REGINA v Conn

Factual and Procedural Background

The applicant was convicted on 18 October 2016 at Kingston upon Thames Crown Court before Her Honour Judge Coello and a jury of three sexual offences: a single offence of indecent assault (count 3) and a single offence of rape (count 5) against complainant AW, and a single offence of rape (count 6) against complainant LS. The offences related to events in 1976 (counts 3 and 5) and 1985 (count 6). The applicant was a well-known music promoter in the 1960s and 1970s. He was sentenced on 21 October 2016 to a total of 15 years imprisonment, with sentences on counts 5 and 6 consecutive to the sentence on count 3.

The applicant renewed his application for leave to appeal against conviction and sentence, as well as seeking an extension of time for the appeal against sentence following refusal by a single judge. Mr Waterman QC, who was not trial counsel, appeared on these applications.

The prosecution case involved detailed allegations by AW and LS of sexual offences committed by the applicant, supported by evidence from their former partners who testified that both women had disclosed the assaults. The defence denied the allegations, asserting fabrication and consensual relationships where applicable. The trial included complex evidentiary issues, including applications concerning cross-examination about previous allegations made by AW against other men.

Legal Issues Presented

1. Whether the trial judge erred in refusing the defence leave to cross-examine complainant AW about previous allegations of sexual assault against other men, specifically regarding the proper evidential basis for asserting that those allegations were false under section 41 and 42 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA).
2. Whether the trial judge misdirected the jury on the legal concepts of consent and submission in relation to the rape charge involving complainant LS.
3. Whether the trial judge failed to properly direct the jury on the applicant's belief in LS's consent.
4. Whether the sentences imposed on counts 5 and 6 were manifestly excessive given the categorisation of offending and the applicant’s age.

Arguments of the Parties

Appellant's Arguments

• The judge applied an incorrect and overly restrictive test in refusing leave to cross-examine AW about previous allegations, requiring too high a threshold ("may well be false") rather than whether there was material capable of founding an inference that the complaints were untrue.
• Even if the correct test was applied, the judge failed to rigorously evaluate the evidence and ignored the vague, unparticularised, and implausible nature of some previous allegations.
• The applicant sought to introduce a new argument that evidence of previous complaints was relevant to issues other than consent and was not intended to impugn AW’s general credibility but to provide context for changes in her behaviour.
• Regarding the summing-up, the judge misdirected the jury by conflating submission with consent and failed to direct the jury properly on the applicant’s belief in LS’s consent.
• The sentences on counts 5 and 6 were manifestly excessive, with the applicant contending that the psychological harm was overstated without medical evidence, and that the offences should have been categorised lower under the Sentencing Council guidelines.

Respondent's Arguments

• The judge correctly applied the legal test requiring a sound evidential basis for asserting falsity of previous complaints, consistent with established case law.
• The judge appropriately evaluated the evidence and gave due consideration to the passage of time and the complainant’s detailed recollections, which supported the truthfulness of the allegations.
• The new argument regarding relevance of previous complaints was inconsistent with the defence case at trial and was effectively an attempt to reframe the defence post-trial.
• The summing-up on consent was adequate and detailed, with no arguable misdirection given the clarity of LS’s evidence of non-consent.
• The sentences were within the appropriate range considering the severity of the offences, the psychological harm suffered by the victims, the applicant’s previous conviction, and his advanced age.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v RD [2009] EWCA Crim 2137	Requirement of a "proper evidential basis" to assert previous complaints were false; distinction between cross-examination about sexual behaviour and previous false complaints.	The court upheld the trial judge’s approach that there must be a sound basis for asserting falsity; rejected defence argument that an inevitable conclusion of falsity suffices without evidential foundation.
R v T; R v H [2002] 1 WLR 632	Application of bad character evidence under section 100(1) of the Criminal Justice Act 2003, including evidence of previous false allegations.	Referenced to support the principle that evidence of previous false allegations is admissible only with a proper evidential basis.
R v AM [2009] EWCA Crim 618	Test for admitting evidence of previous complaints: whether material is capable of founding an inference that the complaint was untrue.	Applicant relied on this precedent to argue the judge applied an overly restrictive test; the court rejected this submission.
R v All-Hilly [2014] 2 Cr App R 530	Trial judge’s evaluation of evidence for leave to cross-examine is a fact-sensitive exercise warranting deference.	The court emphasized the trial judge’s discretion and upheld her evaluation of the evidence as reasonable.
R v Ali [2015] 2 Cr App R 33	Legal principles on consent and submission in sexual offence cases.	The court noted the summing-up was based on Ali but held that any disagreement with Ali’s approach did not give rise to arguable grounds of appeal here.

Court's Reasoning and Analysis

The court began by reaffirming the application of the Sexual Offences (Amendment) Act 1992 to protect the identity of complainants. It then reviewed the facts and procedural history, emphasizing the detailed nature of the allegations and supporting evidence from third parties.

On the key evidentiary issue, the court analyzed the statutory framework under sections 41 and 42 of the YJCEA, which restrict evidence or questioning about a complainant's sexual history, except where leave is granted under strict conditions. The court relied heavily on R v RD to clarify that leave to cross-examine about previous complaints requires a proper evidential basis that those complaints were false, not merely material that might suggest falsity.

The trial judge’s use of the phrase "may well be false" was interpreted as an appropriate threshold reflecting the need for a sound evidential basis. The appellate court rejected the applicant’s submission that the judge applied an overly restrictive test, noting that the judge carefully considered the evidence, including the complainant’s detailed recollections despite the passage of time, and the police investigation’s inconclusive result did not imply falsity.

The court found the applicant’s challenge to the judge’s evaluation to be an attempt to reargue points already considered and rejected, which did not amount to an arguable ground of appeal.

Regarding the new argument that evidence of previous complaints was relevant to issues other than consent and not to impugn general credibility, the court found this inconsistent with the defence case at trial, which was premised on the complainant being a liar and fantasist. The court emphasized that the trial is not a rehearsal and that the defence must present all points at trial to avoid raising new arguments on appeal.

On the summing-up related to consent, the court held that the directions were sufficient, noting that LS’s evidence of non-consent was clear and unambiguous. The court rejected the argument that the judge misdirected the jury by failing to distinguish submission from consent or by omitting to direct on the applicant's honest belief in consent, explaining that the defence case did not raise such an issue.

On sentence, the court reviewed the judge’s reasoning, which considered the applicant’s age, previous conviction, and the serious psychological harm suffered by the victims. The court found no error in the categorisation of the offences or in the assessment of harm, rejecting the submission that the sentences were manifestly excessive. It noted that the judge was entitled to make findings of severe psychological harm without medical reports based on her observation of the complainant’s evidence and background.

Holding and Implications

The court DISMISSED the renewed application for leave to appeal against conviction and sentence, as well as the application for extension of time for the sentence appeal.

The decision confirms the strict evidentiary requirements for cross-examining complainants about previous allegations under the YJCEA and affirms the trial judge’s discretion in evaluating such applications. It underscores the principle that new arguments inconsistent with the defence case at trial will not be entertained on appeal. The court’s rejection of challenges to the summing-up and sentence affirms established legal standards regarding jury directions on consent and sentencing discretion in sexual offence cases.

The direct effect is that the applicant’s convictions and sentences stand, with no new precedent created beyond reinforcing existing legal principles.