Feb-2015-s.41-handout-PMQC

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Western Circuit RASSO Course 28 February 2015 Section 41 YJCE Act 1999 – Philip Mott QC even if sent to the defendant by her, have any relevance to whether she had sexual intercourse with him in a park 8 months later? In any event, his defence was not reasonable belief in consent. He denied sexual intercourse. (3) At best, this was evidence supporting the assertion that this was a false complaint motivated by malice or rejection. According to R v DB [2012] EWCA Crim 1235 (decided before but not cited to the court in R v T) motive is not a “relevant issue in the case” as defined by s.42(1)(a) [see paragraph 32 below]. (4) If it was not a “relevant issue in the case”, s.41(3) could not apply and the court could not grant leave [s.41(2)(a)]. (5) If it was a relevant issue, it was not an issue of consent, so s.41(3)(a) applied. Leave would have to be granted, but only if a conclusion of the jury on a relevant issue (such as guilt) might thereby be rendered unsafe [s.41(2)(b)]. (6) As to Facebook, the importance of this decision is the acknowledgement that defendants can readily obtain images and manipulate them, as well as making false entries on Facebook pages. See also the discussion in Ormerod and O’Floinn “Social networking material as criminal evidence” [2012] Crim LR 486. (7) As a footnote, after the adjournment the appeal was later abandoned by the appellant. False complaints 11. False complaints are not sexual behaviour. Being false, no sexual behaviour actually took place as alleged in the complaint. The difficulty is in judging whether there is sufficient evidence that a complaint was false for it to go to the jury as such. 12. S.41 will of course apply to the reverse situation, where the complainant has falsely denied a true previous sexual experience. 13. Where the defendant seeks to adduce evidence or ask questions about an allegedly false complaint, he must seek a ruling from the judge that s.41 does not apply, and also provide a proper evidential basis for the allegation [R v T and H [2001] EWCA Crim 1877]. (1) There must have been an earlier complaint of a sexual nature. In R v Lefeuvre [2011] EWCA Crim 1253 there were allegedly false complaints about the theft of a mobile phone on two occasions, once when she woke up to find herself naked, but neither of these involved a complaint of sexual assault. On another occasion someone else complained of an assault in her hall of residence, but she made no complaint. The final incident was a complaint of a stranger entering her flat and sexually assaulting her, but there was no evidence that this was false. In R v Callaghan [2012] EWCA Crim 1669 the complainant had accused her former husband of assaulting her whilst she was asleep, but when he called the police she refused to make a complaint. (2) The earlier complaint must have been false. In R v Winter [2008] EWCA Crim 3 the complainant had told the police that she had a close and loving relationship
Western Circuit RASSO Course 28 February 2015 Section 41 YJCE Act 1999 – Philip Mott QC with her partner M, but the following day returned to the police station to explain that she was also involved in an active sexual relationship with another man S. The Court of Appeal (Longmore LJ, Beatson & Blake JJ) concluded that the first statement that she was devoted to M was not a lie merely because she had a sexual relationship with S, but even if it was a lie it was short-lived and insignificant. (3) There must be a proper evidential basis for the allegation of falsity. The test is whether falsity is a reasonable inference to draw, no higher than that [R v E [2005] Crim LR 227]. The defence advocate cannot seek leave on the basis that the evidence will come from questioning the complainant, in the hope of showing that the complaint was false [R v Abdelrahhman [2005] EWCA Crim 1367]. Mere inconsistencies are not enough, nor is the fact that the police or CPS decided that there was insufficient evidence to prosecute [R v RD [2009] EWCA Crim 2137]. (4) Lack of cooperation with the police may provide a proper evidential basis for the allegation of falsity, if the circumstances are stark enough. R v Garaxo [2005] EWCA Crim 1170 is the high point from a defendant’s viewpoint, and was said in R v V [2006] EWCA Crim 1901 to have been decided on particular facts. R v AM [2009] EWCA Crim 618 is the best guide, concerning a case where an allegation of rape was made only after a housing officer told the complainant that it would not assist her to be moved unless she reported it to the police. She told the police that she was only reporting the incident to get rehoused, she did not want it investigated or taken further, and she would not support a prosecution or attend court. She said this was because she was scared of repercussions. The Court of Appeal stressed that such decisions are fact-sensitive, but “the relevant question is whether that material is capable of leading to a conclusion that the previous complaint was false”. In that case it was. In R v Hilly [2014] EWCA Crim 1614 even four separate unpursued allegations of sexual abuse against four different men was insufficient to raise an inference that they were false. (5) A previous failed prosecution does not provide evidence of falsity. All it means is that the Crown did not satisfy the criminal burden and standard of proof [R v BD [2007] EWCA Crim 4; R v Davarifar [2009] EWCA Crim 2294]. (6) The allegation will also be one of bad character, so the provisions of s.100 of the Criminal Justice Act 2003 will apply. (7) Care must be taken to ensure that questioning does not become protracted and lead to the exploration of irrelevant material [R v Lee B [2005] EWCA Crim 3146]. The procedural requirements and powers should be used to prevent this [see below] Issue of Consent (Steps 3, 4, 5 & 6) Not an issue of consent (Step 3) 14. Reasonable belief in consent is not an issue of consent [s.42(1)(b)]. Such a belief must have existed at the time of the alleged offence. Unless the defendant knew about the sexual behaviour of the complainant at that time, it is irrelevant to his state of mind.
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Feb-2015-s.41-handout-PMQC

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