Neutral Citation Number: [2006] EWCA Crim 1901
Case No: 2005/04558/C4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT SITTING AT WINCHESTER
Recorder of Winchester

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2006
Before :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE CRANE
and
MRS JUSTICE DOBBS
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Between :

	R	Respondent	
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	V	Appellant	

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Mr Robert Grey for the Appellant
Mr Louis Weston for the Respondent

Hearing dates : 14th July 2006
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Approved Judgment

Mr Justice Crane: 

1.	On 16 August 2005 in the Crown Court sitting at Winchester, the Appellant was convicted on three counts involving sexual conduct towards his daughter, J:  assaulting a child under 13 by penetration (count 1) and two counts of rape (counts 2 and 3).  On 16 September the trial judge, The Recorder of Winchester sentenced him to 10 years’ imprisonment on each count concurrent.  He has limited leave to appeal against conviction on grounds to which we shall return.
2.	J was 14 at the time of the trial.  The Appellant and her mother were divorced when she was 8 and she then lived with her mother.  In 2003 the Appellant set up home with a new partner in her cottage.  His partner already had a number of children, including a daughter, C, with whom for a time J was friendly.
3.	In the summer of 2004 J’s mother went into hospital for a week, after which J argued with her mother and said that she wanted to live with the Appellant.  She did in fact stay with him for a month in about June 2004, although her mother did not want her to go.
4.	The evidence on which the counts were based came from J.  The first incident occurred during that stay.  J and C shared a bed, “topping and tailing”.  The Appellant entered the bedroom when the girls were watching television.  He told C that he wanted to spend some time with J and asked C to leave the room.  He lay on the bed and began talking to her.  Then he pulled her trousers down and placed a finger inside her vagina.  After about two minutes he stopped and left the room.  C returned a few minutes later.  That was count 1.
5.	After her return home C was argumentative and unpleasant with her mother.  An uncle arranged counselling.  J continued to stay, at her own insistence, with the Appellant on a regular basis, usually at weekends.
6.	Count 2 occurred during the third or fourth stay.  In her video interview J said that C was not in the cottage at the time.  The Appellant entered the bedroom and exposed his penis.  He told J to give him a “blow job” and forced her to perform oral sex on him.  When she protested, the Appellant told her “You did it for Jack”.  In cross-examination J said that she had been confused about C’s whereabouts.  In fact the Appellant had asked C to leave the bedroom before committing the offence.  In re-examination she said that she and C had been in the lounge and that she had gone to the bedroom to put her pyjamas on.
7.	The reference to “Jack” was to J’s great uncle.  In 2001 J had complained of sexual abuse by Jack when she was 7 or 8.  It consisted of oral sex performed by him on her and of making her touch his genitalia.  He subsequently pleaded guilty to indecently assaulting J.  Agreed admissions were made before the jury about those matters, with the judge’s approval.  The Prosecution regarded it as necessary to explain the remark about Jack to the jury.  The Defence wished to be in a position to suggest to the jury that J’s allegations against the Appellant were influenced by what had occurred with Jack.  However, in the light of the admissions, a previous ground of appeal in relation to this part of the history is no longer pursued.
8.	Count 3 occurred on a later visit, which J finally asserted was one in September 2004.  C and J were in bed, “topping and tailing”.  C was asleep and J was falling asleep, when the Appellant entered the room.  He made her sit on his lap and placed his penis in her anus.  C was sleeping with her face to the all.  The bed was 6 feet, 2 inches long and 3 feet, 6 inches wide.  It was old and it creaked.  J said that although the bed might have made a bit of noise, C was a deep sleeper and slept throughout.
9.	In March 2005 J told her uncle in a telephone conversation about the digital penetration and the oral sex.  Two days later she told her mother about the anal rape.  Although she had told a close friend, E, about the abuse by Jack, she had not told E about the abuse by the Appellant, because she did not wish to upset E after E had complained to J about her own father.  However, E did confirm that in late November or early December J had told her that her bottom hurt.  And shortly before March J told her that she had dreamed about giving the Appellant oral sex.
10.	Medical examination of J in March and April 2005 revealed nothing.  J told the doctor that after the anal rape her bottom was very painful and that she had seen blood marks on lavatory paper.  She also noticed in the mirror a red mark on her bottom like a rash.  The doctor said that such signs would be consistent with recent anal penetration.  There was no clinical finding to support the digital penetration.  It was before the jury that J had been fingered on one occasion by a boy friend and that two boy friends had had full penile penetration. 
11.	The Appellant was arrested on 21 March 2005.  In interview he denied any sexual abuse of J.  He said that she needed professional help and was lewd.  He concluded that her reason for fabricating the allegations was that he decided to move to Spain and not take J, although she had wanted to go with him.  
12.	In evidence the Appellant, who was then 38 and had previous convictions not of a sexual nature, denied the allegations.  He said that there would have been no opportunity because C was sharing the bedroom.  He said that J behaved badly and he had to discipline her, telling her that she must change her ways or leave.  He said that he had suggested that J should wait to decide whether to go to Spain.  He alleged that J and her family had fabricated the allegations to prevent the move to Spain.  He suggested that J had fabricated her evidence about the blood.
13.	In cross-examination J denied that any wish to be taken to Spain had caused her to fabricate the allegations.
14.	C, in evidence by television link, confirmed that the bed made a lot of noise.  She said she woke easily.  She could recall only one occasion when the Appellant and J were alone together.  She had never seen any inappropriate conduct.
15.	The single judge refused leave to appeal against conviction.  The Full Court subsequently granted leave on a ground relating to the refusal to permit cross-examination and/or evidence of allegedly false allegations by J.  Leave was refused on the ground relating to the refusal of a submission of no case to answer.  Other grounds were referred to the Full Court.  
16.	Mr.Grey, Counsel for the Appellant, who was not Counsel at the trial, helpfully crystallised the grounds of appeal on which he sought to rely.  They are all complaints that the Defence should have been permitted to cross-examine J about what she had previously said about three matters and, if appropriate, to call evidence about what she had said.  We can conveniently describe them as the Lymington incident, the McDonald’s incident and the teacher incident.
17.	 The first two incidents were allegedly of a sexual nature and should have required consideration of section 41 of the Youth Justice and Criminal Justice Act 1999.  In fact all three matters were considered as requiring leave under section 100 of the Criminal Justice Act 2003.
18.	Section 41, so far as now relevant, reads:
“(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 leave unless it is satisfied – 
	       (a) that subsection (3) … 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 if the evidence or question relates to a relevant issue in the case and …
	(a) that issue is not as issue of consent; …
	…
(4)       For the purposes of subsection (3) no evidence or question shall be regarded as relating to an issue in the case if it appears to the court to be reasonable to assume that 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.”

19.	“Sexual behaviour” is defined in section 42(1)(c) and it
“means any sexual behaviour or other sexual experience  ...”.
20.	It is clear from the extended definition and from R. v. BT and MH [2002] 1 Cr.App.R. 294 that “sexual behaviour” includes a situation in which the complainant is the victim of a sexual offence but does not herself do anything.  See also R. v. ADC and JB [2003] EWCA Crim 29 and R. v. E [2005] Crim L.R. 227.  
21.	However, BT and MH decided that cross-examination genuinely directed towards establishing that the complainant has made a previous false complaint about a sexual matter is outside section 41, if it goes to the lies rather than to the sexual behaviour itself.  However, the Defence must, if such cross-examination is to be permitted, have a proper evidential basis for asserting that the previous statement was made and that it was untrue.
22.	We turn to section 100 of the 2003 Act, which limits the admissibility of evidence of the bad character of a witness.  In the absence of agreement under section 100(1)(c), the court’s leave is required under section 100(4).  The criteria  for admissibility in the absence of agreement are set out in section 100 as follows:
“(1) In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if –
	 (a) it is important explanatory evidence, [or]
     (b) it has substantial probative importance in relation to a matter which – 
		(i) is a matter in issue in the proceedings, and
  (ii) is of substantial importance in the context of the case as a
   whole …”.

23.	Section 100(2) and (3) set out guidance for the court when applying section 100(1).  Although cross-examination is not mentioned in terms, it cannot be doubted that leave must be sought to cross-examine about matters of bad character.  
24.	Evidence of bad character is defined as “evidence of, or of a disposition towards, misconduct on his part”, subject to exceptions not relevant here: section 98.  “Misconduct” means the commission of an offence or other reprehensible behaviour”: section 112(1).
25.	We point out that cross-examination about an allegedly false sexual allegation may require a ruling in relation to section 41 as well as leave under section 100.  In many cases section 41 will be the more formidable obstacle to overcome.
26.	We turn to the three incidents.  Police records disclosed to the Defence showed that the complainant had told her mother in March 2004 that in June 2003 she had been grabbed by a man in Lymington and taken down an alleyway. The man held a knife to her throat, threatened her and put his fingers inside her knickers.  Her mother then reported the matter to the police, but the complainant was verbally aggressive towards her mother for telling the police about it.  She was not prepared to assist the police in their inquiries in any way. The police filed the matter as undetected.
27.	Application was made in advance of the trial under section 100 to His Honour Judge Griffiths.  Although section 41 (erroneously recorded as section 51) was referred to in the course of submissions, the learned judge in fact ruled under section 100 that there was no evidence that the allegation was false and he refused leave.
28.	It was submitted to us by Mr.Grey that the learned judge was wrong not to conclude that the refusal to cooperate with the police was sufficient evidence that the allegation was false.  He referred to R. v. Garaxo [2005] EWCA Crim 1170, where this court concluded that on the facts a failure to cooperate was some evidence of falsity.  In our view a failure to cooperate may or may not justify a conclusion that an allegation is false, depending on the circumstances.
29.	However, it is unnecessary to consider that aspect further.  By the time of the trial, the Defence had a video interview in which C said that the complainant had told her that the complaint was false.  In that light the application was renewed before the Recorder.  He ruled that Lord Denman’s Act (Criminal Procedure Act 1865) did not 
“extend far enough to permit the defence to set [J] up by questioning her about the conversation with [C] and then if she does not admit what is put to her calling [C] to prove the inconsistent statement.  It seems to me there is no way the Crown are going to make that matter part of their case, they cannot, it is completely irrelevant to the present case, and in those circumstances it seems to me plain that that form of cross-examination is not permissible either”.

30.	Although we have no transcript of the submissions, it seems that Judge Brodrick was not invited to consider section 41 or BT and MH.   However, we are prepared to approach this issue on the basis on which it ought to have been approached at trial.
31.	We consider that by the time of trial, in the light of the available evidence from C, there was a sufficient evidential basis for asserting that the Lymington complaint was untrue.  In our view it passed the test for leave under section 100.  Cross-examination should have been permitted.
32.	If J had denied the alleged admission to C, section 4 of Lord Denman’s Act required consideration.  It reads:
“If a witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the indictment or proceeding, and inconsistent with his present testimony, does not distinctly admit that he had made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement”.

33.	Mr.Weston on behalf of the Crown submitted that the learned judge was correct in concluding that Lord Denman’s Act did not enable the Defence to ask C about the alleged admission to her.  He referred us to passages in ADC and JB, to which Judge Brodrick was referred, which indicated that evidence of the making of complaints, denied by witnesses, could not be called under section 4 or 5 of the 1865 Act.  We find those passages, with respect, difficult to follow.  If the denied statement is one “relative to the subject-matter of the indictment or the proceeding”, as it would be if cross-examination were permitted, it appears to us to be a classic situation for the deployment of section 4.
34.	C in fact gave evidence at trial, called by the Defence.  Her attitude seems to have been favourable to the Appellant and there is no reason to suppose that she would not have confirmed what she said in her video interview.
35.	We conclude that Defence counsel should have been permitted to cross-examine J about the Lymington incident and that if J had denied admitting the falsity of the allegation, counsel should have been permitted to elicit that evidence from C.
36.	We turn next to the McDonald’s incident.  On 20 November 2004 police officers found J and E at Brockenhurst Station in the waiting room.  They were screaming and behaving as if they were drunk, although no smell of drink was detected.  They later told police officers that they had gone together to McDonald’s for something to eat and for a milkshake and then to a leisure centre and a cinema.  They later felt “really funny” and were giggly, as if they had been drinking.  There was a period of time they could not account for.  They said that there was some discharge in their pants as if they had been touched up.  Nothing untoward was found when they were medically examined. Their clothing was not examined.  The police considered whether something could have been administered to the two girls, but concluded that there had been “no crime”.
37.	This incident was also the subject of an application to Judge Griffiths for leave under section 100.  He concluded that there was no evidence of a false allegation.  The application was not renewed before the trial judge.
38.	The alleged significance of this incident was that it was a false sexual allegation.  We consider that section 41 required consideration. However, although this was a very odd episode, there was in our view no proper evidential basis for asserting that it was a false sexual allegation.  Indeed, the list of proposed questions supplied to us indicates that it would have been suggested to J that she had “also imagined” this incident.  In the absence of any proper evidential basis, any cross-examination fell foul of section 41(3)(a) and (4).
39.	Mr.Grey submitted to us that it would also have been important to ask J why, if she was complaining to police officers in November 2004 about this incident, she did not take the opportunity to complain about what her father had been doing to her.  However, although some neutral explanation to the jury about why the complainant was in touch with the police might have been advisable, the substance of this piece of cross-examination required no leave from the judge.  The lack of earlier complaint than was in fact made was a topic open to trial counsel and was a matter for him to approach in the way he thought fit.
40.	The teacher incident was the subject of an application under section 100 to Judge Brodrick and had no sexual aspect.  On 21 November 2003 J had been overheard asserting to two other pupils at school that a teacher had hit her.  The teacher who overheard this invited her to explain.  She admitted that she had been misbehaving and been sent out of the room.  She said that the teacher stopped her by putting his arm out, but then pushed her back with his arm.  Later she conceded that there had been no push, merely contact with the teacher’s arm.  
41.	We are inclined to doubt whether a piece of exaggeration to fellow pupils after some everyday classroom misbehaviour attains the level of “reprehensible” behaviour envisaged in section 112(1), read with section 98, of the Criminal Justice Act 2003.  If it was, we consider that the judge was justified in ruling, as he did, that it did not have “substantial probative value” for the purposes of the test in section 100(1)(b).  If it was not, leave was not required, but we do not think any cross-examination on these lines would have taken the Appellant’s case any further.  The jury learned that J had been excluded from school and this incident would have added nothing of significance.
42.	Thus in relation to the McDonald’s and the teacher incidents, we conclude that the Appellant is not entitled to complain about the effect of the rulings made.  We return to the Lymington incident, about which we consider the ruling was in error.  We recognise that this was a case in which the credibility of the complainant and the Appellant was crucial.  However, the jury in fact knew both that the complainant had some sexual experience and that she did not always behave well.  We do not consider that a false allegation (if that is what the jury decided it was), made to her mother and not pursued with the police, would have altered the jury’s conclusion.  We conclude that the convictions are safe.  In so far as the grounds now pursued fall outside the leave granted, we refuse leave, and we dismiss the appeal.