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 15. Note the impact of the SOA 2003, which now requires such a belief to be reasonable, as well as honestly held (which was the test at the time s.41 was passed). Honest belief and reasonable belief are very different things. In R v Bahador [2005] EWCA Crim 396 the defendant sought to rely on the fact that the complainant had performed at a club when she bared her breast and simulated oral sex with a man. That could not reasonably have caused him to believe that she would consent to intercourse with him after she left the club. In R v Harrison [2006] EWCA Crim 1543 the defendant was rightly excluded from asking about the complainant having consensual sex with another man she had met with the defendant in a club and gone with to a house. Three hours later the complainant woke up to find the defendant digitally penetrating her. The earlier consensual intercourse with another man could not have given rise to a reasonable belief that she would consent to his actions whilst she was asleep. 16. An allegation that the complainant is motivated by malice is not an issue of consent. Thus evidence of a later consensual relationship with the defendant which led to a desire for revenge would be both relevant and admissible [R v F [2005] 2 Cr App R 13]. 17. An allegation that a young complainant’s detailed account could have come from other sexual experiences is not an issue of consent. Realistically, it should only arise with very young complainants, where the prosecution case is that the allegations must be true by reason of a level of detail not to be expected from the imagination of someone of that age. It does not arise where a 14 year old gives evidence of masturbation and normal sexual conduct, as it is “almost inevitable” that such information would be known by that age [R v MF [2005] EWCA Crim 3376]. At or about the same time (Step 4) 18. The window of time is likely to be fairly limited, as a complainant’s responses will vary from occasion to occasion. Consent is not given once and for all time. Equally, behaviour with others is unlikely to be relevant and therefore admissible. Such decisions will be fact-sensitive. 19. R v Mukadi [2004] Crim LR 373 is a difficult case. The Court of Appeal (Mantell LJ, Sir Edwin Jowett & Recorder of Manchester) decided that cross-examination should have been allowed about an incident earlier in the same day when the complainant climbed into an expensive car with an older man in Oxford Street, drove to a filling station with him and exchanged phone numbers, because this might have led to the inference that she anticipated that some sexual activity would follow. Quite how this could have been relevant to the issue of consent to intercourse with a different man several hours later, after which she jumped out of a window breaking two wrists and a kneecap, is puzzling! As Professor Di Birch said in the Criminal Law Review commentary [2004] Crim LR 373: “… the suggestion may have been that the complainant’s demeanour was consistent with prostitution – the emphasis on her dress, the dirty interior of the car (mine would not have passed muster with the Court of Appeal either, I fear) and the age of its solitary occupant, together with the business of the exchange of numbers at the filling station, suggest that this was no ordinary romantic encounter. But in the absence of any clear
Western Circuit RASSO Course 28 February 2015 Section 41 YJCE Act 1999 – Philip Mott QC evidence it would seem improper to draw such an inference and then to apply it laterally to the complainant’s relationship with M, who does not appear to have been suggesting that the relationship was a commercial one. What is not permissible is for evidence to be adduced on the basis of ostensible relevance to consent when the real purpose is to discredit the complainant: s.41(4) expressly forbids this tactic. The reasoning employed in the present case appears to draw on a dangerous generalisation about consent as an attitude of mind rather than a choice made on an individualised, perhaps even capricious, basis. To the extent that the real purpose might have been, as the trial judge clearly suspected, to discredit the complainant, the evidence was doubly damned.” It is now generally accepted to be a ‘rogue’ decision. So similar (Step 5) 20. The similarity must be particular and unusual. Going to the same hotel as one visited previously for a one night stand is not enough [R v X [2005] EWCA Crim 2995]. 21. In R v Harris [2009] EWCA Crim 434 the defendant was a homeless man picked up by the complainant and taken back to her flat where they got drunk together. She alleged that he detained her there by threats, assaulted and raped her. Medical records showed that she had a history of casual sex with illegal taxi drivers, drinking alcohol excessively and engaging in risky sexual liaisons. She described a wish to punish herself. She said the notes misrepresented the history she had given medical staff. The defendant was not allowed to adduce this evidence, as it was tantamount to saying that the complainant was a person who had engaged in casual sex in the past and therefore would have been likely to do so with the defendant. The Court of Appeal upheld this decision as being one open to the judge as the primary decision maker. 22. One example of sufficient similarity is R v T [2004] 2 Cr App R 551. Both the event charged and the previous incident involved having sex inside a metal climbing frame in a children’s playground in a rather specific sexual position. The trial judge refused the application for leave, but the Court of Appeal allowed the appeal. The previous incident was 3-4 weeks earlier, but the Court of Appeal said it was probable that there was no requirement that the temporal link should be particularly close. In any event, the application should have been dealt with under s.41(3)(c)(i), not s.41(3)(c)(ii), so that the temporal requirement did not apply. 23. Note that the similarity is to be judged “according to the evidence adduced or to be adduced by or on behalf of the accused” [s.41(3)(c)(i)]. Even if there is no independent evidence in support it should be assumed to be true for the purpose of granting or refusing leave. It is for the jury to assess whether or not it is or may be true, and what weight to give to the evidence.
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Feb-2015-s.41-handout-PMQC

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