Todd v Rex ([2025] EWCA Crim 883): Re-affirming the “Relevant Similarity & Temporal Nexus” Test under s.41(3)(c) Youth Justice and Criminal Evidence Act 1999

1. Introduction

Court of Appeal (Criminal Division), 11 July 2025 — Lord Justice Jeremy Baker, Vice-President, Criminal Division.

This appeal, brought by Christopher Marley (“the appellant”) and Darren Todd (“the applicant”), stemmed from multiple convictions for rape, assault by penetration, coercive behaviour and other offences. The appeal raised two principal issues:

• Whether the trial judge erred in refusing defence cross-examination of the principal complainant (C1) about her alleged prior sexual behaviour, pursuant to s.41 Youth Justice and Criminal Evidence Act 1999 (“YJCEA”).
• Whether the indeterminate sentencing structure (extended sentences under the Sentencing Act 2020) and their lengths were lawful and proportionate.

While Todd’s applications were ultimately dismissed, the judgment delivers significant clarification on when and how evidence of a complainant’s previous sexual behaviour may be admitted, emphasising the twin requirements of relevant similarity and a sufficient chronological nexus. It also tidies up the mechanics of extended sentences where statutory “gateways” were inadvertently overlooked.

2. Summary of the Judgment

The Court of Appeal:

• Dismissed Marley’s appeal against conviction, holding that the trial judge correctly excluded cross-examination about three alleged “fishnet pole-dancing” incidents and an alleged subsequent “threesome” with a co-accused, because they lacked the requisite probative similarity under s.41(3)(c) YJCEA.
• Refused Marley’s additional grounds seeking to rely on s.41(3)(a) and s.41(5) YJCEA, finding them misconceived in light of the chronology and evidential context.
• Allowed in part Marley’s sentence appeal by quashing eight extended sentences that were ultra vires under s.280 Sentencing Act 2020, substituting equivalent determinate terms. The overall extended sentence of 30 years (25 custody + 5 licence) was otherwise upheld.
• Refused all of Todd’s renewed applications to appeal conviction and sentence, finding no arguable grounds or admissible fresh evidence.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

1. R v Guthrie (Germaine) [2016] EWCA Crim 1633
   – Provided the modern précis of the s.41(3)(c) gateway, especially that “striking similarity” is not required but relevant similarity is, and that the purpose must be genuinely probative, not credibility-assailing.
2. R v A (No 2) [2002] 1 AC 45
   – The House of Lords’ seminal articulation that s.41 must be read compatibly with Article 6 ECHR, but that similarity must still be such that coincidence is implausible.
3. R v M (M) [2011] EWCA Crim 129 & R v Hamadi [2007] EWCA Crim 3048
   – Both stressed the need for a “chronological nexus” between earlier sexual behaviour and the instant allegation, and highlighted that coincidence remains a high hurdle.
4. R v Wilson & others [2024] EWCA Crim 1514
   – Recently advised courts to test admissibility against whether the disputed evidence has “substantial probative value… of substantial importance” so that refusing it might render a verdict unsafe (s.41(2)(b)).
   – Todd v Rex is the first reported case expressly embracing that Wilson guidance.

3.2 The Court’s Legal Reasoning

Applying that framework, LJ Baker reasoned as follows:

• Fishnet pole-dancing episodes: Even if true, they only proved that C1 sometimes danced provocatively; that did not logically advance the issues of consent or reasonable belief in consent concerning penetrative intercourse. The link between dancing and consent to sex was branded “an affront” to the protective purpose of s.41.
• Alleged later ‘threesome’: Though there were superficial similarities (drink, same house, three participants), the later incident differed materially (masturbation, not penetration), occurred years later, and lacked the pole-dancing element alleged in the earlier occasion. The dissimilarities and time gap made coincidence a plausible explanation; therefore similarity threshold failed.
• s.41(2)(b) override: Even if similarity were arguable, the prosecution case (especially the Facebook admission) was so strong that excluding the evidence could not render the verdict unsafe.
• Alternative gateways (s.41(3)(a) & s.41(5)) were rejected because the defence sought essentially to undermine C1’s credibility, which Parliament has purposely fenced off unless stringent exceptions are met.

3.3 Impact on Future Litigation

Todd v Rex crystallises and slightly elevates the evidential bar for defendants attempting to deploy prior sexual behaviour:

1. Chronology now decisive: Post-incident behaviour will rarely satisfy s.41(3)(c) unless overwhelming similarity exists. Defence teams must be prepared to explain why later events still hold probative value for earlier consent.
2. No “dance-to-sex inference”: The ruling pours cold water on arguments that provocative dancing or attire can alone imply sexual consent or reasonable belief thereof.
3. Wilson integration: By explicitly using the “substantial probative value” yardstick, the judgment imports Wilson’s analytical structure into everyday s.41 practice.
4. Sentencing housekeeping: Practitioners must ensure that extended sentences on each count comply with s.280 SA 2020 (“earlier offence” or “4-year term” condition). Failure creates appealable illegality even when overall sentence length is appropriate.

4. Complex Concepts Simplified

• Section 41 YJCEA 1999 – A statute that generally bans questions about a complainant’s past sexual behaviour in sexual offence trials, subject to tightly controlled exceptions. Its aim is to prevent victim-blaming and improper inferences.
• s.41(3)(c) Gateway – Allows such questions only if they relate to another incident that is “so similar” to the alleged offence that coincidence is implausible, therefore making the evidence genuinely probative.
• ‘Relevant Similarity’ vs ‘Striking Similarity’ – Courts no longer demand “striking” likeness (a pre-2001 buzz-phrase) but still insist on a meaningful, non-coincidental resemblance.
• Extended Sentence – A hybrid sentence comprising a custodial term plus an extended period on licence for dangerous offenders (Sentencing Act 2020, s.279). Certain statutory conditions must be met count-by-count (s.280).
• Section 23 Criminal Appeal Act 1968 – Governs the admission of fresh evidence on appeal; proposed evidence must be capable of belief, afford a ground of appeal, and explain why it wasn’t adduced below.

5. Conclusion

Todd v Rex provides a meticulous application of the s.41 regime, reaffirming that the protection against irrelevant or prejudicial sexual-history evidence remains robust. The judgment tightens the practical meaning of “similarity” and “chronological nexus”, aligning them with 2024’s Wilson guidance on substantial probative value. Simultaneously, it serves as a cautionary tale for sentencing judges to double-check statutory gateways when imposing extended sentences.

Practitioners should draw three core lessons:

1. When seeking s.41(3)(c) leave, be prepared to demonstrate both genuine probative similarity and close temporal proximity.
2. Evidential narratives suggesting that provocative behaviour equates to consent will almost invariably fail the s.41 safeguards.
3. Sentencing errors—even technical ones—will be corrected, but they will not necessarily lead to a reduction of the overall sentence if the totality is still justified.

In sum, Todd v Rex consolidates the Court of Appeal’s recent trajectory towards a stricter, principle-driven interpretation of the complainant’s sexual-history exclusionary rule, while cleaning up sentencing mechanics to ensure statutory compliance.