ISSUE 5 2008 - Sweet & Maxwell

Crim. L.R. Rape 397
In their Home Office Online Report 20/2006, Section 41: An Evaluation of
New Legislation Limiting Sexual History Evidence in Rape Trials, Temkin and
Kelly recommend that only ‘‘demonstrably false accusations’’ should be admissible.
According to the Report, attempts to introduce evidence of previous false allegations
constituted one of the most common ways in which sexual history evidence was
admitted. The Report stated that defence barristers sought to introduce such evidence
to undermine the complainant’s credibility and that insufficient attention appeared to
be paid to whether the previous allegations were demonstrably false. The Report also
noted that it was very easy to allege that the complainant had made false or unproven
complaints of rape in the past, and that there was some evidence that barristers and
police officers were keen to find out whether previous complaints had been made to
the police or others and to raise this matter in court. Within the profession there is
some recognition that admissibility of false allegations may sometimes be sought too
readily. In Sexual Offences: Law and Practice (2004) Rook and Ward acknowledge
that:
‘‘. ..[I]t is commonplace for the defence to suggest that a complaint is false if
the matter has not proceeded to trial, even though there may have been many
reasons why the case has been dropped, and the falsity of the complaint has not
been established. In such circumstances, the jury may unfairly draw an adverse
inference against the complainant.’’
However, in noting that the falsity of the complaint ‘‘has not been established’’ they
overstate the requirement.
Lessons from America. Ellison suggested in commenting on Garaxo that US courts
impose a more stringent requirement: that there should be a strong factual foundation
for concluding that the prior complaint is false. In fact, the US position is unclear:
‘‘Notwithstanding the uniformity with which the cases require a preliminary
determination of falsity, courts have varied widely with respect to the standard
of proof required.’’ State of Ohio v Boggs (1992) 588 N.E.2d 813.
For example, in State of Wisconsin v DeSantis (1990) 456 N.W. 2d 600, the Supreme
Court of Wisconsin held that the defendant should produce evidence at the pre-trial
hearing sufficient to support a reasonable person’s finding that the complainant made
prior untruthful allegations. The court concluded that the ‘‘reasonableness standard
strikes the appropriate balance’’ between the competing policies and interests of the
defendant and sexual complainants and is consistent with legislative intent.
Criminal Cases Review Commission. The present case underlines the importance
of the work done by the Commission. It is not the first such case. See also Warren
[2005] EWCA Crim 659 where the investigative work of the CCRC revealed significant
evidence in relation to two false allegations in particular that had not been available
to the defence at the time of the trial as a result of non-disclosure by the Crown.
While the police incident report no-criming one of the earlier incidents in which the
victim’s complaint was demonstrably false was disclosed to the defence, there was
no disclosure of the complainant’s admission that she had fabricated the allegation.
Consequently the defence made no application under s.41 in relation to the incident.
The Court of Appeal concluded that had the evidence of the allegations been before
the jury they might well have arrived at a different verdict and quashed the conviction.
Of course, not all evidence of prior false allegations is as unequivocal or as reliable
as was the evidence in the present case and in Warren. CompareStephenson [2006]
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