X & Anor v R

For evidence of a complainant’s sexual behaviour to be admitted under section 41(3)(c) of the Youth Justice and Criminal Evidence Act 1999, striking similarity is unnecessary, but relevant similarity must be sufficiently probative and not reasonably explicable as coincidence. A sufficient chronological nexus and genuinely probative purpose are required. Provocative dress or dancing does not, without more, support an inference of consent or reasonable belief in consent. Refusal is assessed against the evidence’s substantial probative value and importance in the case as a whole. Statutory conditions also control the power to impose extended sentences on individual counts.

X was convicted at Newcastle Crown Court of numerous sexual and related offences against two complainants. He received an extended sentence of 30 years. Y was convicted of raping the second complainant and sentenced to nine years’ imprisonment.

X appealed against conviction following the refusal of leave to cross-examine the first complainant about later sexual behaviour. He also sought to advance further grounds, adduce fresh evidence and challenge sentence. Y renewed applications for extensions of time to appeal against conviction and sentence and sought to adduce fresh evidence. The central issues were the admissibility and safety of the disputed evidence, and whether the sentences were wrong in principle or excessive.

The court dismissed X’s appeal against conviction, refused permission for the further conviction grounds and refused the fresh-evidence application. It varied X’s sentence in part. Y’s renewed applications concerning conviction, fresh evidence and sentence were refused.

1. Evidence under section 41. The court applied the principles summarised in R v Guthrie (Germaine) [2016] EWCA Crim 1633. Striking similarity was not required, but there had to be relevant similarity which could not reasonably be explained as coincidence, a sufficient chronological nexus and a genuinely probative purpose. The threshold was high.
2. The later incident involving Z was materially different. Z’s account did not mention pole dancing, the alleged sexual activity was masturbation rather than penetrative intercourse, and the incident occurred a considerable time later. The trial judge was therefore entitled to conclude that the statutory threshold was not met. The two other incidents likewise lacked sufficient similarity and temporal connection. The mere fact of provocative dress or dancing could not support an inference of consent, or of reasonable belief in consent.
3. The later incident could not bear on X’s reasonable belief in consent at the earlier alleged offences. Nor was section 41(5) engaged: the complainant’s denial of a previous threesome was not negated by the later incident, her statement about a relationship with Z was vague, and she had not denied pole dancing.
4. Applying the approach identified in R v Wilson & others [2024] EWCA Crim 1514, refusal of leave would not render the jury’s conclusions unsafe. The disputed material had insufficient probative force in the context of the case, and the Facebook messages and other evidence provided a strong evidential basis for the convictions.
5. Sentencing. In X’s case, the judge was entitled to treat the offending as analogous to a campaign of rape and to consider a sentence of 20 years or more. The repeated serious offending, its psychological impact, the later rape of the second complainant after X’s arrest, and his continuing denial justified an extended sentence. However, under section 280 of the Sentencing Act 2020, the earlier-offence and four-year-term conditions were not met for counts 2, 3, 13, 15, 16, 17, 18 and 19. The extended sentences on those counts were quashed and replaced with imprisonment equal to their original custodial terms. The overall 30-year extended sentence remained.
6. Y’s nine-year sentence fell within the appropriate range for a category 2A rape and was neither manifestly excessive nor wrong in principle.

1. Court of Appeal (Criminal Division): In [2025] EWCA Crim 883, X’s conviction appeal was dismissed, his sentence was varied on eight counts, and Y’s renewed applications were refused.
2. Crown Court at Newcastle upon Tyne: X and Y were convicted on 27 June 2022 and sentenced by HHJ Rippon on 13 March 2023. X received an extended sentence of 30 years and Y received nine years’ imprisonment.