R v Logan Galbraith

Under Youth Justice and Criminal Evidence Act 1999, section 41(3)(c)(i), a shared feature of past and alleged sexual conduct does not itself establish the required similarity. The conduct must be so similar, in its material circumstances, that the similarity cannot reasonably be explained as coincidence.

The court must also consider whether refusing leave would render the verdict unsafe. Evidence of a previous consensual encounter which does not show that the complainant requested or derived sexual gratification from the conduct alleged may properly be excluded. Exclusion in those circumstances does not make a consent trial unfair.

The appellant was convicted at the Crown Court at Manchester of assault by penetration, sexual assault and attempted rape. His defence was that the sexual activity was consensual and that the complainant had asked him to choke her.

Before trial, he sought leave under section 41 of the Youth Justice and Criminal Evidence Act 1999 to cross-examine the complainant about an earlier consensual sexual relationship in which she had been choked. The trial judge refused leave, holding that the earlier event was not sufficiently similar and that its exclusion would not make the trial unfair.

The appeal challenged that ruling and raised whether the prior incident satisfied the statutory similarity gateway and whether its exclusion rendered the convictions unsafe.

1. Appeal dismissed. The judge correctly refused permission to adduce or ask questions about the complainant’s earlier sexual experience under section 41(3)(c)(i) of the Youth Justice and Criminal Evidence Act 1999.

2. Although the statutory language permits similarity “in any respect”, the relevant conduct must be so similar that coincidence cannot reasonably explain it. The mere fact that choking featured on both occasions did not meet that threshold. In the earlier relationship, the complainant had permitted choking but had not requested it. The appellant’s case was instead that she specifically requested choking during sexual activity after a night out with a man with whom she had had no previous sexual relationship.

3. Those differences meant that there was no evidential basis for treating the earlier incident as evidence that the complainant requested choking on the occasion charged, or that it reflected a repeated sexual practice. The proposed questioning therefore lacked the necessary relevance to the issue of consent.

4. The separate safety condition in section 41(2) was also not met. There was no material suggesting that the complainant had obtained sexual gratification from being choked, and her account was that she had not asked the appellant to do it. The exclusion of the evidence did not prevent a fair trial or render the convictions unsafe.

5. The court applied the approach in R v A (No 2) [2001] UKHL 25 and held that the statutory protection against irrelevant and humiliating sexual-history questioning was properly maintained on the facts.

• Court of Appeal (Criminal Division) dismissed the appeal against conviction: [2024] EWCA Crim 1148.
• Crown Court at Manchester convicted the appellant of assault by penetration, sexual assault and attempted rape after trial, and sentenced him to a total of seven years and five months’ imprisonment.