S, R v [2009] EWCA Crim 2457

Case No 2008/06041/D2[2009] EWCA Crim 2457IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Crown Court at Southwark
H.H.J. Wadsworth Q.C
T20087041
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/11/2009
Before
LORD JUSTICE AIKENSMR JUSTICE PENRY-DAVEYMRS JUSTICE SHARP DBE
Between
RRespondentSAppellant
Miss Kate Bex for AppellantMr Jonathan Davies for RespondentHearing Hearing date : 4th November 2009
JudgmentLord Justice Aikens :
[1]This appeal concerns “non – defendant bad character” evidence and raises arguments concerning various sections in Chapter 1 of Part II of the Criminal Justice Act 2003 (“the 2003 Act”). The appellant, who is now 53, faced one count of sexual assault (count 1) and one count of rape (count 2) against the complainant, Ms FH, who is nearly 20 years younger than him. Following a six day trial before HHJ Wadsworth QC and a jury in the Crown Court at Southwark, during which the appellant did not give evidence, the jury, by a majority, convicted the appellant of rape. The jury retired again and then acquitted the appellant of sexual assault. On 10 November 2008 the trial judge sentenced the appellant to 5 years imprisonment.[2]We heard argument on the appeal on Wednesday 4 November 2009 and reserved judgment. For the reasons set out below, we allow the appeal.

The Facts

[3]We can set out the facts of the case briefly. Both the appellant and the complainant were, in late 2007, single parents of young children. Two sons were in the same class at a primary school in West London. The complainant and the appellant knew one another, although the extent of their acquaintance was in dispute at the trial. That issue is not relevant to this appeal. The complainant’s evidence was that she had been celibate for eight years prior to these incidents.[4]On 13 December 2007 the complainant underwent a cystoscopy of the bladder in hospital. This procedure, under a general anaesthetic, involves the insertion of a tube into the patient’s urethra. The evidence of the surgeon was that medical advice with regards to sexual intercourse after the procedure was a matter for the patient, although it could be painful. But the complainant’s evidence was that she clearly understood she should refrain from sexual activity afterwards.[5]On the morning of 14 December 2007 the complainant and the appellant saw each other as they dropped off their children at school. The appellant and the complainant then drove together in the appellant’s car to Richmond Park. The prosecution case at the trial was that the appellant sexually assaulted the complainant by kissing her and placing his hand on her chest whilst they were in the appellant’s parked car in the park. The appellant accepted that he did those things but he said that it was with the consent of the complainant. That was the charge of which he was acquitted by the jury.[6]The appellant then drove the complainant back to his flat in North London. (There was a dispute on why they went there). The complainant alleged that in his flat the appellant had sexual intercourse with her without her consent: ie. he raped her. The appellant’s case was that they did have sexual intercourse but it was consensual. As we have noted, the jury convicted the appellant of rape.[7]After the incident at the appellant’s flat, he drove her to the primary school to collect her children. They sat in the car together for about 15 minutes whilst waiting for the children to come out of school. The following day the complainant sent a text to a female friend and later that day told her what had happened the previous day. On 17 December the complainant saw the ex – partner of the appellant and informed her of the rape incident. The two went to a clinic which referred the complainant to another clinic, which she attended on 19 December. There the complainant was externally and internally examined. The doctor noted bruising on the inner side of both legs and one bruise in the right armpit. The doctor said that she could not state the age of the bruises nor could she attribute a specific cause for them.[8]Between 14 and 21 December 2007 there were numerous telephone contacts between the appellant and Ms FH, in the form of conversations and text messages. The judge ruled that the details of the text messages should not be admitted in evidence, although the fact that text messages were exchanged was in evidence. That ruling is not in issue on this appeal.[9]The complainant reported the two matters to the police on 21 December 2007.

The application by the defence at the start of the trial

[10]On the first day of the trial, 7 October 2008, the defence served a form BC1, which was an application for leave to adduce evidence of a non – defendant’s bad character, pursuant to section 100 of the2003 Act. In section 3 of the form, which requires the applicant to set out details of the application, it stated: “[Ms Nancy Hayden-Smith] made a complaint to the police (CRIS 5610096/08) that the complainant was harassing her in an attempt to get her to support her against the defendant in the allegation of rape she has made. [The complainant] was warned by the police about her future conduct. [Mr Usman Dildar] was the subject of a false allegation by the complainant that he had made inappropriate sexual advances to her (CRIS 5806685/07). No action was taken against him on the basis that there was insufficient evidence”.[11]At the same time, the defence served a skeleton argument suggesting that to allow the trial to proceed would be an abuse of the process of the court. The judge ruled on that and no issue arises on that ruling on this appeal. The defence also applied for leave to cross examine the complainant on certain matters, pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA”). We have not seen any separate ruling on that issue, but that section is relevant to this appeal.[12]The prosecution objected to the introduction of the “non – defendant bad character” evidence and also submitted that the defence should be prohibited from cross examining the complainant on matters concerning either of the two people identified in the notice. The prosecution submitted that this material was irrelevant and/or it would result in “satellite litigation” and so unreasonably disrupt the trial.[13]The judge dealt with the application, notwithstanding that the notice of application to adduce a “non – defendant’s” bad character under section 100 of the2003 Act, should have been served within the time limits set out in the Criminal Procedure Rules Pt 35.2. Miss Kate Bex, who represented the appellant at the trial and has appeared on his behalf on this appeal, told us that the application was made so late because of late discovery by the prosecution of various CRIS reports made by the police. We have not been required to investigate whether that was so or whether the judge correctly exercised his power to vary the requirements of CPR Pt 35.2 pursuant to CPR Pt 35.8. But we wish to emphasise, once again, how important it is that all those involved in criminal trials recognise the importance of adhering to the letter and the spirit of the CPR, which have now been in operation for over four years.[14]On 8 October 2008 the judge heard submissions on whether this evidence could be adduced. Miss Bex told the judge that once the CRIS reports had been read, the defence solicitors had taken statements (in section 9 format) from the two people referred to in the application notice BC1, viz. Ms Hayden – Smith and Mr Dildar. The solicitors had also taken a statement from Mr Dildar’s girlfriend, Ms Angela Bean. Miss Bex told the judge that she would not show the statements to the court at that point, because that would mean having to give them to the prosecution at the same time and she was not prepared to do so then. The judge did not object to this course, but we think that it was unfortunate that he was not shown the statements. At the hearing of the appeal, we urged Miss Bex to show us the statements and she did so and gave copies to Mr Davies, who appeared for the Crown on the appeal, as he did at the trial. The statements of the potential witnesses.[15]Ms Hayden – Smith’s statement says that she was, at the time, the parent of a child at the same primary school as the appellant’s and the complainant’s children. She had known the appellant for a number of years and regarded him as a good friend. On 28 January 2008, that is about six weeks after the incidents giving rise to the counts on the indictment, Miss Hayden – Smith received a text message from Ms FH, which is set out in the statement. In the next week several more text messages were sent to Ms Hayden – Smith by Ms FH. Ms Hayden – Smith regarded them as odd because the two women had not met before nor talked to one another. The statement says that on 1 February 2008, Ms FH rang Ms Hayden – Smith, who said that she did not wish to speak to Ms FH. The statement says that Ms Hayden – Smith sought advice from the Citizen’s Advice Bureau and she was advised to tell the primary school about the matters. She did so in an email on 3 February 2008.[16]The next incident was on 16 May 2008, (ie. 5 months after the events the subject of the charges), when the two women were collecting their children from school. The statement says that Ms FH said that they must talk and that Ms Hayden – Smith must “hear my side of the story”. Ms Hayden – Smith said that she did not wish to be involved. Ms Hayden – Smith also became concerned because, she said, Ms FH’s children were questioning her own children on various matters.[17]Ms Hayden – Smith decided to report these matters to the headmaster of the school. Then, about one week later, on 27 May 2008, she went to the police and talked to a female officer. Subsequently the officer told Ms Hayden – Smith that Ms FH was given “a harassment warning”.[18]The CRIS report states that the police did speak to Ms FH, who denied “harassing” Ms Hayden – Smith. The CRIS report also states that both women were advised to keep away from one another and not to talk to one another because “the serious assault case is still ongoing and of course can implicate witness intimidation”.[19]Mr Dildar’s statement says that he is a martial arts teacher who has established a Taekwondo Academy with many branches throughout the UK. He teaches children. Ms FH’s children frequently attended his classes at one of the Academy’s branches in West London. The statement said that Mr Dildar had first met Ms FH in late 2005. Ms FH often attended the classes. The statement said that on 6 June 2007, one of Ms FH’s sons had to be disciplined by a teacher at the Academy, who happened to be Mr Dildar’s brother. On 13 June there was an incident with Ms FH’s other son, which meant that he had to be disciplined, that time by Mr Dildar himself. Mr Dildar explained the reasons to Ms FH. The statement says that later that evening Ms FH sent a text to Mr Dildar’s girlfriend, Ms Bean, saying that her son was very upset. The following day Ms FH attended the class where Mr Dildar was teaching her sons and she burst out crying. Mr Dildar went to investigate but she stopped and said she was fine. This sequence was repeated twice and on the second occasion Mr Dildar said to Ms FH:
“oh, you’re such a drama queen”
. Then Ms Bean escorted Ms FH out of the class. After the class there was a discussion between Mr Dildar and Ms FH at which Ms Bean was present.[20]The CRIS report states that at 1300 hours on 15 June 2007 Ms FH had reported to the police that “around Easter time [Ms FH] shunned advances made to her by her sons’ martial arts instructor at the West Acton Community Centre in Acton. These advances were in the form of “undressing her with his eyes and licking his lips”. [Ms FH] just looked away when he did this. He did this about half a dozen times over a few weeks….[Mr Dildar] was never inappropriate in any other way”. The CRIS report referred to events concerning Ms FH’s sons on 6 June and 13 June 2007. It stated that Mr Dildar had shouted at Ms FH to get out of the class on 14 June. The report continues: “[Ms FH] does not know why [Mr Dildar] is so angry nor did [Ms Bean]. [Ms FH] believes that he is shouting at her children in order to get at her because she has spurned his advances. [Mr Dildar] denied his behaviour”.[21]The CRIS report also states that Ms FH told the police that on 15 June 2007 at about 0845 she saw a pile of faeces on the front door step of the communal doorway as she left the building where she lived. The report continues:
“[Ms FH] believes that this is a message to her from [Mr Dildar] as some sort of threat to her safety….Throughout the past few weeks [Ms FH] has been getting the impression that she is being threatened by [Mr Dildar] even though it is nothing direct”
. The CRIS report notes that a police officer had considered the matter and decided that there was insufficient evidence to proceed with the allegation against Mr Dildar. The police spoke to Ms FH, the report states, and the report says that she specifically requested the police not to investigate the matter further and “…[Ms FH] just wanted everything recorded in case something else happens”. It will be noted that there is no reference in Section 3 of the Form BC1 to the “faeces incident”.[22]Mr Dildar’s statement says that he was aware that Ms FH had reported him to the police regarding the incident at the Academy on 14 June 2007. He denied her allegations about that incident. The statement does not specifically address the allegation of “undressing” with eyes and lips. However, it does say that she lied about him. The statement expressly denies that Mr Dildar had anything to do with faeces on Ms FH’s doorstep.[23]The statement of Ms Bean states that she received a text message from Ms FH late on 13 June, asking if Ms FH could talk to Mr Dildar. The statement also deals with the incident in Mr Dildar’s martial arts class on 14 June 2007.[24]Miss Bex told us that she submitted to the judge that she was only making the application in respect of the material relating to Ms Hayden-Smith as a precautionary measure. Her primary submission to him was that she did not need leave to cross – examine the complainant about that material, nor did she need leave to call Ms Hayden – Smith because that material fell within the ambit of section 98(a) or (b) of the 2003 Act. The Judge’s ruling on the “bad character” evidence.[25]The judge commented that, from what he had been told of the content of the statements, they did not accurately précis what was in the CRIS reports. The judge noted that the sole live issue in the trial appeared, at that point, to be “actual consent”. He had no doubt that the complainant’s credibility would be an issue in the proceedings. He impliedly ruled that the evidence of both Ms Hayden-Smith and that of Mr Dildar would constitute “non – defendant bad character” evidence for the purposes of Ch 1 of Part II of the2003 Act. He effectively ruled that the evidence in the statements to which Ms Bex referred constituted evidence “in relation to a matter in issue in the proceedings” for the purposes of section 100(1)(b)(i) of the 2003 Act. However, he held that, for the purposes of the same section, the evidence did not have “substantial probative value” in relation to any matter in issue in the trial. He held that those matters were “too far away from the issues that the jury had to decide” and might well form a “dangerous distraction to the matters” that the jury had to decide: ruling page 7G – 8A. He therefore held that the requirements of section 100 of the 2003 Act had not been fulfilled and so the matters could not be adduced in evidence either by way of cross – examination of the complainant or by calling witnesses.[26]The trial then continued. The sole issue on both the sexual assault and the rape charges was indeed that of actual consent. Essentially the jury had to decide whether it believed the complainant’s evidence or not. On the facts of this case, as in so many rape cases where the parties know one another and the issue is consent, the credibility of the complainant and, indeed, that of the appellant, were therefore central to the case.

The ground of appeal and the arguments

[27]The single ground of appeal is that the judge was wrong to rule that the defence could not adduce the evidence of the three witnesses who had given statements and to hold that the complainant could not be cross examined on the facts raised in those statements and the CRIS reports. Miss Bex makes the following points. First, she submits that the evidence of Ms Hayden-Smith does not fall within the definition of “bad character” evidence in accordance with sections 98 and 112 of the2003 Act, so is not covered by the provisions of section 100 at all. That is, she submits, because the evidence of Ms Hayden-Smith is either to do with the alleged facts of the offence with which the appellant was charged (section 98(a)) or is evidence of misconduct in relation to the investigation or prosecution of that offence: (section 98(b)). Secondly, she submits that the judge was wrong to hold that the evidence of Ms Hayden-Smith, Mr Dildar and Ms Bean was not of “substantial probative value in relation to a matter in issue in the proceedings”, viz. the credibility of the complainant’s evidence that the sexual behaviour in Richmond Park and the sexual intercourse in the appellant’s flat took place without consent. Thirdly, she submits that the judge was wrong to hold, either by considering the matters set out in section 100(3) of the 2003 Act, (if he did), or by virtue of some other discretion, that the evidence should not be admitted because they would be a distraction and would create distracting “satellite litigation”.[28]Mr Davies, for the Crown, submits, first, that the evidence of Ms Hayden-Smith does not come within either section 98(a) or (b) and is covered by the provisions of section 100. Secondly, whilst accepting that the credibility of the complainant is a matter in issue in the proceedings, he submits that none of the evidence has substantive probative value in relation to that issue. Lastly, he submits that the judge was right to rule that the evidence sought to be adduced “might well form a very dangerous distraction to the matters the jury had to decide” and so refuse its admission and refuse to allow cross examination of the complainant on those matters. The issues raised by the appeal.[29]The issues that are raised on this appeal are, therefore, as follows:(1) does the evidence of Ms Hayden-Smith fall within the ambit of section 98(a) or (b) of the 2003 Act.(2) Do the matters raised in the statements of Ms Hayden-Smith, (if not within section 98(a) or (b)), Mr Dildar and Ms Bean constitute “bad character evidence” within the definition given in the 2003 Act?(3) If some or all of it is, then does the evidence of the three witnesses relate to “a matter in issue in the proceedings” for the purposes of section 100(1)(b) of the2003 Act?(4) If some or all of it does, then was the judge wrong to rule that the evidence did not have “substantial probative value” in relation to a matter in issue in the proceedings, having regard to the factors set out in section 100(3) of the 2003 Act and any other relevant factors? (5) Does the evidence have “substantial probative value in relation to a matter which is of substantial importance in the context of the case as a whole” for the purposes of section 100(1)(b)(ii) of the 2003 Act, also having regard to section 100(3)? (6) If the answer to that question is “yes”, then is there any basis on which, either pursuant to section 41 of the Youth Justice and Criminal Evidence Act 1999 or otherwise, the judge could prevent the defence from adducing that evidence or preventing cross examination of the complainant on those matters? (7) In the light of the answers to the previous questions, was the conviction safe? The statutory provisions and some general points.[30]Sections 98, 99(1), 100, 109, and the definitions of “misconduct” and “probative value” and “relevant” in section 112 of Chapter 1 of Part II of the CJA 2003 are relevant to this appeal. They provide as follows:
“98. “Bad character”
References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which— (a) has to do with the alleged facts of the offence with which the defendant is charged, or (b) is evidence of misconduct in connection with the investigation or prosecution of that offence. 99. Abolition of common law rules (1) The common law rules governing the admissibility of evidence of bad character in criminal proceedings are abolished. ………. Persons other than defendants 100. Non-defendant’s bad character (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, (b) it has substantial probative value 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, or (c) all parties to the proceedings agree to the evidence being admissible. (2) For the purposes of subsection (1)(a) evidence is important explanatory evidence if— (a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and (b) its value for understanding the case as a whole is substantial. (3) In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant)— (a) the nature and number of the events, or other things, to which the evidence relates; (b) when those events or things are alleged to have happened or existed; (c) where— (i) the evidence is evidence of a person’s misconduct, and (ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; (d) where— (i) the evidence is evidence of a person’s misconduct, (ii) it is suggested that that person is also responsible for the misconduct charged, and (iii) the identity of the person responsible for the misconduct charged is disputed, the extent to which the evidence shows or tends to show that the same person was responsible each time. (4) Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court. …….. 109. Assumption of truth in assessment of relevance or probative value (1) Subject to subsection (2), a reference in this Chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true. (2) In assessing the relevance or probative value of an item of evidence for any purpose of this Chapter, a court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true. …….. 112. Interpretation of Chapter 1 (1) In this Chapter— …….. “misconduct” means the commission of an offence or other reprehensible behaviour; …….. “probative value”, and “relevant” (in relation to an item of evidence), are to be read in accordance with section 109; …….”.

Persons other than defendants

[31]Section 41(1) to (4) of the Youth Justice and Criminal Evidence Act 1999 (“the YJCEA 1999”) is also relevant to this appeal. That provides as follows: “41Restriction on evidence or questions about complainant’s sexual history(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 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.(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 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. ………”.[32]Section98 of the 2003 Act therefore defines the phrase “bad character” in terms of evidence of, or a propensity towards “misconduct”. Section 112 states that ““misconduct” means the commission of an offence or other reprehensible behaviour”. “Reprehensible behaviour” is not defined in the 2003 Act. However, in R v Renda [2006] 1 WLR 2948, Sir Igor Judge P, giving the judgment of the court, stated that as a matter of ordinary language the word “reprehensible” carried with it some element of “culpability or blameworthiness”: see paragraph 24.[33]The effect of section 98 is that certain types of “misconduct” are excluded from the statutory regime concerning the introduction of “bad character” evidence. As section 99 only abolishes the common law rules governing the admissibility of evidence of “bad character” as defined in the 2003 Act, it must follow that the common law rules on admissibility of evidence must still remain in force in respect of matters that fall within the scope of section 98(a) and (b).[34]In the context of this case it should be noted that section 112 also provides that “probative value” is to be read in accordance with section 109. That section states, in sub section (1), that references to probative value of evidence are made on the assumption that the evidence is true. However, that is subject to the provisions of section 109(2). Thus a court need not assume that such evidence is true for the purposes of assessing its probative value if it appears to the court that no court or jury could reasonably find it to be true.[35]In R v S (Andrew) [2007] 1 WLR 63, this court held that an issue as to the creditworthiness of a witness, including a complainant, is within the scope of the words “matter in issue in the proceedings” in section 100(1)(b)(i) of the 2003 Act. Laws LJ said, at paragraph 7 of the judgment of the court, that this conclusion must be right, since “otherwise it would never be possible to cross examine a witness as to his or her previous convictions in circumstances where the purpose of doing so was to demonstrate that that witness was unworthy of belief; but there are inevitably cases in which justice requires such a course to be taken”. The decision of this court in R v Weir and others [2006] 1 WLR 1885 at para 73 is to similar effect.[36]It appears that the judge, at least impliedly, accepted the proposition that “bad character” evidence concerning the creditworthiness of a witness, including a complainant, could be evidence of a “matter in issue in the proceedings” for the purposes of section 100(1)(b)(i) of the 2003 Act. But, whatever his conclusion, it is clear that, as a matter of law, it can do so. Consideration of the issues on the appeal.[37]Issue one: Would the evidence of Ms Hayden - Smith fall within the provisions relating to “bad character” evidence in section 98(a) or (b) of the 2003 Act?[38]It is plain that the matters to which Ms Hayden – Smith refers in her witness statement are not “to do with the alleged facts of the offence” within section 98(a). We have concluded that they are also not “evidence of misconduct in connection with the investigation or prosecution” of the offences of which the appellant was charged and so not within section 98(b). We accept, of course, that the events to which Ms Hayden – Smith’s statement refers all occurred during the time when the investigation and the prosecution of the offences was taking place. But that temporal connection is, in our view, not enough to come within the wording of section 98(b). The misconduct has to have some closer link with the actual investigation of the offences or with their actual prosecution. On the facts set out in the statement, there is no such connection. Therefore, the admission of the evidence of Ms Hayden – Smith is governed by the statutory regime of the 2003 Act.[39]Miss Bex accepted that the admission of the evidence of Mr Dildar and Ms Bean and the cross – examination of Ms FH on the matters raised in those statements were all governed by the statutory regime relating to “non – defendant bad character” evidence. It is clear from the decision of this court in R v V [2006] EWCA Crim 1901 at paragraph 23 that leave must be sought to cross – examine a witness about matters of “bad character”, even though cross – examination is not mentioned expressly in the statutory provisions concerning “bad character”.[40]Issue two: Do the matters raised in the statements of Ms Hayden-Smith, (not being within section 98(a) or (b)), Mr Dildar and Ms Bean constitute “bad character evidence” within the definition of the 2003 Act? The statement of Ms Hayden – Smith, taken together with the relevant CRIS reports, does not disclose the commission of any offence by Ms FH. Nor, in our view, does that evidence disclose any “reprehensible behaviour” on her part. The behaviour of Ms FH referred to in the statement and the CRIS reports concerning Ms Hayden – Smith’s complaint to the police can be characterised as irritating, inconvenient and upsetting to Ms Hayden-Smith. But, considered overall and in the context of the case, we have concluded that this does not show a sufficient element of culpability or blameworthiness to fall within the scope of “reprehensible behaviour” so as to constitute “misconduct” for the purposes of the 2003 Act. Nor does it demonstrate any “disposition towards misconduct”on the part of Ms FH.[41]Therefore, the evidence of Ms Hayden – Smith could not be adduced as “non defendant bad character” evidence under the provisions of the 2003 Act. That raises the question of whether it could have been introduced by some other means; and whether the complainant could have been cross-examined on those matters. In our view the answer to both those questions is: “no”. Evidence is only admissible in a criminal trial if relevant. The only possible relevance of that evidence or any cross examination of the complainant relating to it would be to impugn the complainant’s credibility. A judge has the power to prevent cross examination about a subject which can only go to the credit of a witness if the truth of the matter suggested would not, in his opinion, affect the credibility of the witness concerned: see Archbold, para 8 – 136; R v Sweet – Escott 55 Cr App R 316; ; R v Funderburk 90 Cr App R 466. In our view, the trial judge in this case would have been bound to rule that this evidence concerning Ms Hayden - Smith would not have affected the credibility of Ms FH in relation to the two charges of which the appellant was accused. Therefore he would have been bound to stop any cross examination of the complainant on those matters. It must follow that he would also have ruled that Ms Hayden’s Smith’s evidence was irrelevant to the issues in the proceedings, so could not be introduced.[42]We are satisfied that the material in the statement of Mr Dildar, when taken with the relevant CRIS reports, does constitute evidence of “bad character” of the complainant. Ms FH did complain to the police that Mr Dildar had made sexual advances to her which were unwanted by her. Ms FH also complained to the police that Mr Dildar had left faeces on the doorstep of the building in which she lived and she effectively accused him of harassing her. Mr Dildar says that all those allegations are lies. In assessing the relevance of the evidence of Mr Dildar for the purposes of the admission of “bad character” evidence, the court must assume that the evidence is true, unless no jury could reasonably find it to be true: section 109(1) and (2). In our view, on the material we have seen, the exception in section 109(2) does not apply here. Therefore, Mr Dildar’s evidence, together with that in the relevant CRIS reports, would show that Ms FH had made two false allegations against Mr Dildar to the police: one concerning sexual advances and one concerning the faeces, effectively alleging a kind of harassment. We think that, in the context of this case, this constitutes evidence of “reprehensible behaviour” on her part. Therefore the evidence of Mr Dildar, taken with the CRIS reports, would be “bad character” evidence within the terms of the 2003 Act.[43]Ms Bean’s evidence goes to support the truth of Mr Dildar’s accounts. That, too, would be “bad character” evidence.[44]Issue three: does the evidence of Mr Dildar and Ms Bean relate to a “matter in issue in the proceedings” within section 100(1)(a)? The answer to this question must be “yes”. The evidence relates to the issue of the complainant’s credibility. That was a key matter in issue in the proceedings.[45]Issue Four: was the judge wrong to rule that the evidence of Mr Dildar and Ms Bean did not have substantial probative value in relation to a matter in issue in the proceedings, bearing in mind the factors set out in section 100(3)? In the context of section 100 of the2003 Act, we think that the word “substantial” must mean that the evidence concerned has something more than trivial probative value but it is not necessarily of conclusive probative value. Section 100(3) stipulates that the court must have regard to the factors set out in paragraphs (a) to (d) of that subsection and any other relevant factors, in assessing the probative value of evidence for the purposes of section 100(1)(b). In R v Carr [2008] EWCA Crim 1283, Dyson LJ giving the judgment of the court, described a decision on whether to admit “non – defendant bad character” evidence as the exercise of a “discretion”. He said that the question for the Court of Appeal when such a decision was challenged was “whether the decision [the judge] made fell within the relatively generous band given to a judge exercising a discretion on whether or not to allow cross – examination in relation to bad character”: see paragraph 25. With respect, we would prefer to characterise the exercise that the judge has to perform under section 100 as one of judgment, taking into account all relevant factors, specifically those referred to in section 100(3). The judge must not take into account irrelevant factors. His judgment can also be attacked if it is clearly wrong.[46]Although the judge gave reasons for his ruling (as he was bound to do by virtue of section 110 of the 2003 Act), he did not specifically state in his ruling whether he had taken the section 100(3) factors into account in reaching his decision. This makes it difficult for this court to know whether he took in to account the factors set out in that section. We must do so, insofar as they are relevant, in order to see whether the judge was entitled to arrive at the decision he did.[47]The first factor is the “nature and number of events, or other things to which the evidence relates”. The evidence concerning Mr Dildar relates to two topics. The first is (on Mr Dildar’s evidence) that Ms FH made false allegations to the police against Mr Dildar that he made unwanted sexual advances although he never did anything “otherwise inappropriate”. The second is a false allegation to the police that, because Ms FH rebuffed those advances, he took retaliatory action against Ms FH’s sons by disciplining them in their martial art classes and by leaving faeces on the doorstep where Ms FH lived and this amounted to harassment.[48]The second factor is “when those events or things are alleged to have happened”. The answer is in about June 2007, some five to six months before the events giving rise to the charges.[49]The third factor set out in section 100(3)(c) is relevant if it is suggested that the evidence has probative value by reason of similarity between the misconduct evidenced by the “bad character” evidence and “other alleged misconduct”. If that is the case, then the court must consider the nature and extent of the similarities and dissimilarities. The only similarity that was argued by Miss Bex was that this “bad character” evidence showed that Ms FH was prepared to make false allegations against a male and one of those false allegations was of unwanted sexual advances. That was (on the defence case) similar to the false allegations of unlawful sexual conduct made against the appellant, although the nature of the alleged acts was obviously very different.[50]The factor set out in section 100(3)(d) does not apply in this case.[51]We bear in mind all those factors in deciding whether the judge was correct to rule that the evidence of Mr Dildar and Ms Bean did not have “substantial” probative value in relation to the matters identified in paragraphs (a) and (b) of section 100(1).[52]The judge did expressly take into account two other factors. The first was that there were “apparent differences” between the CRIS reports and the terms of the statements provided to the defence solicitors: Ruling page 5F. The judge was at a disadvantage because he did not see the statements themselves. We regard any differences as being of minor importance. There is no dispute on the key points, i.e. that the evidence disclosed that Ms FH alleged that Mr Dildar had made unwanted sexual advances and that allegation was false and that Ms FH alleged that Mr Dildar had left faeces on the doorstep and was harassing her and that that allegation was false.[53]The second factor the judge mentioned and on which he placed great weight was his view that the introduction of this evidence would form a very dangerous distraction to the jury and it would not give them any help. The judge was certainly entitled to regard this factor as another relevant factor for the purposes of section 100(3), and so take it into account in deciding whether the proposed “non – defendant bad character” evidence had “substantial probative value”. That is clear from the judgment of Sir Christopher Rose V-P in R v Bovell, R v Carr [2005] EWCA Crim 1091, [2006] 2 Cr App R. 27 paragraph 22. However, the judge did not distinguish between the evidence concerning Ms Hayden – Smith and that concerning Mr Dildar. Given our view on the irrelevance of Ms Hayden – Smith’s evidence but the relevance of that of Mr Dildar and Ms Bean, we must conclude that the failure to distinguish between the three witnesses was an error on his part which entitles us to reassess the importance of this factor.[54]We recognise, as Mr Davies submitted, that the introduction of matters concerning Mr Dildar would have meant that the jury had to concentrate on issues other than the two events directly giving rise to the charges. However, this is not an infrequent occurrence in a sexual offences trial in which the credibility of the complainant and defendant is the central issue in the case. But in our view, the matters raised in Mr Dildar’s evidence cannot properly be characterised as “satellite litigation” in the sense that they were so divorced from the principal issue in the case, that they thereby lacked “substantial probative value” in the context of this case.[55]Evidence that the complainant had made false allegations against someone, particularly if the allegations were of sexual misconduct, even if not the defendant in the trial, can (if properly admissible consistent with section 41 of the YJPEA) often be powerful material in a trial of alleged sexual offences in which the key issue is the parties’ credibility. We accept, of course, that the events in this case concerned a different man, the alleged “sexual advances” were very different and the events concerning Mr Dildar took place some five to six months before the events resulting in the charges against the appellant. We also recognise that if the complainant’s evidence was that the allegations were true, the jury would have to decide who to believe. However, taking account of all the factors that we must, we have concluded that the judge was wrong to hold that the evidence of Mr Dildar and the supporting evidence of Ms Bean would not have been of “substantial” probative value in relation to the issue of the credibility of the complainant concerning the two charges against the appellant.[56]Issue Five: Does the evidence of Mr Dildar and Ms Bean have “substantial probative value in relation to a matter which is of substantial importance in the context of the case as a whole” for the purposes of section 100(1)(i)(b) of the 2003 Act? The judge did not deal with this as a separate point in his ruling. In reaching a conclusion on this issue, a court has to have regard to the factors identified in section 100(3) and any other relevant factors. We have had regard to all the factors that we have already set out above. We repeat the point we have already made, viz. that the judge did not distinguish between the evidence of Ms Hayden – Smith and that of Mr Dildar and Ms Bean. He did not, in our view, focus properly on the fact that, on Mr Dildar’s evidence and the CRIS reports, the complainant was making serious false allegations against him, in particular, she was making false allegations concerning conduct of a sexual nature. We have concluded that his evidence, together with that of Ms Bean, would have had substantial probative value in relation to a matter which was of substantial importance in the context of the case as a whole, viz. the central issue of the complainant’s credibility and therefore consent.[57]Issue Six: Is there any basis, either pursuant to section 41 of the YJPEA or as a matter of discretion that the judge could prevent the defence from adducing the evidence of Mr Dildar and Ms Bean or preventing the cross examination of the complainant on those issues? At this point we have to consider the relationship between section 100 of the 2003 Act and section 41 of the JYPEA. We have already set out the terms of the latter provision. Section 112(3)(b) of the 2003 Act states that nothing in Chapter 1of Part II of the 2003 Act “affects the exclusion of evidence under section 41 of the [YJPEA]…”. In R v BT, R v MH [2002] 1 WLR 632, this court dealt with the correct construction of section 41, and in particular section 41(4) of the YJPEA. The court held that false statements in the past by a complainant about sexual assaults are not statements “about any sexual behaviour of the complainant” within the terms of section 41(1) of the YJPEA. They relate to statements made in the past and they do not involve any investigation of the complainant’s sexual behaviour in relation to the events covered by the statement: see paragraphs 31 – 37, per Keene LJ.[58]The court also held in R v BT, R v MH that if the defence wishes to put questions in cross examination about alleged previous false allegations, or adduce evidence on that issue, it must seek a ruling from the judge that section 41 does not exclude them. A judge will only permit questions or allow that evidence to be adduced if there is a “proper evidential basis” for putting such questions: see paragraph 41. That phrase was explained by this court in R v Murray [2009] EWCA Crim 618 as meaning evidence on which the jury could be satisfied that the allegation was false. R v V [2006] EWCA Crim 1901 paragraph 35 establishes that, subject to the requirements of section 100 of the 2003 Act being satisfied, the defence may adduce evidence in rebuttal of a complainant’s assertion that the allegation made was true. We do not read the decision of this court in R v RD [2009] EWCA Crim 2137 as derogating from that principle. A court which has to consider whether there is a “proper evidential basis” has to examine carefully the actual or potential evidence before reaching such a conclusion.[59]It follows from the decision in R v BT, R v MH that even if the statutory provisions of section 100 of the 2003 Act are satisfied, so that the court would otherwise grant leave (under section 100(4)) to introduce “non – defendant bad character” evidence, if the material might fall foul of section 41 the defence must seek a ruling from the judge that section 41 does not exclude the “non – defendant bad character” evidence sought to be adduced. In R v V [2006] EWCA Crim 1901 at paragraph 25, Crane J, giving the judgment of the court, said that obtaining a ruling permitting cross examination and the introduction of evidence concerning a false allegation of sexual misconduct may be a “more formidable obstacle” than obtaining leave pursuant to section 100(4) of the 2003 Act.[60]In this case we were told that there was an application to the judge under section 41 of the YJPEA, but we understood that this did not relate to the allegedly false allegations against Mr Dildar. The judge does not refer to section 41 in his ruling on the admissibility of the “non-defendant bad character” evidence. Given the statements of principle in R v BT, R v MH , R v V and R v Murray to which we have referred, we have to consider whether there was a “sufficient evidential basis” on which the defence could put, in cross examination of the complainant, a case of false accusations of sexual misconduct by Mr Dildar. Such a ruling also had to be made in respect of the potential evidence from Mr Dildar and Ms Bean on that issue.[61]In our view there was a sufficient evidential basis, given the content of the CRIS report and the statements of Mr Dildar and Ms Bean. We conclude that the obstacle created by section 41 would have been overcome.[62]In our view the requirement in section 100(4) that the leave of the court must be obtained before “non defendant’s bad character” evidence can be adduced does not give the court any further general discretion on the admissibility of “non – defendant bad character” evidence to which section 100 of the 2003 Act applies.This is in contrast to the position concerning the defendant’s “bad character”, where there is a specific provision (section 101(3)), which gives the court an additional discretion when a defendant’s “bad character” evidence is sought to be adduced under two of the “gateways”. Therefore, insofar as the judge may have ruled out the evidence on the basis of a general discretion because the evidence was “too far away from what this jury has to decide” (Ruling page 8C), there was no such discretion to exercise. Either the evidence fulfilled the requirements of section 100 and those of section 41 of the YJPEA (where relevant) or it did not.[63]We have therefore concluded that the judge erred in his ruling. He should have permitted the evidence of Mr Dildar and Ms Bean to be put to the complainant in cross examination and permitted the defence to call those witnesses.[64]Issue Seven: In the light of the answers to the previous questions, was the conviction safe? Miss Bex submits that the evidence of those witnesses would have affected the jury’s consideration of the essential issue in the case, which was the credibility of Ms FH and would have affected the jury’s conclusion on the rape count. She notes that the jury acquitted the appellant on the sexual assault charge and took nine hours to reach a majority verdict on the rape charge.[65]Mr Davies, for the Crown, submits that the case against the appellant was strong and that the admission of this evidence could not reasonably have led to an acquittal on the rape charge. He points to the fact that the complainant gave evidence in person rather than by video link and was cross – examined thoroughly and at length. He emphasises the evidence of bruising which was consistent with the complainant’s evidence. He submits that the evidence that the complainant had had a cystoscopy only the day before the alleged rape was powerful support for the complainant’s evidence that she would not have had consensual sexual intercourse with the appellant. He points to her evidence that she had been celibate for eight years prior to these events. Mr Davies also emphasises the fact that the appellant did not give evidence.[66]Ultimately, this case turned on whether the jury accepted the evidence of the complainant. The jury obviously had doubts about her credibility in relation to the sexual assault charge and so acquitted the appellant on that count. Looking at the case as a whole, we feel compelled to accept the submission of Ms Bex that if cross examination of the complainant on the matters relating to Mr Dildar had been allowed and his evidence and that of Ms Bean had been admitted, it might reasonably have affected the decision of the jury to convict the appellant on the rape charge. Therefore, we must conclude that the conviction is unsafe. Conclusion.[67]For the reasons we have given, this appeal must be allowed.

Cited in 5 later judgments