The trial judge, construing an application to admit evidence that a child complainant had lied about their sexual activities as one that involved both bad character and section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”), was correct to conclude that evidence of the complainant’s apparent lies about previous sexual experience should not be admitted.
The appellant was convicted of two counts of sexual assault; he pleaded guilty to possession of extreme pornographic images later.
For the defence Miss Bache had sought to introduce evidence of lies told by the child complainant (C) about her previous sexual experiences. Miss Bache argued that the evidence was admissible bad character under s.100 (1) (b) of the Criminal Justice Act 2003, but s.41 of the 1999 Act was not engaged because she did not seek to rely on it as truthful, as C had said in her ABE interview that these rumours were not true, but rather as evidence of C's dishonest attention seeking.
The trial judge however treated the application as both a bad character application and an application under s. 41 of the 1999 Act. The trial judge considered that there was no evidence on the facts that the complainant had lied about being sexually active and that, in any event, the girls may have been discussing low level sexual contact. He concluded that the girls' discussions about prior sexual activity could not impact upon whether the complainant had lied about the specific allegations of sexual abuse made against the appellant. Finally, the judge concluded that, even if the allegations were true, it would not assist the appellant's defence and it would not be permissible under s. 41 of the 1999 Act.
During the appeal against conviction, relying on R v. V  EWCA Crim 1901, which referred to R v BT & MH  1 Cr App R 294, Miss Bache pointed to the observation that "cross examination genuinely directed towards establishing that the complainant has made a previous false complaint about a sexual matter is outside s. 41, if it goes to the lies rather than to the sexual behaviour itself".
Mr Scott Brady QC for the Crown submitted that the denial of the truth of the rumours was the only relevant point: she was not asked in interview whether she had told her friends about any sexual experience or whether what she had told them was untrue. He argued that conversations between young pre-teenage girls about sex in which one of them either lied or exaggerated are of little probative value and certainly not of substantial probative value regarding the criminal allegation.
Held, this was not a case of false complaint about a sexual matter: there is no suggestion that the complainant was ever complaining about the activities of anyone else other than the appellant. Further, what, if any, sexual experience the complainant might have had could never be an appropriate area of investigation and this was likely to be the effect of permitting this line of cross examination, bearing in mind the extremely generalised nature of the available evidence of lack of truthfulness. The judge was fully entitled to reach the conclusion that this material did not satisfy the [s.100 (1) (b)] test and therefore should not be admitted.
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