Michael Hurley v R

Evidence that a complainant has made false allegations of rape against others is generally non-defendant bad-character evidence under section 100, rather than evidence of sexual behaviour under section 41. Where the evidence concerns actual sexual activity and alleged absence of consent, however, it is about sexual behaviour and must pass section 41’s gateways. A proper evidential basis for alleging falsity is required. The inquiry is fact-sensitive. Multiple complaints, retractions or decisions not to prosecute do not, without more, establish falsity or substantial probative value. A conviction is not unsafe merely because fresh evidence might be admitted. The Court of Appeal must assess its likely effect on the verdict. On the facts, the evidence was inadmissible and the convictions were safe in any event.

The appellant was convicted at Liverpool Crown Court in 2016 of assault by penetration and rape and sentenced to seven years’ imprisonment. His application for leave to appeal was dismissed in 2018: [2018] EWCA Crim 228. Following an investigation, the Criminal Cases Review Commission referred the case under section 9(1) of the Criminal Appeals Act 1995.

The fresh material concerned alleged false rape complaints made by the complainant, Y, against other men, including her husband, and allegations of domestic violence against her husband. The central questions were whether the evidence was admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999 or section 100 of the Criminal Justice Act 2003, and, if so, whether the convictions were unsafe.

1. The appeal was dismissed. The court considered all the fresh material, apart from the 2013 domestic-assault allegation which the appellant accepted did not assist his case.
2. On a CCRC reference, the court must make its own assessment of fresh evidence while recognising that it has not heard the whole trial. It should test its provisional view by asking whether the evidence might reasonably have affected the jury. The court also held that the explanation for failing to adduce evidence at trial may carry less weight under section 23(2)(d) of the Criminal Appeal Act 1968 than the other statutory factors.
3. False complaints of rape are evidence of misconduct and therefore non-defendant bad character evidence under section 100 of the Criminal Justice Act 2003. Under section 100(1)(b), the evidence must have substantial, though not necessarily conclusive, probative value concerning a matter of substantial importance, including the complainant’s credibility. The required evaluation is fact-sensitive and is not a discretionary balancing exercise.
4. Where the evidence concerns only what the complainant said, rather than sexual activity, section 41 of the Youth Justice and Criminal Evidence Act 1999 is ordinarily not engaged and section 100 governs. A proper evidential basis for alleging falsity is nevertheless required. Where actual sexual intercourse occurred and the alleged falsehood concerns consent, the evidence is about sexual behaviour and engages section 41. R v Cox (1987) 84 Cr App R 132 did not justify a contrary categorical rule under the later legislation.
5. The earlier rape allegations recorded in the 2004 police report and 2014 GP note lacked a proper evidential basis for finding falsity. The allegations against the husband in 2016 and 2018 concerned actual sexual activity, but were not of substantial probative value concerning the appellant’s allegation and were excluded under section 41(4); they also failed section 100. The domestic-violence allegations likewise lacked substantial probative value. Retractions and non-prosecution could not simply be equated with falsity in the troubled domestic context.
6. Even assuming admissibility, the convictions were safe. Applying R v Pendleton [2001] UKHL 66, the fresh material would probably have given the jury only limited assistance. The appellant’s changing account, the circumstances in which he entered Y’s bed, and her repeated consistent disclosures provided a strong case. The convictions were therefore safe.

1. Court of Appeal (Criminal Division): The appeal following the CCRC reference was dismissed. The convictions were held safe.
2. Court of Appeal (Criminal Division): On 25 July 2018, the application for leave to appeal against conviction was dismissed for the reasons given by the single judge: [2018] EWCA Crim 228.
3. Liverpool Crown Court: On 23 March 2016, the appellant was convicted of assault by penetration and rape and sentenced to seven years’ imprisonment.