Factual and Procedural Background
On 15th April 2002, in the Crown Court at The City before Judge Benson, the appellants, Defendant A and Defendant B, were convicted of multiple counts of indecency with a child and indecent assault. Defendant A was sentenced to concurrent imprisonment terms of 2 years on counts 1 to 3 and 4 years on counts 4 to 6, to run concurrently. Defendant B received a concurrent sentence of 15 months on counts 2 and 3. The appellants appealed their convictions with leave of the single judge.
Defendant A and Defendant B began a relationship circa 1991 and lived together intermittently. Defendant B had a daughter, Child E, born in 1988. The appellants had twins, Child N (female) and Child J (male), born in 1993, and another son, Child S, born in 1995. The children were taken into care intermittently between 1996 and 1997 and removed from the appellants' care again in 1998 due to welfare concerns unrelated to sexual allegations. Since October 1998, the children have not lived with the appellants and had no unsupervised access. In 1999, the twins and Child S were placed with foster parents, Company A and Company B. Plans for adoption failed in 2000.
The charges related to alleged offences committed between October 1993 and October 1998. Count 1 concerned Child E and is not appealed. Counts 2 and 3 involved indecency towards Children J and N jointly by the appellants. Counts 4 to 6 involved indecent assault by Defendant A on Children N and J, including encouraging J to assault N and simulating intercourse with N.
The allegations arose from disclosures made by Children J and N in December 2000 and Child E in January 2001. These were initially reported to the foster parents and followed by video interviews of Children J and N in December 2000 and Child E in January 2001. The Crown sought to rely on edited versions of the first interviews, excluding references to abuse by others, and did not propose to use the second interviews. The appellants wished to present the full range of complaints and all video interviews to the jury.
Before trial, the appellants’ counsel requested that the jury be informed of all complaints made by Children J and N, either through evidence or cross-examination. The trial judge refused to admit the additional material as evidence and indicated cross-examination on these matters would require leave. The judge was concerned about the difficulties for all parties and the conduct of the trial if other complaints were explored. Limited admissions were agreed and some prior inconsistent statements were put to the complainants during the trial.
Legal Issues Presented
- Whether evidence of other complaints made by the complainants about sexual abuse by persons other than the appellants was admissible.
- Whether cross-examination regarding other complaints should have been permitted without leave under section 41 of the Youth Justice and Criminal Evidence Act 1999.
- Whether the trial was unfair and the verdict unsafe due to restrictions on cross-examination about other complaints.
- The scope and application of section 41 of the Youth Justice and Criminal Evidence Act 1999 in relation to evidence and questioning about complainants’ sexual behaviour or other sexual experience.
Arguments of the Parties
Appellants' Arguments
- Section 41 of the Youth Justice and Criminal Evidence Act 1999 was irrelevant to the admissibility of evidence concerning other complaints.
- Evidence of other complaints was admissible and should have been admitted.
- Cross-examination regarding other complaints should have been permitted without requiring leave.
- The trial was unfair and the verdict unsafe because the jury received only a "sanitised" version of the evidence.
- The Crown could have called the foster carer or made further admissions to facilitate such cross-examination.
Respondent's Arguments
- The Crown could not adduce evidence about complaints against other persons as it was irrelevant and prejudicial.
- Section 41 applied, requiring leave for any evidence or questioning about complainants’ sexual behaviour.
- Allowing such evidence or questioning would complicate the trial and risk unfairness to all parties.
- Cross-examination was permitted on relevant inconsistencies and failure to mention allegations, but not on the full course of other complaints.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v. S [1992] Crim LR 307 |
Distinction between questioning about sexual behaviour and questioning about other complaints; limits on cross-examination. |
Confirmed the need for leave under s.41 and the difficulty in challenging complainants on past sexual behaviour. |
| R v. Todd (No. 96/7540/W4; 21/3/97) |
Similar principles regarding admissibility of evidence and cross-examination about sexual behaviour and other complaints. |
Supported the application of s.41 and discretion of the trial judge. |
| R v. Robinson (No. 98/5243/X3; 7/5/99) |
Admissibility of evidence about sexual behaviour and other complaints. |
Reinforced the limitations on questioning about complainants’ sexual history. |
| R v. T and H [2001] EWCA Crim 1877 |
Interpretation of s.41; distinction between questions about sexual behaviour and other complaints; necessity of evidential basis for alleging false complaints. |
Confirmed judge’s discretion to control cross-examination and emphasized protection of complainants’ sexual reputation. |
| R v. P.B. [2001] EWCA Crim 3042 |
Application of s.41 and limits on cross-examination about sexual behaviour. |
Supported the controlled approach to evidence and questioning about complainants’ sexual history. |
| R v. Funderburk (1990) 90 CAR 466 |
Scope of admissibility of inconsistent statements under ss.4 and 5 of the Criminal Procedure Act 1865; distinction between matters going to issue and matters going to credit. |
Clarified that evidence must be sufficiently relevant and related to the indictment; cross-examination should be limited to avoid distraction from main issues. |
Court's Reasoning and Analysis
The court began by accepting the trial judge’s view that the Crown could not adduce evidence about complaints made against other persons as part of its case because such evidence was irrelevant and prejudicial. The key legal provision was section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts evidence and questioning about a complainant’s sexual behaviour unless leave is granted by the court. The court acknowledged that leave was required for any cross-examination on such matters and agreed with the judge’s discretion in controlling the scope of questioning.
The court reviewed relevant authorities, notably R v. T and H, which emphasized the importance of protecting complainants’ sexual reputation and requiring a proper evidential basis before allowing questions about previous complaints alleged to be false. The court noted that in the present case, there was no basis to suggest that the other complaints were false, and thus cross-examination on these matters fell within the restrictions of section 41.
The court considered whether evidence or cross-examination about other complaints could be admitted as inconsistent statements under the Criminal Procedure Act 1865. It concluded that such evidence must relate directly to the subject matter of the indictment, which was not the case here, as the Crown did not rely on the other complaints. Consequently, the trial judge was justified in excluding such evidence to keep the trial focused and manageable.
Even assuming section 41 did not apply, the court found that the appellants would have been unable to adduce evidence disproving the other complaints, as the complainants had not denied them. The court observed that the jury was made aware of the existence of other complaints through formal admissions and was presented with relevant inconsistencies and cross-examination on the main charges. The court found no reasonable possibility that permitting cross-examination on the full range of other complaints would have affected the jury’s verdict on the charges before them.
The court also noted the practical difficulties and potential confusion that would have arisen from allowing extensive cross-examination regarding other complaints, especially given the young age of the complainants and the complexity of their accounts.
Holding and Implications
The appeals are dismissed.
The court upheld the trial judge’s exercise of discretion under section 41 of the Youth Justice and Criminal Evidence Act 1999 to restrict evidence and cross-examination concerning other complaints of sexual abuse. It concluded that admitting such evidence or allowing unrestricted cross-examination would have been inappropriate and unlikely to affect the safety of the verdicts. The decision directly affirms the convictions of the appellants and does not establish new precedent beyond confirming the proper application of section 41 and related evidential principles in such contexts.