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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> T, R. v (Rev 1) [2021] EWCA Crim 318 (25 February 2021) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2021/318.html Cite as: [2021] 2 Cr App R 10, [2021] Crim LR 720, [2021] EWCA Crim 318, [2021] WLR(D) 223, [2021] 4 WLR 59 |
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CRIMINAL DIVISION
Strand London WC2A 2LL |
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B e f o r e :
MR JUSTICE SPENCER
MR JUSTICE BOURNE
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REGINA |
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V |
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"T" |
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
MS R KARMY-JONES QC & MS B CRIPPS appeared on behalf of the Crown.
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Crown Copyright ©
Introduction
Background facts
Application and Ruling at trial
i. " Restriction on evidence or questions about complainant's sexual history.
ii. 41. (1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(b) no evidence may be adduced, and
(c) no question may be asked in cross-examination
i. by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.
ii. (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.
iii. (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
iv. (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
v. that the similarity cannot reasonably be explained as a coincidence.
vi. (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.
vii. (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.
viii. (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).
ix. (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.
x. (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."
i. "Interpretation and application of section 41.
ii. 42. (1) In section 41—
(a) 'relevant issue in the case' means any issue falling to be proved by the prosecution or defence in the trial of the accused;
(b) 'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented);
(c) 'sexual behaviour' means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused; and
(d) subject to any order made under subsection (2), 'sexual offence' shall be construed in accordance with section 62."
i. "With the benefit of hindsight I do wonder whether I should have challenged underlying issues before the wedding. I suspected that [the complainant] might be conflicted regarding her sexuality and therefore marrying for the wrong reason, but we never discussed this in any of our conversations."
i. "It appears that [the complainant] has deep seated anxiety about her sexual identity, in particular she is fearful of the responses and possible rejection of others including work colleagues. Owing to her anxiety she has a tendency to ruminate about this and this leads to a spiral of anxiety and worrying thoughts about others perceiving her possible sexual preference."
i. "...critical incidents described including bullying from children at her school in relation to her sexuality. Rejection from strictly religious parents was also described in relation to her sexuality (after writing to her parents a letter to outline her difficulties and confusion)."
i. "It is also relevant to note that she says that throughout the relationship... there was as well, consensual sex. She has highlighted three occasions when the defendant, intoxicated, raped her. And in terms of then suggesting that you can apply a backwards process in terms of a thought process is not based, in my judgment, on any evidential basis. It is purely speculative. And it ignores the fact that this complainant says that there was consensual sex and in fact, she wanted there to be such because she wished to have a child. It seems to me that this is very much one of the areas that section 41 and the shield has been engaged for. In my judgment, its purpose or main purpose is to pursue a line of questioning which would impugn the credibility or potentially impugn the credibility of the witness and that is why it is being sought."
Discussion and disposal