Admissibility of Complainant’s False Complaint Evidence: The Interplay of Sections 41 and 100

Introduction

The Court of Appeal’s decision in Hurley R. v [2025] EWCA Crim 642 clarifies how evidence of alleged false complaints made by a complainant against third parties should be treated in a sexual-offence appeal. Michael Hurley, convicted in 2016 of assault by penetration and rape under the Sexual Offences Act 2003, relied on fresh evidence collected by the Criminal Cases Review Commission (CCRC) showing that the complainant (“Y”) had previously—and subsequently—made multiple sexual-offence and domestic-violence complaints that she later retracted or could not prove. The central issues were:

Whether evidence of Y’s false allegations against others was admissible under section 41 of the Youth Justice and Criminal Evidence Act 1999 (restrictions on complainants’ sexual history) or under section 100 of the Criminal Justice Act 2003 (bad character of non-defendants).
Whether the fresh evidence, if admitted, rendered Hurley’s convictions unsafe under the Pendleton test for fresh evidence.

The decision explains the boundary between s. 41 (protecting complainants in sexual-offence trials) and s. 100 (allowing non-defendant bad-character evidence), confirms the “proper evidential basis” threshold for false-complaint material, and applies established fresh-evidence principles (Pendleton; Hunnisett).

Summary of the Judgment

The Court of Appeal unanimously dismissed the appeal. It held that:

Evidence of Y’s prior and later rape complaints against third parties (including her husband) was inadmissible under s. 41 because it amounted to questioning her sexual behaviour and was designed to impugn her credibility.
Evidence of alleged false domestic-violence complaints likewise lacked the “substantial probative value” required by s. 100 and would have been excluded.
Even if that evidence had been admitted, it would not have made Hurley’s convictions unsafe—the Crown case was strong and Y’s account of Hurley’s offences remained consistent and compelling.

Analysis

Precedents Cited

R v Pendleton [2001] UKHL 66 – the leading test for admitting fresh evidence: the Court of Appeal must assess whether new evidence, if before the jury, “might reasonably have affected the decision” (Lord Bingham).
R v Hunnisett [2021] EWCA Crim 265 – reaffirmed Pendleton as the governing principle for CCRC referrals under section 9 Criminal Appeals Act 1995.
BT; MH [2001] EWCA Crim 1877 – distinguished evidence “about a statement” from direct evidence of sexual behaviour under the predecessor to s. 41.
R v RD [2009] EWCA Crim 2137 – established that to cross-examine on a prior alleged sexual complaint, the defence must show a “proper evidential basis” for falsity.
R v AM [2009] EWCA Crim 618 – elaborated that the “proper evidential basis” need not be conclusive but must allow a jury properly to find the earlier complaint false.
R v Gabbai [2019] EWCA Crim 2287 – reaffirmed that the evidential threshold is fact-sensitive but always requires “some material from which it could properly be concluded that the complaint was false.”
R v Wilson [2024] EWCA Crim 1514 – explained the interplay where section 41 gateways overlap with s. 100’s “substantial probative value” test for non-defendant bad character.
R v Cox (1987) 84 Cr App R 132 – under earlier law the Court held leave for cross-examination on false accusations was required if refusal was “unfair,” but the ratio is limited under the more restrictive s. 41 regime.

Legal Reasoning

The court distilled seven propositions (paras 49(i)–(vii)):

Any false complaint of rape against someone other than the defendant is “other reprehensible behaviour” and thus non-defendant bad character under s. 100.
Admissibility under s. 100(1)(b) requires that the evidence have substantial probative value as to a matter in issue—here, Y’s credibility on the rape allegation against Hurley.
If the evidence is “about” the complainant’s sexual behaviour it also engages the strict leave regime of s. 41.
To rely on false-complaint evidence the defendant must show a “proper evidential basis” that the earlier complaint was false (RD; AM).
That basis may be relatively weak but must still carry substantial probative value so as to survive s. 100 or s. 41(2)(b) and s. 41(4).
Whether evidence satisfies these tests is inherently fact-sensitive.
The court’s admissibility role is evaluative, not discretionary: it must decide whether the evidence “is capable” of proving falsity or bearing on credibility.

Applying that framework, the court found:

The 2004 and 2014 GP rape reports showed no admission by Y that they were false, and indeed her own medical records documented their traumatic impact. There was no proper basis on which a jury could find them false, so s. 41(4) barred their admission.
The 2016 and 2018 marital rape allegations involved actual sexual acts; questioning Y’s consent engaged section 41 and would have been excluded (section 41(4)). Even if bare falsity could be shown, the probative value for Y’s credibility on Hurley’s case was too weak to meet s. 100.
Prior and subsequent domestic-violence complaints against her husband were set in a turbulent, abusive relationship and no independent evidence showed they were false. They lacked the “substantial probative value” required by s. 100 and were excluded.
Without that evidence, the fresh evidence application failed at admissibility; and even if it had passed, Y’s consistent disclosures about Hurley’s rape and the strength of the Crown case meant a jury would likely convict again under Pendleton.

Impact

This judgment provides clear guidance on:

The boundary between section 41 (sexual-history restrictions) and section 100 (non-defendant bad character) when false complaints are alleged.
The rigorous requirement for a “proper evidential basis” before cross-examining a complainant on any prior or subsequent false accusation.
The continuing primacy of Pendleton and Hunnisett for assessing safety of conviction on fresh evidence referrals from the CCRC.

Future appellants must show not only that a complainant made prior or subsequent allegations that were retracted, but also adduce material from which a jury could properly conclude those allegations were false—and that they have real, substantial probative value for the issue at trial.

Complex Concepts Simplified

Section 41 YJCEA 1999: Bars questions or evidence about a complainant’s sexual behaviour unless strict conditions are met, chiefly to protect victims from intrusive or impugning cross-examination.
Section 100 CJA 2003: Governs bad-character evidence of non-defendant third parties; it is admissible only if it has “substantial probative value” on an important issue (e.g., the complainant’s credibility).
Proper Evidential Basis: The threshold showing that there is some credible material to support a finding that a prior or later complaint was false (not necessarily conclusive but more than mere suspicion).
Pendleton Test: For fresh evidence appeals: if new evidence, had it been before the jury, “might reasonably have affected” their verdict, then the conviction is unsafe.

Conclusion

R v Hurley confirms that allegations of prior or subsequent false complaints by a complainant in a sexual-offence trial are subject to two overlapping but distinct statutory regimes. If the evidence “relates to” sexual behaviour, section 41’s protective filters apply; otherwise, section 100’s enhanced relevance test governs. Mere retractions or unpursued allegations do not satisfy the “proper evidential basis” for falsity, nor do they carry the “substantial probative value” needed to impugn a complainant’s credibility. Moreover, even admissible evidence must be weighed against the strength and consistency of the complainant’s case. Hurley’s appeal was rightly dismissed, but the court’s detailed analysis offers crucial guidance for defence practitioners and trial judges on the careful handling of false-complaint material in sexual-offence proceedings.