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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wilson & Anor v R. [2024] EWCA Crim 1514 (12 December 2024) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2024/1514.html Cite as: [2024] EWCA Crim 1514, [2025] WLR(D) 142 |
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202303874 B5 |
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
His Honour Judge Julian Smith
T20197418
Strand, London, WC2A 2LL |
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B e f o r e :
MRS JUSTICE McGOWAN
and
HIS HONOUR JUDGE BLAIR KC, HONORARY RECORDER OF BRISTOL
Sitting as a judge of the Court of Appeal (Criminal Division)
____________________
(1) LEONARD WILSON (2) FRANK SMITH |
Appellants |
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- and - |
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THE KING |
Respondent |
____________________
Gordon Ross (assigned by the Registrar) for the appellant Frank Smith
Sarah Morris (instructed by Crown Prosecution Service) for the Respondent
Hearing dates : 12 November 2024
____________________
Crown Copyright ©
Lord Justice Edis:
Introduction
The facts
"My family use my phone, so I was concerned they may find them if I didn't delete them. I didn't want to keep them if she did not want to talk to me any more."
The submissions and the judge's ruling
a) Wilson's reasonable belief in consent;
b) Motivation for making a false complaint of rape; and
c) Consent.
i) The previous sexual conduct evidence is admissible because it is relevant to the issue of whether the prosecution can prove that Wilson did not reasonably believe that C consented to sexual intercourse with him. This is not an issue of consent, and so the evidence may be admissible under section 41(3)(a) of the 1999 Act.
ii) The circumstances of the previous sexual acts were so similar to those of the activity which was the subject of count 3 of the indictment that they could not be explained by coincidence and so the evidence may be admissible under section 41(3)(c) of the Act.
Location
All instances of sexualised conduct between C and Wilson take place in the immediate area of a children's playground in the same park.
Presence of others
On each occasion penetrative sex took place it always followed a routine of general chat amongst a small group followed by a trip to the children's playground. They never met alone or attempted to hide the fact of where they were going together.
Absence of foreplay
Wilson would say that no pre-penetrative behaviour, such as touching or kissing ever took place between them at any time.
Time
In every instance sexual contact appears to take place in the late evening as well a summer night. The previous incidents had occurred about 12 months before, in July or August and September 2017.
Unprotected Penetration
There was never any discussion about contraception.
Liaison without commitment
Neither of them had any interest in any sexual relationship beyond that of immediate sexual gratification as demonstrated by the previous occasions this has happened and the rather perfunctory contact between the parties.
"The prosecution's case is based on the force used on the complainant, her repeated requests for them to stop and her telling them no. She was forced to cross the field and pushed over a bench and struck her head on the railings before the penetration continued. The men were in each other's company for the later sexual activity and each would have been aware of her response and the actions of the other. There is a clear dispute regarding consent with each accused maintaining they were specifically given consent and [C] specifically alleging there was no request for or granting of consent and indeed she had said no and stop. Miss Morris concedes that unless the jury are sure of [C's] account of the events, the prosecution will not have proved the facts establishing that there was no consent to what took place. If they are not sure [C] is telling the truth about what happened – and her case is that she was manhandled, her will overborne and force used upon her to put her over the bench – then they will have failed to prove the lack of consent and the case will fail. If the defence establish that what they say happened did or may have happened, in terms of consent and physical contact then the jury would not be sure the prosecution case is proved and are required to find them not guilty. …..The issue here is again the starkness of the challenge as between the account given by [C] and that of Wilson. I repeat that the issues to be resolved in relation to consent are such that the jury's conclusions on the facts will necessarily resolve the matter and I remain concerned that the focus on a reasonable belief is to invite the jury to reach conclusions regarding consent on the basis of her previous sexual history. The response to Smith's application relates to Wilson as well and I repeat what was said above, i.e. that the issue is so stark that belief in consent would not on any realistic consideration of the case be an issue to resolve."
"The geographical location is not exceptional in my judgment given the circumstances of the participants, their ages and the locations available to them that could be considered private. Not the same as partners of two years who are able to exercise complete choice as the circumstances and locations of their sexual activity but yet choose circumstances that are specific and distinctive, and that also demonstrate a clear choice on their part, given the alternatives that are presumably available. Sexual activity of such a nature that mirrors an earlier and very specific set of choices is relevant to the assertion of consent because those distinctive features may suggest a choice exercised by both participants."
"And can I ask you to be cautious in your response to [C] and some of the comments made about her? There were remarks made about how young people lived in 2018, and the reality of sharing images and the like, and how they come in to socialise with each other in a way that is different, perhaps, from Mr Boulter's experience, and possibly yours and mine. And in particular, in relation to [C], that she was presenting with troubling behaviour, in particular by reference to the statement made by her father and what he said about her. Mr Boulter suggested that in relation to [C], the "rot had set in long before the 28th of August of 2018", and made reference to inappropriate relationships and the like. Can I remind you that you're considering this allegation on this occasion, the 28th of August 2018. You only know of [C's] history to the limited extent that she disclosed it in cross-examination. You must not permit yourself to speculate about her background or seek to form an inappropriate judgment regarding her behaviour on limited or no information. You are assessing the evidence given in relation to those allegations. Please retain your focus on that."
"You must not speculate. No questions have been asked about it and this is because it is not relevant to any issue in the case that you must decide. The fact that Leonard Wilson and C had engaged in sexual intercourse on a previous occasion is something that C elected to tell you and it is, of itself, wholly irrelevant to this case and the issues you must decide. That is because the issues are stark: the Crown say there can be no question of consent or reasonable belief in consent if what C says is true. The defence say that she gave each man consent that night".
"Asked about Leonard Wilson and their previous meeting, she said, "I'd met Leonard before once or twice. It was a long time ago." It was put, "Well, you've met him on at least three occasions." "I did not meet him on three occasions. But I slept with him once." Can I just be clear, I gave you a direction saying you must focus on the evidence in the case. I have given it repeatedly. Again, you are to focus on - as I answered the question that was posed to me by you during the evidence - you focus on the issues on the 28th of August and the issues that are raised in the evidence and throughout that. Any previous sexual contact between them is of no relevance to those issues, bearing in mind they are saying there was consent that night. And there is a huge dispute on the facts which you are to resolve. So focus, please, on the issues on the 28th as I directed you. Any previous sexual contact between them is of no relevance in this case."
"If you are sure that [C] did not consent, the prosecution must also prove to you that the defendant whose case you are considering did not reasonably believe that she did consent.
So, question number 3: are you sure the defendant whose case you are considering knew [C] was not consenting or did not reasonably believe that she was consenting. To decide this, you need to answer two questions: one, did the defendant genuinely believe, or may he have genuinely believed that [C] consented, and two, if the defendant did, may - or may have, forgive me - believed that [C] consented, was his belief reasonable? You must answer question 1 of those two questions first. If you are sure that the defendant knew [C] was not consenting, or did not genuinely believe that she consented, then you do not need to answer question 2, and you will find him guilty. But if you decide that the defendant whose case you are considering did genuinely believe or may have believed that [C] had consented, you must then decide question 2, which is whether his belief in [C's] consent was reasonable. To answer this, you must decide whether an ordinary, reasonable person in the same circumstances as the defendant would have believed [C] was consenting. You must consider all the evidence in the case, the circumstances of the contact and the meeting, and, although there is no obligation on the defendant to take any specific steps to ascertain consent, whether he did so. If you find the defendant's belief she was consenting was or may have been reasonable, you will find him not guilty. So that is rape."
The law
41.— Restriction on evidence or questions about complainant's sexual history.
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross-examination,
by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such leave unless it is satisfied—
(a) that subsection (3) or (5) applies, and
(b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(3) This subsection applies if the evidence or question relates to a relevant issue in the case and either—
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been, in any respect, so similar—
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused, or
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event,
that the similarity cannot reasonably be explained as a coincidence.
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness.
(5) This subsection applies if the evidence or question—
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate).
(7) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(8) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
"May a sexual relationship between a defendant and complainant be relevant to the issue of consent so as to render its exclusion under section 41 of the Youth Justice and Criminal Evidence Act 1999 a contravention of the defendant's right to a fair trial?"
"The context and the purpose of the evidence is not so much to show from past events that history has been repeated, as to indicate a state of mind on the part of the complainant towards the defendant which is potentially highly relevant to her state of mind on the occasion in question."
"…a case such as the present one where a defendant seeks to give evidence of the complainant having had previous consensual sexual intercourse with him."
"After all, good sense suggests that it may be relevant to an issue of consent whether the complainant and the accused were ongoing lovers or strangers. To exclude such material creates the risk of disembodying the case before the jury. It also increases the danger of miscarriages of justice. These considerations raise the spectre of the possible need for a declaration of incompatibility in respect of section 41 under section 4 of theHuman Rights Act 1998."
"10 The principles engaged by section 41 can be summarised briefly. It is accurate that striking similarity is not required: see R v A (No 2) [2001] UKHL 25; [2002] 1 AC 45, para 133. There must be relevant similarity between the previous and current alleged conduct which necessitates an exploration of the circumstances so as to avoid unfairness to the defendant: see R v M (M) [2011] EWCA Crim 129 at [48]. Third, if it would be tantamount to saying that the complainant was a person who was engaged in casual sex in the past and therefore would have been likely to do so on the occasion that the complainant was with the defendant, that cross-examination will not be allowed (R v Harris (Wayne) [2009] EWCA Crim 434 at [17]), that the principal purpose of cross-examination must not be to impugn credibility (R v Harris (Wayne), at para 20), but must be truly probative to the issue of continuity: R v Hamadi (Zeeyad) [2007] EWCA Crim 3048. Furthermore, there must be a sufficient chronological nexus between the events to render the previous behaviour probative: see R v M (M) at para 48. Finally, there is the exercise of judgment in connection with the application.
11 It is an exercise of judgment whether or not to permit leave and its exercise demonstrates the height of threshold in section 41(3)(c) of the Act: R v Hamadi, para 23. In that case, this court found that the following similarities could reasonably be described as mere coincidence falling short of a threshold in paragraph (c). These were that the complainant herself instigated sexual activity, that the activities took place outside in relatively public places in winter and while the complainant was involved in a relationship with her boyfriend."
i) The evidence must pass the similarity test in section 41(3)(c) as explained in R v. A (No 2), or the contemporaneity test in section 41(3)(b);
ii) It must either have substantial probative value on an important issue, which is likely to be the issue of consent, or there must be some other reason why its exclusion might render a conclusion on that issue unsafe. This flows from our construction of the section 41(2)(b) filter;
iii) It must not be reasonable to assume that the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness, see section 41(4).
Discussion
"….the discredited twin myths, viz 'that unchaste women were more likely to consent to intercourse and in any event, were less worthy of belief': R v Seaboyer (1991) 83 DLR (4th) 193, 258, 278c, per McLachlin J. Such generalised, stereotyped and unfounded prejudices ought to have no place in our legal system. But even in the very recent past such defensive strategies were habitually employed. It resulted in an absurdly low conviction rate in rape cases. It also inflicted unacceptable humiliation on complainants in rape cases."
"call evidence to explain or rebut something said by a prosecution witness in cross-examination about the complainant's sexual behaviour which was not deliberately elicited by defence counsel and is potentially damaging to the accused's case. "
"We conclude that the admission of this evidence would have been, to use the words of the trial judge, "speculative and without any causative power". In the terms of s.41(2)(b) it may be appropriately put as falling far short of circumstances where the refusal of leave by the trial judge might have the result of rendering unsafe a conclusion of the jury on the issue of how the bruising was caused."
Conclusion