LT, R. v

Factual and Procedural Background

The Appellant, known as LT, was convicted following a retrial of multiple sexual offences against a child, referred to as Y, who was born in September 2010. The offending occurred between 2015 and 2020 when Y was approximately five to nine years old, and LT was her stepfather. The family lived in Co Down, and the couple separated in mid-2020. The charges arose after Y disclosed abuse at school at age 10, leading to police involvement and Achieving Best Evidence interviews. The first trial in September 2022 ended with a hung jury. The retrial resulted in unanimous guilty verdicts on various counts including oral rape, sexual assault, and digital penetration, with a total sentence of 12 years' detention and a 10-year Sexual Offences Prevention Order.

The prosecution evidence included Y’s disclosures, expert analysis of mobile phone data, and a UNOCINI report documenting concerns about Y’s online activity and device restrictions imposed by her mother. The Appellant denied all allegations, attributing Y’s sexual knowledge to exposure to online games and unsupervised internet access.

Legal Issues Presented

1. Whether the trial judge erred in refusing permission under Article 28 of the Criminal Evidence (Northern Ireland) Order 1999 to cross-examine the complainant's mother about pornographic images found on the complainant's phone.
2. Whether the judge erred in refusing the defence application to stay the prosecution as an abuse of process.
3. Whether the judge failed to give the jury an adequate care or Makanjuola warning when directing them.
4. Whether the sentencing was appropriate, specifically regarding the use of consecutive sentences and potential double counting of aggravating factors.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the judge wrongly refused to allow cross-examination on the complainant's prior sexual history, specifically the access to pornography on her phone, which could provide an alternative explanation for her knowledge of sexual matters.
• The defence argued that the prosecution’s failure to seize and examine the complainant’s phone promptly and thoroughly prejudiced the Appellant’s ability to present a full defence.
• They submitted that the limited questioning permitted about the complainant’s lies was insufficient and that the jury was left with an incomplete picture, undermining the fairness of the trial.
• Regarding sentence, the Appellant challenged the imposition of consecutive sentences and alleged double counting of aggravating factors.

Respondent's Arguments

• The prosecution maintained that the judge correctly applied Article 28, emphasizing the presumption against adducing evidence or questioning about a complainant's sexual history unless strict conditions are met.
• They argued that the pornographic material found bore no relevance to the detailed and specific nature of the allegations and could not be reliably dated to before the complaints were made.
• The prosecution contended that admitting such evidence would amount to impermissible character attacks and speculative reasoning by the jury.
• On sentencing, the prosecution argued that consecutive sentences were justified given the prolonged and serious nature of the offending and that the total sentence was not manifestly excessive.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v A (No 2) [2001] UKHL 25	Compatibility of restrictions on questioning complainants about sexual history with ECHR; conditions under which such evidence may be admitted to ensure fair trial rights.	Guiding authority for interpreting Article 28; confirmed presumption against sexual history evidence but allowed exceptions when relevant to defence.
Love v HM Advocate (1999) SCCR 783	Admissibility of evidence regarding sexual experience of complainant occurring after alleged abuse as alternative explanation.	Supported the principle that evidence of other sexual activity may be admitted if it provides a reasonable alternative explanation for complainant's knowledge.
R v WC [2004] NICC 3	Interpretation of Article 28(6) to allow limited questioning to ensure fairness under Article 6 ECHR.	Applied to support that limited, circumscribed cross-examination should be permitted when necessary for a fair trial.
R v ZK [2018] NICA 46	Application of Articles 28-30 restrictions and the necessity of leave for questioning about sexual behaviour; importance of fairness and jury directions.	Confirmed the need for careful judicial discretion and that refusal of leave may render conviction unsafe if it deprives defence of fair challenge.
R v MF [2005] EWCA Crim 3376	Limits on admissibility of evidence of complainant’s prior sexual activity; relevance to explaining complainant’s knowledge.	Upheld trial judge’s refusal where proposed evidence did not provide a reasonable alternative explanation for complainant’s sexual knowledge.
Mark Le Brocq v Liverpool Crown Court [2019] EWCA Crim 1398	Underlying philosophy of section 41 of the 1999 Act; twin myths about sexual history and credibility.	Reinforced that previous sexual experience is generally irrelevant to consent and credibility except in narrowly defined exceptions.
R v Courtney [2007] NICA 6	Standard of appellate review of trial judge’s rulings; reasonableness and Wednesbury unreasonableness test.	Confirmed appellate courts should defer to trial judge’s reasonable decisions unless shown to be unreasonable.
R v Philo-Steele [2020] EWCA Crim 1016	Application of Article 28(3)(c) to evidence of complainant’s access to pornography as alternative explanation.	Illustrated circumstances where evidence of prior sexual behaviour was excluded due to lack of similarity or relevance.
Associated Provincial Picture Houses v Wednesbury Corporation (1948) 1 KB 223	Standard for judicial discretion review; Wednesbury unreasonableness.	Referenced as the standard for interfering with trial judge’s exercise of discretion.

Court's Reasoning and Analysis

The court began by affirming the engagement of Article 28 given the nature of the evidence sought to be admitted—pornographic images accessed by the complainant and the related questioning of her mother. It acknowledged the legislative purpose of Article 28 to protect complainants from unnecessary or irrelevant questioning about sexual history, while balancing the accused’s right to a fair trial under Article 6 ECHR.

The court examined the evidential threshold required to admit such evidence, noting the high standard established in case law, including R v A (No 2) and related authorities. The court recognized that the defence’s argument fell within Article 28(3)(a) and (c) as it sought to provide an alternative explanation for the complainant’s sexual knowledge through her access to pornography rather than alleged abuse.

However, the trial judge had refused the application primarily on grounds that the evidence was not sufficiently relevant or dated before the allegations and that the images bore no resemblance to the detailed allegations. The court found this reasoning inadequate. It highlighted six critical factors supporting the defence’s position: the complainant’s accessing of adult pornography at a young age, the lies told by the complainant about this access, the timing and adequacy of police seizure and examination of the phone, expert evidence showing multiple pornographic images and adult apps accessed before the complaints, corroboration from the UNOCINI report and school disclosures, and the Appellant’s early reliance on these issues in interview.

The court concluded that the judge did not properly weigh these factors and that the exclusion of this evidence deprived the Appellant of a reasonable defence, resulting in a denial of a fair trial. The court also found the limited questioning permitted about the complainant’s lies was insufficient and failed to adequately inform the jury. The judge’s directions to the jury on inconsistencies were based on the flawed evidential ruling and thus distorted the evidence.

Regarding the abuse of process ground, the court considered it overtaken by the conclusion on the Article 28 issue. On the Makanjuola warning ground, the court found the trial judge’s directions adequate, emphasizing that such warnings are discretionary and fact-specific, and no Wednesbury unreasonableness was demonstrated.

On sentencing, the court upheld the imposition of consecutive sentences given the prolonged and serious nature of the offending, finding no manifest excess or error in principle.

Holding and Implications

The court ALLOWED the appeal on Ground 1, holding that the refusal to admit evidence and questioning related to the complainant’s access to pornographic material and associated lies deprived the Appellant of a fair trial. Consequently, the conviction was quashed as unsafe.

The court allowed a short period for the prosecution to consider whether to pursue a retrial. The other grounds of appeal were either rejected or deemed unnecessary to decide in light of the primary ruling.

This decision directly affects the parties by overturning the conviction but does not establish new legal precedent beyond reaffirming strict adherence to Article 28 principles and fair trial rights in cases involving sexual history evidence.