Wilson & Anor v R.

Factual and Procedural Background

This case concerns allegations of rape occurring in August 2018 involving two appellants and a complainant ("C"). The complainant accused the appellants of a series of sexual offences, with the convictions relating to counts 3 and 4 for rape by the two appellants, respectively. The trial reached a verdict in July 2024 after three attempts, with delays principally caused by the pandemic and other case-specific factors. The appellants were young adults at the time of the alleged offences.

C alleged that after meeting the appellants in a public park, she was sexually assaulted and raped by one appellant (Smith) and subsequently raped by the other appellant (Wilson). Smith was acquitted of two counts related to earlier conduct but convicted of one count of rape (count 4). Wilson was convicted of one count of rape (count 3). The defence in relation to Smith was consent, which the jury accepted for counts 1 and 2 but rejected for count 4.

The appellants appealed on the ground that the trial judge erred in refusing to admit evidence of prior consensual sexual activity between Wilson and the complainant, arguing this evidence was relevant to the issue of consent and reasonable belief in consent. The judge had ruled that such evidence was inadmissible under section 41 of the Youth Justice and Criminal Evidence Act 1999.

The trial process included a recorded cross-examination of the complainant under section 28 of the 1999 Act, with the judge giving a detailed ruling on the admissibility of sexual behaviour evidence. The cross-examination recording included some volunteered evidence by the complainant about prior sexual contact with Wilson, which was not subject to cross-examination due to the ruling.

Legal Issues Presented

1. Whether the trial judge erred in refusing to admit evidence of previous consensual sexual intercourse between the complainant and Wilson under section 41 of the Youth Justice and Criminal Evidence Act 1999.
2. Whether the exclusion of such evidence rendered Wilson's conviction unsafe.
3. Whether, if Wilson's appeal succeeded, Smith's conviction should also be considered unsafe due to the close temporal connection of their alleged offences.

Arguments of the Parties

Appellant's Arguments

• Wilson argued that evidence of two previous occasions of consensual sexual intercourse with the complainant at the same location was relevant and should have been admitted.
• The evidence was relevant to the issue of whether Wilson reasonably believed the complainant consented to the sexual activity on the occasion in question.
• Wilson contended that the judge's direction to the jury that the complainant's volunteered evidence about previous sexual contact was irrelevant was incorrect and rendered the conviction unsafe.
• Wilson sought to admit the evidence under multiple routes in section 41: reasonable belief in consent (section 41(3)(a)), motivation for false complaint (not pursued), and consent (section 41(3)(c)).

Appellee's Arguments

• The prosecution submitted that the previous sexual conduct evidence was inadmissible due to lack of substantial probative value and the risk of unfair prejudice under section 41.
• It was argued that the stark differences in accounts regarding consent made the issue of reasonable belief in consent not genuinely live, so the evidence was unnecessary.
• The prosecution maintained that the evidence volunteered by the complainant was not deliberately adduced by them and thus did not trigger section 41(5) to allow rebuttal evidence.
• The prosecution emphasized the importance of protecting complainants from irrelevant and prejudicial sexual history evidence to avoid reinforcing harmful stereotypes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v. A (No 2) [2001] UKHL; [2002] 1 AC 45	Interpreting section 41 to be compatible with Article 6 fair trial rights; allowing sexual behaviour evidence between complainant and defendant if highly relevant to consent.	The court applied the “ECHR Gloss” and confirmed that sexual behaviour evidence must pass similarity or contemporaneity tests but must be read down to protect fair trial rights.
R v. T [2004] EWCA Crim 1220	Admissibility of sexual behaviour evidence based on distinctive, specific, and repeated choices indicating consent.	The court distinguished this case on facts, finding the similarities insufficiently distinctive to admit the evidence.
R v. Evans [2016] EWCA Crim 452	Admissibility of sexual behaviour evidence involving third parties to show propensity to consent or credibility.	Referenced to explain the rare circumstances where such evidence might be admitted, but not applicable here.
R v. Guthrie [2016] EWCA Crim 1633	High threshold for admissibility of sexual behaviour evidence under section 41; principles for assessing similarity and probative value.	The court applied the high threshold and confirmed the judge’s exercise of discretion was correct in excluding the evidence.
R v. Hamadi Zeeyad [2007] EWCA Crim 3048	Clarification on the meaning of “evidence adduced by the prosecution” under section 41(5).	The court held that evidence volunteered by prosecution witnesses in cross-examination may trigger section 41(5) protections, but this was not applicable here.
R v. Aidarus [2018] EWCA Crim 2073	Consideration of similarities and dissimilarities in sexual behaviour evidence for assessing reasonable belief in consent.	The court used this precedent to analyse the relevance and reasonableness of belief in consent based on prior sexual conduct.
R v. BVY [2024] EWCA Crim 135	Applying enhanced test for evidential importance from Criminal Justice Act 2003 to sexual behaviour evidence under section 41.	The court applied the test to assess whether exclusion of evidence would render a conclusion unsafe.
R v. Harris (Wayne) [2009] EWCA Crim 434	Prohibition on cross-examination that seeks primarily to impugn complainant’s credibility rather than being probative on consent.	Referenced to emphasize that sexual history evidence must be truly probative and not for attacking credibility.
R v. Seaboyer (1991) 83 DLR (4th) 193	Warning against reliance on stereotypical assumptions about sexual history and consent (“twin myths”).	Quoted to underline the policy rationale for strict control of sexual behaviour evidence.
R v. Hill [2024] EWCA Crim 1423	Recent interpretation of section 41(5) regarding evidence volunteered in cross-examination of defence witnesses.	Applied to reject appellant’s reliance on section 41(5) as the evidence was not rebuttal but sought to exploit helpful volunteered evidence.

Court's Reasoning and Analysis

The court carefully analysed the application of section 41 of the Youth Justice and Criminal Evidence Act 1999, which restricts evidence or questions about a complainant’s sexual history except with leave of the court under strict conditions. The court acknowledged the provision’s underlying rationale: to prevent unfair prejudice and protect complainants from humiliating and irrelevant questioning while balancing defendants’ fair trial rights.

The court identified three key filters for admissibility where the evidence concerns sexual conduct between the complainant and the defendant in cases involving consent:

1. The evidence must pass the similarity test (section 41(3)(c)) or contemporaneity test (section 41(3)(b)), ensuring the evidence relates to a relevant issue and is not coincidental.
2. The evidence must have substantial probative value on an important issue, usually consent, or its exclusion would render a conclusion unsafe (section 41(2)(b)).
3. The evidence must not primarily be intended to impugn the complainant’s credibility (section 41(4)).

The court found that the previous sexual conduct evidence did not meet these thresholds. The similarities between the prior and charged incidents were insufficiently distinctive; the prior incidents were a year earlier, involved different factual features (such as filming and multiple participants), and there was no ongoing relationship. The evidence had no substantial probative value on the issue of reasonable belief in consent or consent itself.

The judge’s finding that the issue of reasonable belief in consent was not genuinely live was supported by the starkly conflicting accounts: the complainant denied consent unequivocally, while the appellants claimed express consent. Wilson did not claim any belief based on prior sexual activity that would be reasonable. The court agreed that the evidence was likely intended to impugn the complainant’s credibility rather than to legitimately inform the jury.

The court also addressed the unusual circumstance that the complainant volunteered some evidence of prior sexual contact in a recorded cross-examination, which was not edited out. Although this was an error, it worked in the appellants’ favour and did not render the conviction unsafe. The court rejected the argument that Wilson should have been allowed to explore this evidence further.

Regarding section 41(5), which permits evidence necessary to rebut or explain prosecution evidence, the court held it did not apply because the evidence was volunteered by the complainant during defence questioning and was not rebuttal evidence.

Holding and Implications

The court DISMISSED Wilson’s appeal, concluding that the trial judge correctly exercised discretion in excluding the evidence of previous sexual conduct under section 41 of the Youth Justice and Criminal Evidence Act 1999. The exclusion did not render the conviction unsafe.

Smith’s appeal was also dismissed as it depended on Wilson’s success.

The direct effect is that both convictions for rape are upheld. The court’s decision reinforces the high threshold for admitting sexual behaviour evidence to protect complainants and ensure fair trials. No new precedent was established beyond the application of existing principles.