No: 200305746/B1 
Neutral Citation Number: [2004] EWCA Crim 946
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Thursday, 4th March 2004
B E F O R E:

LORD JUSTICE LAWS 

MR JUSTICE GOLDRING 
 
MR JUSTICE KEITH 

- - - - - - -

R E G I N A 

-v- 

ANDRE BARRINGTON WHITE
 
 - - - - - - -
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR A S MULLER appeared on behalf of the APPELLANT
MR P R GRICE appeared on behalf of the CROWN
 - - - - - - -
J U D G M E N T 

1.	Lord Justice Laws: On 24th February 2004 this Court, constituted as it is today, adjourned this appeal against conviction because, as we indicated at the time, we had had virtually no assistance from counsel at that stage upon the impact on the case of the decision in their Lordships' House in R v A (No 2) [2002] 1 AC 45.  Counsel have now put in skeleton arguments.  The importance of the decision in A will become clear as we explain how this appeal has unfolded.
2.	On 28th March 2003 before His Honour Judge MacDuff at the Birmingham Crown Court the appellant was convicted by the jury by a majority of ten to two of an offence of rape.  On 13th June 2003 he was sentenced by the same judge to a term of five years' imprisonment.
3.	He appeals against his conviction by leave of the single judge.
4.	On the night in question the complainant had been drinking with a friend in a public house.  The friend left.  The appellant was there.  The complainant had seen him in the pub before.  They had a few drinks together.  She asked him back to her flat for a drink.  At the flat they had a drink and smoked some cannabis purchased on the way.  The complainant became intoxicated.  The appellant asked to go into the bedroom with her.  She said she was having her period.  Then her evidence to the jury continued as follows:
"After she continued to refuse the appellant grabbed her by the hair and pulled her into the bedroom.  He threw her on the bed and seized her by the throat.  He undid her clothes despite her protests.  He slapped her in the face and pulled out her tampon.  He then had sexual intercourse with her.  She struggled.  She tried to push him off.  She told him not to do what he was doing.  Afterwards he tried to put his penis in her mouth.  He allowed her to go to the lavatory.  She left the house in a dressing gown to try and rouse the neighbours.  When she came back he had gone.  She dressed.  She went to Thornhill Police Station where she arrived at 6.49 a.m..  Photographs were taken of her injuries.  She said they were caused when she was trying to fight him off."
5.	The appellant's evidence was that they had had sex with her consent, indeed at her instigation.  He said she had earlier asked him for money, £40, and he had refused.  After they had sex he dozed off and woke to find his wallet was missing.  She had it in her hand.  There was a struggle as he tried to get it back.  His final account given to the jury was that she seemed to have no injuries at the time he left the premises. 
6.	As the complainant herself made clear in a witness statement she had worked as a prostitute in Coventry for 19 years or so.  By the time of the alleged offence she was no longer working on the streets, but she still had one long-standing client who came to her flat and, as we think it was put, "a couple of other regulars" who came there less frequently.
7.	At the outset of the trial the judge had to deal with a defence application.  It was for leave to cross-examine the complainant about her previous and contemporary activities as a prostitute.  Leave was necessary by force of provisions contained in section 41 of the Youth Justice and Criminal Evidence Act 1999.  Here are the material provisions, section 41(1) to (6):
"(1) 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. 
(2) The court may give leave in relation to any evidence or question only on an application made by or on behalf of an accused, and may not give such 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. 
(3) This subsection applies in 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. 
(4) For the purposes of subsection (3) no evidence or question shall be regarded as relating to a relevant issue in the case if it appears to the court to be reasonable to assume that for the purpose (or main purpose) for which it would be adduced or asked is to establish or elicit material for impugning the credibility of the complainant as a witness. 
(5) 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. 
(6) For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate)."
8.	This is what the judge said (transcript page 3E-4G):
"The issue before this court is quite simply an issue of consent.  The defendant's case is that the complainant consented to his having sexual intercourse with her.  She denies it and says she attempted to fight him off and did not consent. 
Mr Reid contends that the facts fall within subsection (3)(b).  The subsection applies if the evidence or question relates to a relevant issue in the case and 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. 
Mr Reid puts it in this way: although it is not his case either that there had been an agreement for payment or that payment was made or was to be made, his instructions are that the complainant gave by her demeanour and by her alleged looking in his wallet the indication that she was expecting payment.  Moreover, as is clear from the papers, she had invited him back to her premises and on the way had purchased drink and cannabis for their consumption.  He says that amounts to sexual behaviour which is not only proximate to the event but co-exists with the event. 
In my judgment, the fact that she has in the past worked as a prostitute cannot in any way have any relevance to the question of whether on this occasion she consented to sexual intercourse, it not being, as I understand it, any part of the defendant's case that she consented because he had offered payment or that payment had been agreed. 
Moreover, it seems to me on a reading of subsection (3)(b) that her previous experience of sexual matters was not any in way proximate to the events about which complaint is made and, in my judgment, this is not a case where, if I am wrong about that, the refusal of leave would have the result of rendering unsafe any conclusion that the jury might make in due course. 
Mr Reid agrees with me that it would be wrong for it to be allowed in on the basis which could only be a prejudicial basis that the jury should know she had worked as a prostitute in the past and, therefore, whether nor money or not, on this occasion not, she was more likely to consent than otherwise and, in those circumstances, the application is refused."
9.	Subsequently the learned judge modified his ruling to this extent (transcript 5D):
"... you may not her ask if she has ever in the past worked as a prostitute, but it seems to me you are not infringing the rule if you say to her, 'On this date, on this particular day, you were expecting to be paid, were you not?' and following it through in that way.  Now, is that right, Mr Grice [Mr Grice was the prosecutor]? 
Mr Grice: Your Honour, that is my understanding, yes. 
The Judge: Yes. 
Mr Reid: Your honour, I am not unhappy with that at all.  It is that I was seeking a ruling."
10.	For the appellant it is submitted by Mr Muller that leave should have been given to cross-examine, at any rate, as to her previous and contemporary activities as a prostitute having regard to sections 41(2)(b) and 41(3)(a), (b) and (c).
11.	Granting leave to appeal, the single judge said:
"I have given leave because it seems at least arguable that cross-examination should have been permitted of the complainant about her contemporaneous activities as a prostitute because the case raised an issue of consent and the inability of the appellant to ask questions 'might have [had] the result of rendering unsafe a conclusion of the jury ... on any relevant issue' (Youth Justice and Criminal Evidence Act 1999 section 41(2) and 3(b))."
12.	Since we adjourned the case the appellant's counsel has put in fresh perfected grounds of appeal against conviction.  Some of the submissions there set out may be thought to suggest that the bare fact that the complainant was a prostitute was relevant to the issue of consent: see the argument set out in those grounds relating to sections 41(3)(b) and 41(3)(c)(ii).  Whatever may have been the position in the old cases, that is not the law any more.  It should today be a simple commonplace that a prostitute is as much entitled to say No as any other woman, and the fact that the complainant is or was a prostitute is no reason on its own to suppose that she might have been any more ready than the next woman to say Yes.  But we should set out counsel's formulation of the issue, or issues, to which the material sought to be put in is said to relate.  It is given on the first page of the fresh perfected grounds under the heading "the trial issue":
"The central issue at the trial was whether the jury could be sure that [the complainant] was telling the truth.  The logical approach of any reasonable jury would include asking themselves: Why she should lie? -- a question the judge twice invited them to consider this in his summing-up (transcript 49B, 50G).  Had the jury known of the excluded evidence, one possible answer to the question would have been:  'Because she was a prostitute and Mr White refused to pay for the sex'.  A logical jury would also have asked themselves: 'How did she get injured?'  Had the jury known of the excluded evidence, one possible answer would have been: 'Because she was a prostitute who would have insisted on being paid for her services, thereby coming into conflict with a customer who refused to pay.'"
13.	In our judgment, if this appeal were unassisted by the force of the Human Rights Act, it would be doomed to failure.  It is plain from section 41(4) that material concerning the complainant's sexual behaviour which went only to impugning her general credibility is ruled out, but, in addition, the terms of section 41(6) have to be confronted.  The requirement is that if material is to be allowed in under section 41(3) or (5) it must relate to a specific instance, or instances, of alleged sexual behaviour on the part of the complainant.
14.	In his fresh grounds Mr Muller for the appellant asserts under the heading "section 41(6)":
"'being a prostitute' contemporaneous to the alleged offence is a specific instance of alleged sexual behaviour on the part of the complainant.  Alternatively, each event of prostitution by her was a specific instance -- fixed by location and/or date."
15.	We should say we have been shown a list of the complainant's previous convictions which contain many convictions for what may be called street walking, with the date of the court appearance appearing on the list.  No doubt Mr Muller would say that the dates of the individual offences themselves could have been pursued.
16.	We do not accept the submission here made that such information as there was about the complainant's current and past activities as a prostitute is capable of fulfilling the terms of section 41(6).  That argument is tantamount to the proposition that any sexual encounter of a complainant will satisfy section 41(6) if it happens to be possible to assign a date and place to that conduct.  If that were all the subsection meant it would amount to very little indeed.  In our judgment, the subsection only possesses intellectual coherence if it is taken to require that there must be something about the circumstances of a specific episode of alleged sexual conduct by a complainant which has potential probative force.  That proposition is, we think, lent added strength by the terms of section 41(3)(c) by which it must be shown that the sexual behaviour sought to be adduced is so similar to the conduct complained of in the proceedings, or other contemporaneous conduct, as to be beyond a coincidence.  Clearly that provision can only operate where the behaviour sought to be adduced consists in the specifics of a particular episode or episodes against which the possibility of coincidence can be measured.  Even if, section 41(6) aside, the defence application here might properly have been allowed pursuant to any of the provisions of section 41(3), we consider that section 41(6) presented an insuperable obstacle unless it could in some way be read down by the force of section 3 of the Human Rights Act 1998.
17.	In any case, however, there are in our view great difficulties in fitting the case within any of the provisions contained in section 41(3).  Counsel's formulation of the issues which we have read shows that in truth the question here was whether or not the complainant was to be believed on the consent issue.  It might be thought that the excluded material was sought to be introduced merely to impugn her credibility.  As we have made clear, that would be prohibited by section 41(4).  But let it be supposed, though we would not in fact accept it, that her acts as a prostitute were potentially objectively relevant as an explanation of why she might make up a false allegation of rape against a man who refused to pay her.  It is important to see precisely what was the evidence she might have given about those activities.
18.	Apart from the long list of previous convictions, the material is contained in the first two paragraphs of her witness statement of 25th May 2000.  It is effectively already summarised but we read if for convenience:
"I worked as a prostitute in Coventry from about the age of 21 till the age 30 and I was then working on the streets.  I didn't like doing this any longer, it dangerous, and so I eventually stopped and started just having clients coming to my house instead. 
I decided to move out of Coventry and I stopped with a friend in Handsworth and eventually I was given the flat I'm in now by Focus Housing, this was about four years ago.  Since being in Handsworth I still have one regular client come to my flat who I've known for 14 years, and there are a couple of other regulars who also come to my house on an infrequent basis.  I'm not working otherwise so this is the only reason that I carry on doing prostitution as I can't manage financially."
19.	On the face of it, and even taking into account the list of convictions, this material is in too general terms for it to be asserted that any acts of the complainant's as a prostitute were in fact sufficiently contemporaneous with the alleged rape to engage section 41(3)(b), and there is nothing to show any significant similarity between those acts and the alleged rape for the purposes of 41(3)(c).
20.	Mr Muller submits that the necessary degree of similarity can be found between her taking money for sex in her trade as a prostitute and such details of the episode in question here as might have suggested to the appellant that she would be prepared to have sex for money.
21.	In our judgment, on the facts of this case, that submission is entirely insubstantial.  There is nothing here to engage section 41(3)(b) or 41(3)(c), even if, as we have said, a complainant's acts as a prostitute might in some instances be thought to be relevant to issues there canvassed.
22.	It is also submitted that the question how the complainant came by her injuries was not an issue of consent, and the fact of her being a prostitute was relevant to that question and so should have been admitted under section 41(3)(a).  But the question of her injuries is entirely bound up with the issue of consent.  Her account was that she sustained them in the very course of being forcibly raped.  His account was that she did not appear to him to have any injuries at all when he left.
23.	It is also submitted that section 41(3)(a) arises because the question whether the complainant was a person who might be likely to rifle through the appellant's wallet for money engages the subsection.  But that issue is also intimately bound up with the consent question.  Mr Muller's submission is, with respect, really no more than this: just because she is a prostitute she would be more likely to take the appellant's money.  That is an untenable proposition.  On these particular facts there was, in our judgment, no case to be made under section 41(3)(a).  Nothing in the appellant's interview or the complainant's statement to which Mr Muller took us promotes a different view.  There is here no material possessing distinct probative force such as might properly engage section 41(3)(a).
24.	We turn to the question whether the appellant is assisted by his Convention rights.  R v A was also a case of rape in which the defence was consent, or, alternatively, that the appellant believed the complainant had consented.  The appellant desired to cross-examine the complainant about an alleged consensual sexual relationship between her and himself in which the most recent act of consensual sex had happened one week before the alleged rape.  The trial judge held that it could not be admitted under section 41(3)(b) or at all.  This Court held that it was material to the appellant's belief in the complainant's consent and so could go in under section 41(3)(a), but it was inadmissible on the issue of consent itself.
25.	Their Lordships' House held (headnote page 45H):
"... a prior consensual sexual relationship between the complainant and the defendant might, in the circumstances of an individual case, be relevant to the issue of consent; that, although in giving effect to the defendant's rights under article 6 account might also be taken of the interests of the complainant and of society in general, his right under article 6(1) to a fair trial, assessed by reference to the overall fairness of the proceedings, was absolute and fundamental and would be infringed if he were denied the admission of relevant evidence where its absence led to his unjust conviction."
26.	Then under holding (2):
"... the temporal restriction in section 41(3)(b) could not be construed as permitting evidence or questioning other than in respect of acts which were really contemporaneous with the incident charged; but that under section 41(3)(c), construed where necessary, or (per Lord Hope of Craighead) so far as it was possible to do so, by applying the interpretative obligation under section 3, and always giving due regard on the importance of protecting the complainant from indignity and humiliating questioning, the test of admissibility was whether the evidential material was nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6; and that where that test was satisfied the evidence should not be excluded."
27.	In fact their Lordships dismissed the appeal, holding that the evidential material which the appellant sought to put in related to a bare assertion of his previous sexual relationship with the complainant.  There was insufficient material on which to assess whether it fell within the ambit of section 41(3)(c), so the matter had to be returned to the Crown Court.
28.	The extensive reasoning of their Lordships has in it, with great respect, much of value going to the social and legal background against which section 41 was enacted.  The substantial focus, however, is on the means and extent by and to which section 41 may properly be made to accommodate the introduction of evidence or cross-examination going to previous sexual activity between the complainant and the appellant where that is required in the interests of a fair trial in conformity with the standards of article 6 of the Convention.
29.	It is not, with deference, necessary to enter into the instructive detail of their Lordships' speeches because of an important distinction between that case and this.  In A, as we have made plain, what was desired was to introduce material concerning previous sexual activity between the complainant and the appellant himself.  Here what was desired was to introduce material concerning previous sexual activity between the complainant and others.
30.	In A Lord Steyn said at paragraph 30:
"Although not an issue before the House, my view is that the 1999 Act deals sensibly and fairly with questioning and evidence about the complainant's sexual experience with other men.  Such matters are almost always irrelevant to the issue whether the complainant consented to sexual intercourse on the occasion alleged in the indictment or to her credibility.  To that extent the scope of the reform of the law by the 1999 Act was justified.  On the other hand, the blanket exclusion of prior sexual history between the complainant and an accused in section 41(1), subject to narrow categories of exception in the remainder of section 41, poses an acute problem of proportionality."
31.	Lord Hope's view of the position, relating to evidence of sexual activity between the complainant and others, was perhaps more guarded: paragraph 77:
"Section 41 does not distinguish between evidence or questions about the complainant's sexual behaviour with the accused and the complainant's behaviour with persons other than the accused.  The extent to which these two situations ought to be approached differently is left to the determination of the trial judge.  There are strong reasons for imposing a narrower prohibition on the complainant's sexual behave with third parties.  Evidence or questions about sexual behaviour with third parties is likely to be much harder to justify on grounds of relevancy than evidence about sexual behaviour with the defendant.  Nevertheless I think that the draftsman was right to avoid laying down an absolute rule on this point.  To have done so would have been to risk incompatibility with the accused's right to a fair trial.  It is worth noting that the absolute prohibition in the original version of section 276(1) of the Canadian Criminal Code (RSC 1985, c C-46) which was held in R v Seaboyer to be incompatible with the defendant's rights under the Charter of Rights and Freedoms was directed solely to evidence about the sexual activity of the complainant with persons other than the accused.  The section, in its original version, placed no restriction on the admissibility of evidence about sexual activity with the accused himself.  Much of the discussion in that case is about the relevance or otherwise of the complainant's sexual activity with third parties. But McLachlin J, at page 633F, questioned whether evidence about other sexual activity with the accused should be automatically admissible, and in its revised form section 276(1) of the Code treats both kinds of sexual activity in the same way.  In this respect, as counsel for the Secretary of State pointed out (in my view correctly), section 41 follows the Canadian example."
32.	It is to be noted that Lord Hope considered that it had not so far been determined that section 41 was incompatible with the appellant's Convention right to a fair trial (paragraph 106), and it was, in any event, not possible to read into section 41:
"... a new provision which would entitle the court to give leave whenever it was of the opinion that this was required to ensure a fair trial." (Paragraph 109)
33.	Lord Clyde also dealt with the distinction between acts of sex between the complainant and the appellant and such acts between the complainant and another or others: paragraph 125:
"But there is one vital distinction which must be recognised among the generalities which are sometimes adopted in this context, and that is the distinction between a history of intercourse with the defendant and a history of intercourse with other men.  To an extent that distinction has been recognised in the past.  While questions could be asked in cross-examination of the complainant about someone other than the defendant evidence could not be called to contradict her answer since that would open the way to an inquiry into a multitude of collateral issues (R v Holmes (1871) LR 1 CCR 334).  On the other hand evidence could be led to counter an answer where the question had been asked in relation to intercourse with the defendant (R v Riley (1887) 18 QBD 481).  But the distinction should be recognised as going further.  It may readily be accepted that some evidence at least relating to sexual behaviour with the defendant outside the particular event which is the subject of the trial may be relevant as casting light on the question of the complainant's consent.  But I do not consider that evidence of her behaviour with other men should now be accepted as relevant for that purpose.  As Lord Justice-Clerk Macdonald said long ago in the Scottish case, Dickie v HM Advocate (1879) (24) R(J) 82, 84:
'I am not aware that such evidence has ever been allowed, and indeed it could only be allowed upon the footing that female who yields her person to one man will presumably do so to any man -- a proposition which is quite untenable.'"					
34.	Then finally Lord Hutton at paragraph 148:
"As regards the first myth it is important to recognise that the present case is one where the defendant wishes to make the case that the complainant had previously had consensual sexual intercourse with him -- he does not wish to make the case that the complainant had previously had consensual sexual intercourse with other men and that therefore it was likely she had consented to have sexual intercourse with him.  This is an important distinction, and I propose to confine my observations to a case such as the present one where a defendant seeks to give evidence of the complainant having had previous consensual sexual intercourse with him."
35.	In our judgment R v A is not authority for any wider reading of section 41 by force of section 3 of the Human Rights Act in a case where sexual acts of the complainant with men other than the appellant are sought to be adduced than is justified by the application of conventional canons of construction.  At the least it would take a very special case to accommodate evidence of such acts in circumstances in which they would not be accommodated by an ordinary reading of the section.  It is also important to notice that their Lordships were at pains to point out that section 3 could not justify an extension of the temporal restriction imposed in section 41(3)(b) beyond the confines of strict contemporaneity: see per Lord Slynn at paragraph 12, Lord Steyn at paragraph 40, and Lord Hutton at paragraph 156.  As it happens, we simply do not know how close in time to the alleged rape were any of this complainant's encounters with her customers.  R v A, moreover, contains no discussion whatever of section 41(6).  There is but a passing reference in Lord Clyde's speech at paragraph 128.
36.	In the result, in our judgment, the appellant is unassisted by R v A.
37.	This is a case in which the appellant did not seek to adduce evidence about any specific sexual encounter on the footing that it possessed some identifiable probative force.  His concern was to let the jury know that the complainant was a prostitute.  That does not go in any legitimate sense to the issue of consent on the facts here.  The information about her prostitution contained in her statement, even taken with her list of convictions, is, as we have said, really in general terms.  Such evidence would not go to prove, for example, that she was more likely than not to have sought money from this appellant on the occasion in question.  The appellant was not one of her clients.  He never claimed to have been.  He did not know that she was a prostitute.
38.	Mr Muller sought to assert as a freestanding point that the complainant's convictions should have gone in as convictions.  It seems that convictions recorded against the appellant himself were put before the jury, but that was done at defence counsel's instance.  He desired the jury to know that his client had no previous record for offences of a sexual nature.
39.	So far as the complainant's convictions relating to prostitution are concerned they, of course, were ruled out by the judge's decision made under section 41. It is true she had other convictions.  They were not put.  There is no distinct ground of appeal under which complaint is made of that fact and no application has been made to amend the grounds today.  No doubt it would have involved investigations as to the stance taken by defence counsel at trial.  It is simply not a matter that is before us.
40.	In our judgment, the learned judge was right to exclude the cross-examination sought to be put to this complainant.  The conviction is safe and the appeal will be dismissed.