under section 41(3)(a) of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the complainant about her present sexual identity, alleged conflict about her sexuality, and related anxieties. The defence asserted that those matters could supply a motive to make false allegations or cause consensual intercourse to be reassessed as non-consensual.

The trial judge refused leave. The appeal concerned whether sexual orientation or identity could be sexual behaviour for section 41 purposes and whether exclusion of the proposed questions made the trial unfair.

1. Appeal dismissed. The judge correctly excluded the proposed questioning. The trial was fair and there was no basis to disturb the jury’s verdicts.

2. For the purposes of section 41, “sexual behaviour” is not confined in every case to completed sexual acts. Although the court declined to formulate a general rule about sexual orientation, questions whether the complainant was lesbian or bisexual, followed by questions founded on that premise, were in these circumstances suggestive of sexual activity. They therefore fell within section 41. The court’s purposive approach was consistent with R v A (No 2) [2001] UKHL 25, which recognised both the protection against improper sexual-history questioning and the overriding need for trial fairness.

3. The proposed questions were wholly generalised. They were consequently barred by section 41(6), which confines permitted questioning to specific instances of alleged sexual behaviour.

4. The judge was also entitled to find that the main purpose of the proposed questioning was to undermine the complainant’s credibility. A genuine evidential basis for an alleged motive to fabricate may sometimes be relevant under section 41(3)(a), as recognised in R v F [2005] EWCA Crim 493. But an assertion of malicious motive cannot be used to circumvent section 41(4): see R v Mokrecovas [2001] EWCA Crim 1644.

5. Here the suggested motive was speculative and lacked any logical evidential foundation. The complainant had accepted consensual sex during the marriage and had wanted a child. Her complaints of abuse also predated the later records referring to anxiety about sexual identity. Refusal could not have rendered the jury’s conclusion unsafe under section 41(2)(b).

6. Further, even if section 41 had not applied, the questions were speculative, irrelevant and without probative value. Their exclusion under ordinary evidential principles caused no material unfairness to the defence.

• Court of Appeal (Criminal Division) — dismissed the appellant’s appeal against conviction: [2021] EWCA Crim 318.
• Lewes Crown Court, sitting at the Hove trial centre — convicted the appellant on 31 May 2019 of two counts of rape.