R v BJK

The statutory restriction on evidence and questioning about a complainant’s sexual behaviour is engaged where the defence suggests that abuse by another person was mistakenly attributed to the accused. Leave requires the statutory gateway, evidence about specific instances, and a real possibility that refusal would make the verdict unsafe; the judge retains discretion. The court must examine the evidential foundation closely. Speculation, or a hope that questioning may change the complainant’s account, is insufficient. Where the main purpose is to attack credibility, leave is barred. The conviction appeal was dismissed. The sentence appeal succeeded only to correct the statutory basis and structure of the sentence and the statutory basis for the sexual harm prevention order.

Following a retrial in the Crown Court at Lewes, the appellant was convicted of 11 serious sexual offences against two complainants and received consecutive sentences, including a special custodial sentence and an extended licence period. He appealed his convictions, arguing that the trial judge wrongly excluded questions about the principal complainant’s previous allegations against five other men and a possible mistaken transposition of abuse. The appeal also challenged the sentence as excessive and raised technical sentencing issues. The central conviction issue was whether the proposed questioning was excluded by section 41 of the Youth Justice and Criminal Evidence Act 1999 and, if so, whether refusal of leave might render the verdict unsafe.

1. Conviction appeal dismissed. The court held that sexual behaviour under section 41 of the Youth Justice and Criminal Evidence Act 1999 has a broad and purposive meaning. It may include sexual experience not involving the accused, and may include non-consensual or involuntary conduct. The court relied on R v T [2021] EWCA Crim 318.
2. Where the defence alleges that a complainant has transposed abuse by another person onto the accused, the proposed questions concern sexual behaviour. Leave can be granted only where the statutory gateway applies, the evidence or questions concern specific instances, and refusal might render the jury’s conclusion unsafe. Even then, admission remains discretionary. The distinction between allegations said to be knowingly false and allegations relied on to suggest transposition was explained by R v T; R v H [2001] EWCA Crim 1877, R v C and B [2003] EWCA Crim 29 and R v AM [2009] EWCA Crim 618.
3. The evidence concerning the five other men differed materially in conduct, location and relationship. The only common feature was Facebook contact. There was therefore no evidential foundation for confusion or transposition. The proposed questioning was speculative and could not establish a risk that refusal would make the convictions unsafe. The court also held that the sole or main purpose was to undermine credibility, so section 41(4) independently precluded leave. The protective purpose of section 41, including protection against unnecessary humiliation, was affirmed by reference to R v A (No 2) [2001] UKHL 25.
4. Sentence appeal allowed to a limited technical extent. The court granted leave to appeal against sentence, held that section 278 of the Sentencing Act 2020, rather than section 265, applied to an offender over 21, and declared the count 9 sentence to be a 10-year special custodial sentence comprising nine years’ custody and one year on licence. The determinate sentence was to be imposed first, followed consecutively by the extended sentence, applying R v Clarke [2017] EWCA Crim 393. The court also corrected the statutory basis of the sexual harm prevention order. In all other respects, leave to appeal against sentence was refused.

1. Court of Appeal (Criminal Division) In [2024] EWCA Crim 667, the conviction appeal was dismissed. Leave to appeal against sentence was granted only on technical grounds, and the sentence appeal was allowed to that extent.
2. Crown Court at Lewes Following retrial, the appellant was convicted of 11 serious sexual offences and sentenced to consecutive custodial terms, including a special custodial sentence and extended licence period.