R v Marvin Hill

For the purposes of section 41(5) of the Youth Justice and Criminal Evidence Act 1999, an unsolicited and potentially damaging answer given by a prosecution witness during defence cross-examination may be treated as evidence adduced by the prosecution. That permits an application for leave, but it does not determine admissibility.

Leave remains unavailable unless excluding the proposed evidence might render a jury’s conclusion unsafe under section 41(2)(b). Evidence of marginal relevance will not satisfy that condition. Prior sexual activity with another person does not, without a proper evidential basis, rebut non-consent to intercourse with the accused or support an inference of consent. Speculative alternative explanations for injuries do not meet the threshold. The restriction applies to a single prior incident as well as a series of sexual acts.

The appellant was convicted at Portsmouth Crown Court of rape following a jury trial. He received an extended determinate sentence of 15 years, comprising nine years’ custody and a six-year extension period.

His case was that the complainant had consented to anal intercourse. The prosecution case was that he had raped her vaginally. DNA evidence showed semen from another man on vaginal swabs, with a possible deposition period of up to ten days before the examination. The appellant sought leave under section 41(5) of the Youth Justice and Criminal Evidence Act 1999 to question the complainant about that earlier sexual activity, both to rebut her evidence about unwillingness to have consensual sex and to suggest another cause of bruising.

The appeal concerned whether the evidence passed the statutory gateway and whether its exclusion could have rendered the jury’s conclusion unsafe.

1. The court refused leave to renew Ground 30(c) and dismissed the appeal on Ground 30(d). The conviction was not unsafe.

2. The court applied the approach in R v Hamadi, [2007] EWCA Crim 3048. Although section 41(5) ordinarily concerns evidence introduced through the prosecution’s own examination, it must be read sufficiently liberally to preserve fairness where a prosecution witness gives an unsolicited answer during defence cross-examination which may damage the accused’s case. The complainant’s answer therefore permitted an application under section 41(5).

3. That conclusion did not satisfy the separate condition in section 41(2)(b). The evidence had to be sufficiently significant that refusing leave might render a conclusion on a relevant issue unsafe. Marginally relevant evidence does not meet that standard.

4. The evidence that the complainant had sexual relations with another man during the preceding ten days would not assist the jury on whether she consented to anal intercourse with the appellant shortly after meeting him. It neither explained nor rebutted her evidence in a material way. Consent to sexual activity with another person could not be used to support an inference that she consented to intercourse with the appellant. The court noted R v DB, [2012] EWCA Crim 1235, as a factual comparison, while recognising that the purpose for which the evidence was sought there differed.

5. The proposed suggestion that the bruising had been caused by the other man was speculative. There was no evidence of when the earlier intercourse occurred, how it occurred, or how the bruises had been caused or dated. Admission on that basis would undermine section 41’s purpose of limiting cross-examination about a complainant’s sexual history. The fact that the application concerned one identifiable incident did not take it outside the restriction.

• Court of Appeal (Criminal Division) — in R v Marvin Hill, [2024] EWCA Crim 1423, the court refused leave to renew one ground and dismissed the appeal on the ground for which leave had been granted.
• Crown Court at Portsmouth — the appellant was convicted of rape on 8 December 2023 and sentenced on 21 March 2024 to an extended determinate sentence of 15 years.