R v YAW [2025] EWCA Crim 1143: Proper Evidential Basis, Not Mere Possibility — Clarifying the s.100 CJA 2003 Threshold and Appellate Deference on Alleged Prior False Complaints

Introduction

In R v YAW [2025] EWCA Crim 1143, the Court of Appeal (Criminal Division), presided over by the Vice-President, dismissed an appeal against conviction for rape where the key appellate issue concerned the admissibility of evidence described as a prior false allegation by the complainant. The case revisits and consolidates the law on non-defendant bad character evidence under section 100 of the Criminal Justice Act 2003 (CJA 2003), its relationship with section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), and the standard of “proper evidential basis” required before juries may be invited to consider that a complainant previously made a false complaint.

The appellant (anonymised as “YAW” to avoid identification of his daughter “C” in compliance with the Sexual Offences (Amendment) Act 1992) admitted intercourse contrary to section 64 of the Sexual Offences Act 2003 (sex with an adult relative) but denied rape, contending consent. The defence sought to cross-examine on a 2018 police occurrence log relating to C’s complaint of rape by “X” (the father of her child), arguing it showed falsity. The trial judge refused the application under s.100 CJA 2003. On appeal, represented by Ms White, the defence challenged that refusal on two grounds. The Crown, represented by Mr Wing, opposed the appeal.

Summary of the Judgment

The Court of Appeal dismissed the appeal. Reaffirming and endorsing the recent seven-point synthesis in R v Hurley [2025] EWCA Crim 642, the Court held:

• The proposed evidence of a prior false complaint is non-defendant bad character and falls to be determined under s.100 CJA 2003 unless the questioning is “about” sexual behaviour engaging s.41 YJCEA 1999.
• Before s.41 can be avoided, there must be a “proper evidential basis” for falsity (R v RD; R v AM), which need not be a “strong factual foundation,” but must be real material from which a jury could properly conclude the previous complaint was false.
• Trial judges should neither set the bar too high nor too low. Mere possibility that a jury “might” find falsity is not enough without a proper evidential basis.
• Appellate courts will accord “considerable deference” to the trial judge’s evaluative assessment (R v Conn).

Applying those principles, the Court upheld the refusal to admit the 2018 occurrence log. The log reflected inconsistent accounts and a reported remark suggesting anger (“I’m going to fuck him over”), but contained no admission of falsity by C, no clear independent proof of falsity, and no investigative result from X. In the domestic/relationship context described, inconsistencies, delay, and rancour are common features of true complaints; the log was equivocal and incapable of properly founding a jury conclusion of falsity. The judge’s alternative conclusion (that even if admissible, the material lacked substantial probative value given the audio recording and immediate reporting in the instant case) did not require determination. The conviction was safe; the appeal was dismissed.

Analysis

Precedents and Authorities Cited

• R v Hurley [2025] EWCA Crim 642: The Court endorsed Hurley’s seven propositions governing prior false complaint evidence:
  • Such material is non-defendant bad character (CJA 2003, s.100; “misconduct” under s.112(1)).
  • Admissibility requires “substantial probative value” on an issue of substantial importance (s.100(1)(b)).
  • Section 41 YJCEA is engaged if the evidence is “about” sexual behaviour; if it is about “what was said” (i.e., the alleged false assertion), s.41 may not be engaged. If s.41 is engaged, s.41(4) will often bar the evidence.
  • To avoid s.41 and bring the issue under s.100, there must be a “proper evidential basis” that the earlier complaint was false (R v RD; R v AM).
  • The evidential basis can be less than a strong foundation, but it still must have substantial probative value and importance overall.
  • Decisions are fact-specific; no exhaustive taxonomy is possible or desirable.
  • The judge is not exercising a discretion but conducting an evaluative judgment as to evidential quality.
• R v AM [2009] EWCA Crim 618 and R v RD [2009] EWCA Crim 2137:
  • “Proper evidential basis” means there must be some material from which a jury could properly conclude the complaint was false. It is “less than a strong factual foundation” but more than speculation.
• R v Conn [2018] EWCA Crim 1752:
  • Appellate courts grant “considerable deference” to the trial judge’s evaluation, given the judge’s “feel” for the case and the live context of the application.
• Statutory framework:
  • CJA 2003, s.100 and s.112(1): non-defendant bad character and “misconduct.”
  • YJCEA 1999, s.41: restrictions on questioning about a complainant’s sexual behaviour.
  • Sexual Offences Act 2003, s.64: offence of intercourse with an adult relative.
  • Sexual Offences (Amendment) Act 1992: automatic lifelong anonymity for complainants; in familial cases, anonymising a defendant may be necessary to avoid jigsaw identification.

Legal Reasoning in YAW

The Court’s reasoning followed an orderly pathway through the modern structure for alleged prior false complaints.

1. Correct legal route (s.100, not s.41):

   As both sides accepted, the application was to be considered under s.100 CJA 2003: the defence wished to adduce evidence that the complainant had previously made a false complaint (which, if false, is “misconduct”). The focus was on what C said in 2018, not her sexual behaviour, so s.41 was not engaged in this instance.

2. The “proper evidential basis” gateway:

   The trial judge had to decide whether there was material from which a jury could properly conclude that C’s 2018 complaint against X was false. The evidence was a police occurrence log reporting:

   • Inconsistencies in C’s accounts (type of penetration; date/location; initial denials to family).
   • A remark reported by a witness (“R”) that C said she would “fuck him over” after an argument with X.
   • C’s declining emergency contraception at a SARC.

   The Court agreed with the judge’s nuanced approach: in an allegedly abusive relationship context involving a young mother, inconsistency, delay, and anger are common and cannot, without more, justify a conclusion of falsity. The remark to R was equivocal: it could be read as vindictive fabrication or as determination to report a real crime. Crucially, the log:

   • Contained no admission of falsity by C,
   • Contained no demonstrable impossibility in the allegation, and
   • Did not record any testing of the allegation against X or outcomes that undermined C’s account.

   On that material, the “falsity” thesis was circular: the same facts could equally support truth or falsity. The Court emphasised that saying “a jury might” reach a finding is not enough if there is no proper evidential basis to invite them to do so.

3. Caution about satellite issues and collateral credibility:

   The Court underscored a practical trial-management point. Cross-examination on prior false complaints is quintessentially “as to credit” and on a collateral issue. Ordinarily, the witness’s answer is final; extrinsic contradiction is limited. Courts should be cautious before opening satellite credibility disputes without a real evidential foundation. This caution forms part of the evaluative discipline demanded by s.100.

4. Deference to the trial judge’s evaluation:

   Echoing R v Conn, the Court stressed the importance of the trial judge’s “feel” for the case and the premium on his evaluative judgment. On these facts, the refusal to admit the evidence was plainly within the permissible evaluative range. Ground 1 failed.

5. Substantial probative value (s.100(1)(b)) — an alternative holding:

   Although not necessary to decide given the failure of Ground 1, the Court recorded the judge’s further view that, even if a proper basis were shown, the prior complaint would not have had “substantial probative value” on the live issues of consent and reasonable belief in consent in a wholly different factual scenario (father–daughter incest with an audio recording of repeated refusals, immediate complaint, and admission of intercourse). This observation reinforces that s.100 demands enhanced relevance of a high order.

6. Anonymity practice point:

   Because naming the appellant-father would inevitably identify the complainant-daughter in contravention of the Sexual Offences (Amendment) Act 1992, the Court directed use of the anonymised designation “YAW” for the appellant. This is a salient reminder that familial relationships may require anonymisation of defendants to protect complainant anonymity.

Impact and Significance

YAW refines the post-Hurley landscape. The key practical and doctrinal consequences are:

• Higher discipline at the “gateway”:

  Defence applications relying on equivocal materials (especially hearsay summaries in occurrence logs, inconsistent recollections, or expressions of anger) will struggle to clear the “proper evidential basis” threshold. Counsel will need tangible, falsity-directed evidence: e.g., a clear admission of fabrication, forensic or digital proof of impossibility, or independent evidence contradicting the allegation.

• “A jury might” is insufficient:

  The Court’s formulation — that it is not enough merely to say “a jury might” find falsity — will be cited in future to resist speculative s.100 applications. Judges must assess whether a jury could properly reach that conclusion on the material, not whether it is theoretically possible.

• Deference to trial judges:

  Appellate courts will be slow to interfere with a well-directed, fact-specific s.100 evaluation. This stabilises first-instance rulings and disincentivises marginal appeals.

• Context matters:

  YAW emphasises the relational and situational features of past complaints. In domestic/partner settings, inconsistency and delayed reportage are well-recognised phenomena and not strong indicia of falsity.

• S.41 interface stays tight:

  Hurley’s taxonomy, endorsed in YAW, continues to guide practitioners: only where the focus is on “what was said” (and not sexual behaviour) will s.41 be avoided. If s.41 is triggered, s.41(4) will often bar the evidence altogether.

• Collateral issue caution:

  The reminder that the witness’s answer on collateral credit is final is critical. Introducing prior-complaint litigation risks unfair trials by distraction; judges will be vigilant in excluding such satellite disputes without a robust foundation.

• Anonymity in familial cases:

  The Court’s direction to anonymise the appellant to preserve the complainant’s anonymity offers a clear practice pointer for listings and reporting in family-linked sexual offences.

Complex Concepts Simplified

• Non-defendant bad character (s.100 CJA 2003): Evidence about someone other than the defendant showing “misconduct” (e.g., making a false allegation) can only be admitted if it strongly helps prove something important in the case. It’s an “enhanced relevance” test.
• Substantial probative value: Not just marginal relevance. The evidence must meaningfully move the needle on a crucial issue (here, the complainant’s credibility on consent) in the context of the case as a whole.
• Proper evidential basis: There must be real, specific material from which a jury could properly conclude the earlier complaint was false. It’s less than “proof” but more than speculation or inference from ordinary features (like inconsistency or delay).
• Collateral issue / finality rule: When cross-examining a witness purely on credibility (not the main facts at issue), the law typically prevents calling additional evidence to contradict the witness’s answer. This avoids mini-trials on side issues.
• Section 41 YJCEA 1999: Strictly limits questioning about a complainant’s sexual behaviour. If the proposed “false complaint” evidence is, in truth, about sexual behaviour, s.41 may bar it, especially under s.41(4).
• “Jigsaw identification” and anonymity: In sexual offence cases, even naming someone linked to the complainant (such as a parent) can, when combined with other information, identify the complainant. Courts may anonymise defendants to protect the complainant’s statutory anonymity.

Practice Notes and Examples

What might amount to a “proper evidential basis” for falsity?

• A recorded or written recantation by the complainant admitting the previous allegation was untrue.
• Objective impossibility (e.g., complainant’s geolocation/CCTV places her elsewhere at the alleged time; medical findings incompatible with the alleged act).
• Independent witnesses or data directly contradicting the core of the allegation (not merely peripheral inconsistencies).
• Findings from prior proceedings or investigations clearly demonstrating falsity (with caution: a decision “not to proceed” is not proof of falsity).

What will usually be insufficient, without more?

• Inconsistencies in accounts typical of trauma or relational volatility (date/location variations, delay in reporting, expressions of anger or desire for retribution).
• Hearsay summaries in occurrence logs without primary-source verification or outcomes of inquiries.
• Speculative inferences that a prior compensation claim indicates propensity to fabricate.

When might s.100 fail even if falsity is arguable?

• When the past allegation is factually dissimilar to the indictment events, reducing any real probative force on the live issues.
• When the Crown’s case includes powerful contemporaneous evidence (e.g., audio recording of non-consent and immediate complaint) that would not be materially undermined by a disputed historical episode.

Conclusion

R v YAW crystallises two central messages in the admissibility of alleged prior false complaints. First, “proper evidential basis” is a real gateway: it requires concrete material from which a jury could properly find falsity, not merely the possibility they might do so. Second, appellate deference will sustain a trial judge’s fact-sensitive evaluation where the judge has directed themselves correctly and assessed the material in context, with caution against satellite credibility disputes.

The decision consolidates the Hurley framework, provides sharper guidance on the evidential threshold and the management of collateral issues, and underlines the need to scrutinise the nature of the proposed evidence (s.100 vs s.41). It also offers practical direction on preserving complainant anonymity in familial cases by anonymising defendants where necessary. As such, YAW is likely to be an influential authority shaping both the making and the adjudication of s.100 applications in sexual offence trials for years to come.