Neutral Citation Number: [2004] EWCA Crim 3103
Case No: 200402501B2
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Strand, London, WC2A 2LL

Date: 8 December 2004
Before :

LORD JUSTICE MAURICE KAY
MR JUSTICE McCOMBE
and
MR JUSTICE DAVID CLARKE
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Between :

	REGINA		
	 v.
		
	TW		

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Miss Janet Reaney appeared on behalf of the Appellant
Paul Becker appeared on behalf of the Crown

Hearing dates : 12 November 2004
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Judgment
Lord Justice Maurice Kay : 
1.	On 24 March 2004 in the Crown Court at Liverpool before Her Honour Judge Steel the appellant was convicted of five sexual offences.  He was acquitted of four further sexual offences.  On 10 May 2004 he was sentenced to a total of five years imprisonment.  For two offences of rape and one offence of attempted rape he was sentenced to five years imprisonment.  For two offences of indecent assault he was sentenced to two years imprisonment.  All  the sentences were ordered to be served concurrently.  The guilty verdicts were by a majority of ten to two.  He now appeals against conviction by leave of the single judge.  
2.	The Appellant is aged 71. The complainant in relation to all the allegations was the appellant’s sister in law.  She was aged 53 at the time of the trial.  She has been blind since birth and has always lived with relatives as carers.  She lived with the appellant and his wife (her sister) for two separate periods, the second of which ran from 1993 until 2003.  The allegations related to the period 2001 until 2003.  The indecent assaults of which the appellant was convicted concerned the fondling and kissing of the complainant’s breasts.  The incidents of rape and attempted rape began a few weeks after the indecent assaults.  The indecent assaults of which the appellant was acquitted were allegations of insertion of objects into the complaint’s anus and unsuccessful attempts at oral sex.  The case for the appellant was that, in relation to the offences of which he was convicted, the complainant consented.  Indeed, she was enthusiastic.  In relation to the offences of which he was acquitted, it was that the events simply never occurred.  It was suggested on behalf of the appellant that the complainant had been influenced by another sister to make false allegations.  For present purposes, it is unnecessary to rehearse more of the unsavoury facts of the case.  
3.	There are two grounds of appeal.  The first relates to a ruling about the cross examination of the complainant.  The second suggests that the verdicts of guilty were inconsistent with the acquittals.  
Cross examination of the complainant.
4.	In her video recorded interview with the police (which was not adduced in evidence at the trial), the complainant asserted that she had had no previous sexual experience, adding “If I had wanted a boyfriend I would have had one years ago”.  She referred to male friends at a local club but denied any sexual relationship with them.  In his interviews under caution the appellant referred to the complainant’s friendship with men at the club, particularly with one named man.  His first mention was “They used to take her out socialising”.  The men in question were themselves disabled and, it seems, confined to wheelchairs.  They had died at least ten and possibly twenty years before the trial.  Later in his interview the appellant referred to occasions of family banter in which “we used to wind her up about it” and “she said we used to go in the cloakroom”.  Further on in the interview, he maintained that “she used to sit on his knee”.  He said that he did not think that she was a virgin but he based that on his experience of intercourse with her rather than on anything that had been said either recently or in the distant past.  In addition to what the appellant had said in interview, his instructions to his legal advisers were that the complainant had spoken in the past of a degree of intimacy with a man at the club.  She had described it in terms of genital fondling.  
5.	At the trial defence counsel indicated to the judge her wish to cross examine the complainant about what she had said in the past concerning her relationships with men at the club.  She made it clear that she was not seeking to question the complainant as to whether any particular event had occurred.  She said:
“What I would not be doing is being able to say anything on behalf of the defendant about whether those comments she made to him truly represented her experience or not.  It is simply the fact that she made those comments and spoke freely about those boyfriends that he says was relevant to his belief in her consenting to intimacy with him.”
In other words, it was not the truth or otherwise of what she had said but the fact that she had said it that was said to be relevant to the appellant’s belief in her consent.  Counsel made it clear to the judge that she was raising the matter for a ruling, whether or not it fell strictly within section 41 of The Youth Justice and Criminal Evidence Act 1999.
6.	The judge’s ruling came in stages but her reasoning is apparent from these passages:
“It is sexual behaviour within the wider context.   I would not allow questions in relation to the type of behaviour which it is said she indulged in with these other individuals, because I think that that falls fairly and squarely within Section 41, and is not relevant, it is not identical, it is not close in time, there is nothing which brings it within the section.. If you can frame questions limited to the fact that she had a friendship, I would put it that way, with other men, in other words she was not coming to him as the first and only man with whom she had gone out, to use a colloquialism, then I will be more minded to allow those questions…..
I think you want to make it absolutely clear when asking that question that when you use the term ‘friendships’ and ‘boyfriends’ you are not implying that there is anything sexual.  I appreciate that that puts you in a difficulty but if you do go down that road… ”
At that point defence counsel politely interrupted and it was soon made clear that if that was the limit of what was to be permitted she would not wish to pursue it.  In the event, no evidence was given by the complainant or the appellant about these matters.  The complainant was not asked to say what she had said in interview, namely that she had no previous sexual experience.  The appellant was asked nothing about the previous conversations, nor did he give evidence about an impression that the complainant was not a virgin. 
7.	In pursuit of this ground of appeal, Miss Reaney makes alternative submissions.  First, she submits that the questioning upon which she had sought a ruling did not fall within section 41.  Secondly, she submits that, if it did fall within section 41, then the judge ought to have permitted it in any event because of its relevance to belief in consent.
8.	Section 41(1) provides:
“If at a trial a person is charged with a sexual offence, then, except with the leave of the Court –
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination, 
by or on behalf of any accused at the trial, about any sexual        behaviour of the complainant.”
In this context, “sexual behaviour” means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a)) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused: section 42(1) (c ).
9.	The court may not give leave unless it is satisfied (a) that subsection (3) or (5) applies, and (b) that a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.  Section 41(3) then provides:
“This subsection applies if the evidence or question relates to a relevant issue in the case and either – 
(a) that issue is not an issue of consent; or
(b) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused; or
(c) it is an issue of consent and the sexual behaviour of the complainant to which the evidence or question relates is alleged to have been in any respect, so similar –
(i) to any sexual behaviour of the complainant which (according to evidence adduced or to be adduced by or on behalf of the accused) took place as part of the event which is the subject matter of the charge against the accused or 
(ii) to any other sexual behaviour of the complainant which (according to such evidence) took place at or about the same time as that event, 
that the similarity cannot reasonably be explained as a coincidence.”
Section 41(5) provides:
“This subsection applies if the evidence or question –
(a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and
(b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused.”
10.	What counsel had envisaged was the asking of questions about what the complainant had said in the past but without further questioning as to whether anything that she had said had been true or false.  Thus, if the complainant had admitted making the statements attributed to her by the appellant, it would be left in the air as to whether the statements were the truth or simply boastful talk.  
11.	Where, by cross examination, it is sought to establish that a complainant has made previous false allegations of sexual offences; and there is an evidential basis for such a suggestion, section 41 does not apply.  In that situation the cross examination is not about her “sexual behaviour”, it is about her having told lies on a previous occasion.  It goes to her credibility: see R v. T and H [2001] EWCA Crim 1877; [2001] 1WLR 632.  As Keene LJ made clear when giving the judgment of the court in that case, even though the cross examination falls outside section 41, it is the duty of defence counsel to raise the matter with the judge and to seek a ruling that section 41 does not apply.  The judge in that situation is entitled to seek proper assurances from the defence that it has a proper basis for asserting that the statement was made and was untrue.
12.	R v. T and H was considered in R v. C and B [2003] EWCA Crim 29.  Mance LJ described the rationale of T and H  in these terms (at paragraph 27):
“   If evidence is adduced about complaints which cannot be properly challenged as false then the intention must be to elicit that other sexual behaviour or experience, the subject of such complaints, and so to deploy it in one way or another to the complainant’s discredit…..on that basis, the judge would have been right to consider that the extent to which it was permissible was a matter for his discretion.”
How does this impact upon the present case?  We do not doubt that, if she had been permitted to embark upon the desired cross examination, Miss Reaney would have scrupulously made it clear to the witness and to the jury that she was not asserting either the truth or the falsehood of what she was alleged to have said.  However, that is hardly reassuring.  If the material was to be left to the jury on the basis that it might have been false, then the converse, namely that it might have been true, would also, at least implicitly, as a matter of logic be left to the jury, however they might be instructed not to speculate as to truth or falsehood. 
13.	T and H and  C and  B illustrate the outer limits of section 41.  They show that the section does not apply where it is unequivocally suggested that previous statements or complaints about sexual behaviour were false and there is an evidential basis for such an assertion.  Where, as in the present case, that does not apply, questions about statements relating to previous sexual behaviour will fall within section 41.  That analysis accords with the authorities and with the policy behind section 41, which would be undermined if the envisaged cross-examination were to fall outside its purview.
14.	Turning to the exercise of discretion by the trial judge, it is important to place it in context.  The behaviour to which the statements were said to relate was a matter of ancient history, although the statements themselves were said to have continued into the more recent past.
15.	Significantly, the primary case for the defence was that the complainant had not only consented to the various acts which were to be considered by the jury; she had been an enthusiast for, and to an extent the instigator of, the acts.  Her account was unequivocally of indecent assault and rape.  His account was that the acts said to constitute the indecent assaults only took place in the context of consensual sexual intercourse.  He was ultimately to maintain: “She started it.  She took advantage of me.”.  The primary issue before the jury was therefore a stark one.  Honest but mistaken belief in consent was at best a secondary issue.  In such circumstances, we consider that the judge was correct to reject the application to cross examine the complainant in the manner suggested.
Inconsistent verdicts
16.	Miss Reaney advances this ground of appeal with diffident charm, as well she might.  For it to be established in this court that the verdicts of a jury were inconsistent it must first be shown that they were logically inconsistent.  The mere fact that the convictions and the acquittals were based on the uncorroborated evidence of the same witness does not necessarily establish logical inconsistency.  See Bell (1997) ……., in which it was observed that Cilgram [1994] Crim LR 861, is to be regarded as an exceptional case.  What the authorities show is that this court will interfere only if it is satisfied that no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the different conclusions which were reached.
17.	In our judgment, the reasoning of the jury in the present case is obvious.  Where counts depended upon the evidence of the complainant that events had taken place which the appellant totally denied, the jury was not sure that the events had taken place.  On the other hand, where there was no dispute about the occurrence of the events, but the issue was as to the circumstances and, in particular, as to consent, they accepted the evidence of the complainant.  In such circumstances, a ground of appeal asserting inconsistent verdicts simply does not get off the ground.  We observe that the single judge gave no encouragement in relation to this ground of appeal.
Conclusion 
18.	It follows from what we have said, that in our judgment the verdicts of the jury were and are not unsafe.  The appeal is therefore dismissed.