R v YAW [2025] EWCA Crim 1143

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[2025] EWCA Crim 1143

Venue Royal Courts of Justice

Strand

London

WC2A 2LL

Date Wednesday 16 July 2025

Before

THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION

(LORD JUSTICE HOLROYDE)

MR JUSTICE CALVER

SIR NIGEL DAVIS

Between

REXCrown

Between

"YAW"

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MS G WHITE appeared for Appellant.

MR C WING appeared for Crown.

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JUDGMENT

(Approved)

THE VICE-PRESIDENT:

[1]With the leave of the single judge, the appellant appeals against his conviction for raping his daughter. His daughter (to whom we shall refer as "C") is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during her lifetime, no matter may be included in any publication if it is likely to lead members of the public to identify her as the victim of this offence. Given the familial relationship, that statutory protection of C would be defeated if the appellant were named in the report of this appeal. We have therefore directed that in listing this hearing, the appellant's name should be anonymised by using the randomly-chosen letters "YAW". We further direct in any report of this hearing the appellant must not be named or otherwise identified and must be referred to as "YAW". The Facts

[2]The appellant was tried in the Crown Court at Portsmouth before HHJ Newton Price KC and a jury.

[3]For present purposes, a brief summary of the facts is sufficient. C, aged 21 at the material time, went to her father's home to collect her younger brother. Her evidence was that she sat beside the appellant on a sofa and showed him some images on her phone. He then snatched the phone from her and scrolled through its contents, which included intimate images of C and her partner. C stated that the appellant thereafter grabbed her breast, kissed her, removed some of her clothing, touched her vagina, put his hand over her mouth and raped her vaginally from behind. C was able to use her mobile phone to make an audio recording. The recording, accepted to be genuine, lasted just under 4½ minutes and included C saying "No" 18 times, "Stop" four times and "Dad" six times.

[4]C's evidence was that she eventually managed to get away from the appellant. She promptly reported the rape to her partner, to a friend and then to the police.

[5]The appellant admitted having sexual intercourse with his daughter, and pleaded guilty to an offence contrary to section 64 of the Sexual Offences Act 2003 of sex with an adult relative. He pleaded not guilty to the charge of rape. His defence was that the sexual activity was consensual, that C had played an active and willing part in it, and that it had been of short duration because he had quickly realised that what they were doing was wrong. He accepted that C had said what was recorded on her phone, but asserted that her actions and reactions nonetheless showed consent or at least caused him honestly to believe that she was consenting. In due course he gave evidence to that effect.

[6]It was further the defence case that C had in the past made false or exaggerated allegations against others, and on one occasion had received £16,000 compensation from the Criminal Injuries Compensation Authority as a victim of a sexual offence. That latter fact was agreed, and was in evidence at the trial. The appellant wished to assert that C's evidence against him was a further false allegation, motivated by a wish to make money, or in an attempt to deflect blame, shame or embarrassment for conduct which made her also guilty of an offence contrary to section 64 of the 2003 Act. The Defence Application

[7]Ms White, representing the appellant at trial as she does in this court, applied pursuant to section 100 of the Criminal Justice Act 2003 to adduce evidence of what were said to be four occasions in the past when C had made false allegations of offences being committed against her. The judge refused the application. No challenge is now made to the ruling in relation to three of the occasions, and we need say nothing about them. We focus on the one allegation which is the subject of the ground of appeal.

[8]The appellant wished to adduce evidence and of what was contained in a police occurrence log, which related to an allegation of rape made in May 2018 by C (then aged 17) against the father of her young child. We shall refer to him as "X". The log included the following:(a) C reported to the police that X had come to the Mother and Baby Unit where she was residing and had there raped her.

(b) Entries in the log noted, however, that C's account had varied and that there were inconsistencies in what she had said about the circumstances of X's alleged offence, including as to whether there had been vaginal, oral or digital penetration. It was further noted in the log that when seen at a Sexual Assault Referral Centre, C had declined the offer of the morning after pill.

(c) A witness had told the police that he heard C arguing on the phone with X. We shall refer to this witness as "R". R reported that after the call C said to him: "Well, that's it then, I'm going to fuck him over. I've called the police, they're coming to take a report of rape. When they get here, can you wake me up."

(d) In phone conversations with her mother, C had initially not referred to the alleged rape by X and had denied that anything sexual had happened. C had later complained of the rape, but had given her mother inconsistent details about the date and location of it.

(e) There had also been inconsistencies in what C had said to her sister about the date and the location of the rape.

[9]The judge was assisted by helpful submissions from both counsel about the principles established by relevant case law. He accepted that, since the defence case was that C had made a false allegation of rape, the application was to be decided by reference to section 100 of the Criminal Justice Act 2003 and that section 41 of the Youth Justice and Criminal Evidence Act 1999 was not engaged.

[10]The judge rightly considered first whether there was some material on which the jury could properly conclude that C had made a false allegation against X. He accepted that the log showed inconsistencies in what C had said at various times, an absence of any complaint of rape when C first spoke to her mother, and an apparent expression to R of a wish to get back at X. The judge then said this:

"On the other side however, the factual context is one of an apparently violent and abusive relationship concerning a 17 year old complainant with a newborn baby and her partner. Complaints of sexual misconduct in that context are rarely consistent or complete or timely or made without rancour. I do not accept that the inconsistencies in her account or her delays in reporting or her remarks indicating anger towards her partner amount to a sufficient basis for concluding that her allegations were false. On the contrary, inconsistencies, late reporting and dislike of the alleged perpetrator are common features of many sexual allegations arising from such relationships, especially when the complainant is immature in age. I find that these features are not, whether by themselves or taken together, a basis for a proper conclusion that this could be a false allegation. Indeed, judges routinely direct juries to beware of false assumptions that late complaints or inconsistencies indicate that an allegation is false."

[11]The judge therefore refused the application on the basis that there was not material from which the jury could properly conclude that C's allegation against X was false. He added that, even if he had reached a different conclusion on that first issue, he would not have found that the allegation against X met the criterion in section 100(1)(b) of the Criminal Justice Act 2003 of substantial probative value in relation to the issues in the trial. The judge noted that there was no dispute in the present case that the appellant had had sexual intercourse with his daughter (then aged 21): he had admitted to doing so, and there was the audio recording in which C could be heard saying "No" and "Stop" repeatedly. The judge further noted that there was no allegation that C had made that up, and she had reported the incident immediately. The judge said that the jury would have to assess the respective accounts of father and daughter, assisted by that clear recording, in deciding the issues of consent and reasonable belief in consent which were the matters in issue in the case.

[12]The judge went on to say that he did not see how an allegation made by C when aged 17 against a former partner, in the context of an allegedly abusive but otherwise consensual relationship, could meet the test of substantial probative value in relation to this very different kind of incident. The Grounds of Appeal

[13]Ms White submits that the conviction is unsafe for two reasons: first, because the judge erred in concluding that there was not a proper and/or sufficient evidential basis from which it could properly be concluded that the previous allegations was false (ground 1); and secondly, because the judge erred in concluding that the evidence in relation to a false allegation of rape did not have substantial probative value in relation to the issues in the case, such that it was admissible under section 100(1) of the Criminal Justice Act 2003 (ground 2).

[14]As to the first ground, Ms White accepts that the jury would have to be properly directed as to how they should approach the issue of whether C had made a false allegation against X, and would have to be warned against making assumptions. She further accepts that inconsistency of accounts alone, or an expression of an apparent wish to get back at the alleged perpetrator alone, would not provide a sufficient basis. She submits, however, that the combination of inconsistencies in C's accounts to various other persons, and what she was reported as having said to R, could properly lead the jury to conclude that the allegation C had made against X was untrue. Ms White realistically accepts that the jury could reach a different view about those matters. But, she argues, if it be said that the material in the occurrence log is equivocal and could be interpreted in more than one way, it was nonetheless the position that the jury could properly conclude that the allegation was false.

[15]As to the second ground of appeal, Ms White emphasises that, notwithstanding the differing circumstances, C's allegation against X was one of non-consensual penetrative sexual activity. She argues that if the jury concluded that that allegation was false, it would show that C was willing to make a false allegation of such a serious nature against someone with whom she had a close relationship. That was a feature which the jury could properly have taken into account when deciding whether they were sure that C was telling the truth about the circumstances in which she had had sexual intercourse with the appellant.

[16]For the respondent, Mr Wing opposes the appeal, principally on the basis that he submits that the judge correctly applied the principles stated in the case law and reached a correct conclusion. Mr Wing submits that ground 1 should accordingly fail and the appeal consequently be dismissed.

[17]We are grateful to counsel for their submissions. The Legal Framework

[18]So far as is material for present purposes, section 100 of the Criminal

Justice Act 2003 provides:

"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— ... (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 ... (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..."

[19]Section 41 of the 1999 Act restricts evidence or questioning about a complainant's sexual history.

[20]The principles to be applied when considering whether to admit evidence of what is said to be a previous false allegation by the complainant in a sexual case are not in dispute between the parties. They have very recently been considered by this court, differently constituted, in R v Hurley

[2025] EWCA Crim 642

. At [49] of the judgment in that case the court conveniently summarised the effect of the authorities as follows:

"49 Drawing the threads together, the current position may be explained in the following seven propositions: i) Evidence that a complainant has made false complaints of rape on occasions other than those on the indictment is always non-defendant bad character evidence for the purposes of section 100 because it is evidence of misconduct as defined in section 112(1) of the 2003 Act as 'the commission of an offence or other reprehensible behaviour'. ii) Therefore, its admissibility requires meeting the enhanced relevance test under section 100(1)(b) of the Criminal Justice Act 2003, which mandates that (1) the evidence must have substantial (but not necessarily conclusive) probative value in relation to Y's credibility; and (2) such credibility must be a matter in issue of substantial importance in the proceedings as a whole. iii) False complaints where the complainant claims to be the victim of other sexual offending will engage section 41 of the Youth Justice and Criminal Evidence Act 1999 if the evidence is 'about' the complainant's 'sexual behaviour' for section 41 purposes. Where the questioning is not about any sexual activity of the complainant, but about what the complainant said, then section 41 will not be engaged and the admissibility issue will be resolved applying section 100. In the paradigm case there may have been no sexual behaviour involving the complainant at all, simply a false assertion that there had been. In other cases, as we shall see, this clear distinction may become harder to sustain. This is important because if section 41 is engaged at all, section 41(4) may often exclude this kind of evidence. iv) Before section 41 can be avoided on this basis, there must be 'a proper evidential basis' for concluding that the complaint was false (R v RD [2009] EWCA Crim 2137; R v AM [2009] EWCA Crim 618). v) The 'proper evidential basis' can be less than a strong factual foundation indicative of falsity. It must, however, have substantial probative value in relation to a matter in issue and be of substantial importance in the context of the case as a whole, otherwise it will be inadmissible because of section 100 CJA 2003. vi) Whether applying section 41 or section 100, the admissibility decision will be highly fact-specific, and it is neither possible nor desirable to delimit or prescribe the circumstances in which the test will be met in any individual case. vii) When determining whether the admissibility test is satisfied, the court is not exercising a discretion but making an evaluation about the quality of the evidence."

[21]We respectfully agree with, and endorse, those propositions. We would add a word about what was said in the judgment of the court in R v AM. At [22] the court said this:

"The difficulty lies in what constitutes a proper evidential basis. In our judgment, it is less than a strong factual foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false."

We emphasise the reference to a "proper" conclusion that the previous complaint was false being open to a jury. Analysis

[22]Ms White submits that the effect of the case law is that a judge considering an application of this nature should not set the bar too high. We agree. But nor should the judge set the bar too low. It is important for the trial judge, who has the feel of the case better than anyone else, to evaluate whether there really is a sufficient basis for the jury properly to find that a previous complaint was false. Merely to say that the jury might come to that decision may not of itself be sufficient. Furthermore, the judge in deciding this issue must bear in mind that the proposed cross-examination of the complainant will necessarily be questioning as to credit and directed to a collateral issue. On ordinary principles therefore, the answer given by the witness will be final. That being so, it seems to us that there is a need for caution before introducing into a trial satellite issues for which there is no real foundation in the relevant evidence or other material.

[23]Turning to the specific circumstances of this case and considering first ground 1, the application made on behalf of the appellant relied on a police occurrence log. Shorn, as it must be, of entries amounting to comment or implied statement of opinion by whoever compiled the log, the basis of the proposed cross-examination of C was a number of hearsay reports as to inconsistent statements said to have been made by C, and a hearsay report of a remark to R which was said to indicate a desire to make a false allegation against X. As the judge observed, in the context of a young complainant reporting an offence by a partner or former partner, inconsistencies, late reporting and dislike of the alleged offender may be common features. The remark to R, even if accurately reported, could be said to indicate a desire to see X pay for a crime he had committed. The log did not include any indication that C herself had at any stage said, or even hinted, that her allegation of rape by X was untrue. Nor did it include any indication of X being questioned about the allegation. In those circumstances, it seems to us that there was a substantial element of circularity of reasoning in the appellant's application: the assertion that C had made a false allegation was based on nothing more than statements by C which were said to be consistent with falsehood, but could also be said to be consistent with a true allegation.

[24]The judge, as we have indicated, recognised that the appellant did not have to prove falsity in order to succeed in his application, but that there did have to be material which was capable of founding a proper inference that C's earlier allegation against X was false. The judge's task was to evaluate all the relevant material in order to decide whether the contents of the log satisfied that test. In R v Conn

[2018] EWCA Crim 1752

, it was said at [36] that:

"As in all such matters of evaluation, considerable deference will be given to the trial judge's view."

We emphasise that important point. Having regard to the trial judge's feel for a case, we take the view that this court should be slow to interfere with the judge's evaluation of the evidence.

[25]Here, the judge clearly did consider all the relevant material. He directed himself correctly. In the passage which we have quoted from his ruling at paragraph 15, he correctly considered whether the material did provide a basis for a proper conclusion that the allegation against X was false, and he rightly took into account the directions which would have to be given to the jury. In our judgment, his evaluation of the available material cannot be said to have been wrong. The judge reached his conclusion on an appropriate evaluation of that material.

[26]Ground 1 accordingly fails. As was recognised by counsel, ground 2 therefore does not arise and we do not think it appropriate to say more about it. We are therefore satisfied that the appellant's conviction is safe. His appeal accordingly fails and is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk