Leonard Wilson & Anor v R

Section 41 of the Youth Justice and Criminal Evidence Act 1999 imposes three cumulative filters on evidence of a complainant’s previous sexual behaviour. The evidence must pass an applicable similarity or contemporaneity gateway, have substantial probative value on an important issue or otherwise be necessary to avoid an unsafe conclusion, and not be adduced mainly to attack the complainant’s credibility. Previous consensual intercourse with the defendant may illuminate state of mind, but an isolated encounter about a year earlier, without an ongoing relationship, did not materially support present consent or reasonable belief in consent. Section 41(5) permits necessary rebuttal of damaging volunteered evidence; it does not permit an accused to exploit favourable evidence through impermissible questioning or submissions.

Leonard Wilson and Frank Smith were convicted at the Crown Court at Maidstone of separate counts of rape arising from the same incident. The trial was the third attempt to determine the case. Before trial, the judge refused Wilson permission under section 41 of the Youth Justice and Criminal Evidence Act 1999 to adduce evidence that he and the complainant had previously had consensual intercourse at the same park.

During recorded cross-examination, the complainant volunteered that she had previously slept with Wilson. The evidence was left before the jury, but the judge directed that it was irrelevant. Wilson argued that the evidence should have been admitted under sections 41(3)(a), 41(3)(c) or 41(5), and that the conviction was unsafe. Smith argued that his conviction was also unsafe if Wilson succeeded. The central issue was whether the previous sexual activity satisfied section 41 and whether its exclusion rendered either conviction unsafe.

1. Disposition. Wilson’s appeal was dismissed. Smith’s appeal, which depended on Wilson succeeding, was also dismissed.
2. Statutory framework. Section 41 excludes otherwise admissible evidence of a complainant’s sexual behaviour unless the statutory conditions are met. The court identified three cumulative filters: an applicable similarity or contemporaneity gateway under section 41(3)(c) or (b); the safety requirement in section 41(2)(b); and the purpose restriction in section 41(4). The second filter requires more than relevance. Where the significance of the evidence is disputed, it requires substantial probative value on an important issue and substantial importance in the case as a whole. The court treated the language of section 100(1)(b) of the Criminal Justice Act 2003 as an appropriate equivalent test.
3. Reasonable belief in consent. The previous intercourse did not materially illuminate the complainant’s state of mind towards Wilson on the charged occasion. It had occurred about a year earlier, there had been no continuing relationship, and Wilson did not say that he relied on the earlier events as the basis for believing that consent could be assumed. The evidence therefore lacked substantial probative value and its proposed use was reasonably understood as an attempt to impugn credibility. The judge was right to refuse admission under section 41(3)(a).
4. Similarity and consent. Similarities and dissimilarities must both be considered. The fact that previous intercourse occurred at the same place and in a similar manner did not make it substantially probative of present consent. The decision in R v T ([2004] EWCA Crim 1220) was properly distinguished on its facts. The statutory threshold remained high.
5. Volunteered evidence. Section 41(5) may permit evidence necessary to explain or rebut damaging sexual-behaviour evidence volunteered by a prosecution witness in cross-examination, where the defence did not deliberately elicit it. Wilson’s purpose was different: he wished to exploit favourable evidence through further impermissible questioning, defence evidence and submissions. Section 41(5) therefore did not apply.
6. The failure to edit the complainant’s volunteered reference from the recording was an error which operated in favour of the appellants. The judge’s direction that the previous sexual contact was irrelevant was correct, and the convictions remained safe.

1. Court of Appeal (Criminal Division). Wilson’s appeal was dismissed. Smith’s appeal was also dismissed because it depended on Wilson’s appeal succeeding.
2. Crown Court at Maidstone. The appellants were convicted of rape after the judge refused permission to adduce evidence of Wilson’s previous consensual sexual activity with the complainant.