ISSUE 5 2008 - Sweet & Maxwell

396 Case & Comment [2008]
false statements in the past about both sexual and non-sexual matters. The trial
judge wrongly concluded that the questions were questions about the victim’s sexual
behaviour within s.42(1)(c), and inadmissible under s.41(4). On appeal, Keene L.J.
cautioned that where necessary courts would need to adopt a restrictive interpretation
of s.41(4) if it would otherwise lead to the exclusion of relevant and significant evidence.
The Court of Appeal emphasised that even if s.41(4) applied, it was necessary to
decide whether the questions were about any sexual behaviour of the complainant. It
was observed that:
‘‘. ..[N]ormally questions or evidence about false statements in the past by a
complainant about sexual assaults ...are not ones ‘about’ any sexual behaviour
of the complainant. They relate not to her sexual behaviour but to her statements
in the past ...the questions sought to be asked in both the present cases were
not automatically excluded by s.41, even if they are seen as going principally to
credibility.’’ ([2001] EWCA Crim 1877 at [33] and [34])
Establishing the earlier allegations were false. Acknowledging the potential dangers,
the court in T indicated that it was open to a judge to guard against abuse of the
system, laying down a principle that has since been followed in this area. The defence
need to seek a ruling from the judge that s.41 does not exclude the questions about
false allegations. The defence must also have a proper evidential basis for asserting
that any such previous statement was (a) made and (b) untrue. What constitutes a
proper evidential basis is a difficult issue, and several judges have expressed real
concerns about the danger of disputes on collateral matters. For example, in E (Dennis
Andrew) [2004] EWCA Crim 1313; [2005] Crim L.R. 227, E was denied leave to
cross-examine victims, aged six and four, about allegations they had made 15 months
after the trial. Victim 1 had alleged abuse against a number of people, including her
mother, an aunt and uncle, and another aunt and her son as well as physical abuse
by an aunt and two others. Victim 2 alleged physical abuse on the part of some of
the people mentioned by Victim 1 and by others. E’s argument was that it was wholly
implausible that the children would have been abused by so many people and that the
allegations were therefore almost certainly a fabrication or a fantasy. The Court of
Appeal concluded that the evidential foundation had not been laid because none of the
later allegations had been investigated. Compare Garaxo [2005] EWCA Crim 1170;
[2005] Crim. L.R. 883 (refusal to assist police and reference by victim to getting a
crime reference number for the ‘‘Social’’ capable of implying an improper motive for
making the earlier allegation). Some commentators have argued that this decision
is unduly permissive. In her comment on the case [2005] Crim. L.R. 883 at 884,
Louise Ellison questioned the decision, doubting whether an inference of falsehood
can safely be drawn from the mere fact of complainant withdrawal. It is probably the
case that Garaxo marks the high point of admissibility. However, it can be argued that
there was more in the case than a mere unwillingness to proceed. The requirement
to provide an evidential foundation does not necessitate that all alternative inferences
be eliminated, so that the only inference possible is that the allegation is false, merely
that falsity is a reasonable inference to draw. In V [2006] EWCA Crim 1901, which
involved the admissibility of three allegations of a sexual and non-sexual nature, the
Court of Appeal regarded Garaxo as decided on its particular facts, and that ‘‘a failure
to cooperate [with the police] may or may not justify a conclusion that an allegation is
false, depending on the circumstances’’.
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