Michael Hurley v R [2025] EWCA Crim 642

[2025] EWCA Crim 642

Case No 202401889 B3

IN THE COURT OF APPEAL, CRIMINAL DIVISION

ON APPEAL FROM THE LIVERPOOL CROWN COURT

HHJ GOLDSTONE KC

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 16/05/2025

Before

LORD JUSTICE EDIS

MR JUSTICE MARTIN SPENCER

MR JUSTICE DEXTER DIAS

Between

MICHAEL HURLEYAppellant

THE KINGRespondent

James Martin (assigned by the Registrar of Criminal Appeals) for Appellant

Sarah Jones KC (instructed by CPS Appeals and Review Unit) for Respondent

Hearing Hearing date: 6 March 2025

APPROVED JUDGMENT

This judgment was handed down remotely at 10:30am on 16 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. [See para.2.1 of the Practical Guide to Reporting Restrictions in CACD]. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.

The issue

[1]This appeal involves the proper approach to evidence of allegedly false complaints of sexual and other offences made by a complainant concerning occasions other than those relied on by the prosecution in the trial. In this case, allegations of sexual offending, said to have been false, had been made by the complainant (“Y”) against people other than the defendant. This question concerns the proper application of section 41 of the Youth Justice and Criminal Evidence Act 1999 (“section 41”) and section 100 of the Criminal Justice Act 2003 (“section 100”). Section 41 deals with evidence about the sexual behaviour of the complainant, and section 100 with evidence of bad character of persons other than the defendant. These key provisions are set out in an appendix at the end of this judgment for ease of reference.

Introduction

[2]On 23 March 2016, following a trial at Liverpool Crown Court before HHJ Goldstone KC and a jury, the appellant, Michael Hurley, was convicted on an indictment containing two counts contrary to the Sexual Offences Act 2003: assault by penetration (count 1) and rape (count 2). He was sentenced to a total of 7 years’ imprisonment. In 2018, his application for leave to appeal against those convictions was dismissed by this court. In 2020, the appellant made an application to the Criminal Cases Review Commission (“CCRC”). The case returns to the court as a result of the CCRC’s reference under section 9(1) of the Criminal Appeals Act 1995 (“the 1995 Act”).

[3]The essential basis of the CCRC’s reference is that it has identified material that raises concerns about the credibility and reliability of Y. Having considered section 23 of the Criminal Appeal Act 1968, the CCRC concludes that there is a real possibility that the Court of Appeal would admit the new evidence which would lead the court to conclude that the convictions are unsafe. The single ground of the reference is therefore:

“There is fresh evidence which undermines the credibility and/or reliability of the complainant … and thus gives rise to a real possibility that the Court of Appeal would quash the convictions.”

[4]It will be necessary to go into further detail later, but to introduce the case, the evidence which caused the CCRC to refer this conviction to the Court of Appeal can be summarised in this way:- i) Evidence that between aged 17 and aged 19 Y complained of being raped on at least three occasions. These are said to be false complaints. A report of rape was certainly made to the police in 2004. This resulted in the “2004 Police Report”. This was almost certainly one of the complaints also reported to a doctor in 2014, a decade later. These are recorded in a discharge summary contained in Y’s GP records, the “2014 GP Note”. The 2004 Police Report and the 2014 GP Note are the only documents relating to rape allegations made by Y before the trial in 2016. In the 2014 GP Note two complaints were recorded of rape by a stranger, and one complaint of a rape by her then boyfriend and his friends. They were reported to have happened when she was 17, 18 and 19 years old, that is in about 2002, 2003 and 2004. The allegations were made about unnamed and (otherwise than in the case of the then boyfriend and perhaps his friends) unknown people. The one which generated the 2004 Police Report was not pursued after an encounter with the police which generated criticism from Ms. Jones KC, for the prosecution before us, who observed that such a response to a complaint of rape by a vulnerable young woman would not be expected now. What is clear from the police record is that although Y said she did not wish to pursue the complaint, she continued to assert that she had been raped by, it seems, a stranger in a public place. ii) Evidence of allegedly false allegations of domestic violence by her partner, and later husband, “H”, during their relationship. The evidence of these comes from police records. There were incidents in 2011, 2013, 2014 and one in August 2016. This last was after the trial in which the appellant was convicted on 23 March 2016. The 2013 incident was referred to in their evidence at the trial by both Y and H (who was also a prosecution witness). The jury was told that H had been excluded from the home they had shared after she had reported an argument to the police and “he was no longer allowed to live with her in that rented property”, as the judge put it in summing up. The jury was not told about the 2011 incident. The police attended in 2011 and took photographs, presumably of injuries to Y, but she refused to make a statement and “only provided a negative statement”. The incident did not result in any charge, but Y never said that her complaint had been false. The 2014 attendance by the police followed a 999 call reporting an assault by H. The record says that when the police attended, Y “refuted the allegation” and said that she had panicked during a verbal argument. No injuries were seen, and again no further action was taken. In August 2016, after the trial, the police again attended and arrested H after Y said that he had attempted to strangle her and pushed her to the ground causing her to bang her head on the table. She told the doctor soon after this that she “was very drunk and got it completely wrong. He was only trying to hold her comfort her and she pushed herself off him and fell backwards”. H was never convicted of any offence of violence against Y. iii) Two allegations of rape by H, by then her husband, in 2016 and 2018. In the first one, H was never made aware that she had made the complaint. She told the police that she had been raped vaginally at 0600am on 20 December 2016 and described the clothing she had been wearing. She later said that she would not be making a report to the police and could not be sure that anything had happened. In another conversation she said that she was confused and was not sleeping and had been hearing voices. She said H would never do that to her after she had been raped by his uncle (a reference to the appellant). It is clear from the medical records that she was reacting at this time to the stress of the trial and also from the fact that her brother died at around the same time. In a “retraction statement” she said “I am not reporting any sexual offences against my husband, and I am not even sure that anything actually happened. My head is all over the place and I’ve not slept for weeks which I am going to visit the doctor about”. This rape allegation was never pursued by the police. In 2018 she again complained to the police of rape by H, saying that she had been asleep and woken up to find him penetrating her vaginally with his penis and anally with his thumb. She asked him to stop, but he carried on. This allegation was made after H had dialled 999 three days after the alleged incident and complained to them about Y’s behaviour. H was arrested and interviewed and denied rape but said that they had a sexual relationship in which they had consensual sex from time to time, including twice on the weekend when Y said she had been raped. Y did not make a statement or support the prosecution in any way. Three weeks later she rang the police and told them that H had never raped her, although she had been raped by his uncle. She said she knew how wrong it was, but that she was reliving the incident with the uncle whose appeal against sentence had been heard recently which caused her anxiety.

[5]Mr. James Martin on behalf of the appellant conceded before us that the 2013 assault incident did not advance his case because Y had said in her statement when withdrawing her support for the prosecution “I do not want [H] charging with the assault, I just want him to see what he has done to me…..DC Kellett has taken more photos of my injuries which I want [H] to see.” This is emphatically not a concession that the complaint had been false, rather the reverse. Moreover, the fact that there had been an incident in 2013 resulting in court proceedings against H who was banned from their home was in evidence before the jury. The appellant’s trial lawyers did not seek to investigate the matter further. That apart, Mr. Martin submits that the other material was admissible under section 100 of the Criminal Justice Act 2003 and, where appropriate also under section 41 of the Youth Justice and Criminal Evidence Act 1999. As such it should be received as fresh evidence under section 23 of the Criminal Appeal Act 1968 and we should find that the conviction was unsafe as a result.

[6]This court has recently confirmed in R v Hunnisett

[2021] EWCA Crim 265

(“Hunnisett”) at para 36 that the applicable fresh evidence test remains that set out in R v Pendleton

[2001] UKHL 66

[2002] 1 Cr. App. R. 34

(“Pendleton”). In Pendleton, Lord Bingham stated at [19] that when this court receives fresh evidence, it must make its own assessment of whether the effect of it is to make the conviction unsafe, but must remember that it has not heard all of the evidence:

“The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.”

[7]This is the approach we will take to the assessment of any fresh evidence we find to be legally admissible.

The offences of which the appellant was convicted

[8]The appellant was a close relation of H (often described as his uncle). H and Y were partners at the time of the alleged rape by the appellant and later married. They are now divorced.

[9]The prosecution’s case was that on 21 May 2013, the appellant invited Y out for the day after she had had an argument with H. During her day with the appellant, she drank heavily and he bought “a large bottle of brandy” from Bargain Booze on their way back to his house. There came a point when she felt sick and dizzy and went upstairs to a bedroom to lie down. While she was in bed with her head spinning and “feeling paralysed”, the appellant, having stripped to his boxer shorts, got in next to her and started kissing her on the face and mouth. She told him to stop and tried to push him away. Without her consent he pulled her underwear down and penetrated her vagina with a sex toy which hurt her (count 1). He then raped her vaginally with his partially erect penis and ejaculated (count 2). She said that the next morning, the appellant said to her, “Thanks for last night” and “No-one's made me feel like that in a long time.”

[10]The first person Y told about this was her brother. She also spoke about the appellant raping her to H, to her GP (twice), to her friend (related to the appellant through marriage) and to her mother. Y first contacted the police about it on 27 August 2013, three months later. She was intoxicated and provided an account which differed in a number of ways to that which she would later give in her ABE interview. She contacted the police again on 30 May 2014 and provided a video-recorded interview on 3 July 2014.

[11]The prosecution relied on inconsistencies between the appellant’s account in his police interview and trial evidence, and further inconsistencies between his testimony and those of his defence witnesses.

[12]The appellant’s defence was one of denial of any sexual activity. He gave evidence that he had got into the same bed as Y, but this was at her request and he denied sexually assaulting or raping her. He said that she had made sexual advances towards him both that night and the following morning, but he said he rebuffed her. He also relied on his previous good character and the fact that he suffered from erectile dysfunction. The defence suggested that Y was an attention-seeking, unreliable witness who lacked credibility. There were other beds in his house to which the appellant could have gone, and the jury appears to have rejected his explanation of stripping off almost all his clothes and getting into bed with a very much younger woman who was vulnerable through drink. This was, on any view, a very strange thing to do if, as he said, he had no sexual interest in her. There was some inconsistency in the evidence at trial about the extent of the appellant’s erectile dysfunction, on which he relied. It transpired that he received regular prescriptions for medication to treat the condition. He said he was not taking this, and only obtained it to pass it on to his son. He was in a relationship with a woman who gave evidence that their relationship was not a sexual one. Their evidence about occasions when they had attempted to have sex was inconsistent.

The treatment of other allegations made by Y at trial

[13]An issue arose at the hearing of the appeal about whether an application was made at trial to admit evidence of the rape allegations made by Y recorded in the 2004 Police Report and the 2014 GP Note, or the allegations of domestic violence from 2011 and 2014. The first question was whether anything had been disclosed to the appellant’s trial lawyers. After the hearing of this appeal, we were provided with an MG6C (Police Schedule of Non-Sensitive Unused Material) signed by the reviewing lawyer on 9 November 2015. This certainly shows that the 2004 Police Report was disclosed, along with medical records for Y. It is clear from another document that her disclosure in 2014 about the rapes from 2004 was also known to the appellant’s trial lawyers, no doubt because it was included in the medical records on the MG6C. The MG6C also shows two Storm Logs and two Initial Victim Account Reports from 2013 and 2014. It is not absolutely clear which documents these were, but it seems likely that they concerned allegations of domestic violence by Y against H.

[14]The CCRC has retained “electronic copies of some material relating to the case”. This includes “limited” documentation from the defence files in which the appellant had waived privilege. The CCRC states that the material does not assist on whether an application to adduce the 2004 Police Report and the 2014 GP Record was made to the trial judge. The “Hearing Record Sheets” that the CCRC have reviewed make no reference to an application to adduce the previous complaints by Y.

[15]Trial counsel have been contacted and have helpfully reviewed their notes of the trial, but unfortunately the position remains unclear. We received this information:- “I have contacted trial prosecution counsel, Mark Rhind KC. He cannot recall whether an application was made by defence to adduce the previous allegations of rape made by the victim. He has checked his records and cannot find any written application to adduce those allegations. I understand from Mr Martin that he has contacted defence counsel and counsel, Clare Jones, she cannot recall making any application to adduce the previous allegations of rape.”

[16]We know from the summing up that the available evidence of other allegations made by Y was not before the jury. If they had been, the judge would have dealt with them.

The first appeal against conviction: what was considered then?

[17]The reference of the case to the court by the CCRC means that leave to advance the grounds on which the CCRC made the reference is not required. We are therefore hearing an appeal. Section 23 of the Criminal Appeal Act 1968 governs the approach of the court to the receipt of fresh evidence when hearing an appeal. The fact that the CCRC considers that the evidence ought to be received and has weight is a submission to the court, rather than anything else. We have referred to Pendleton and Hunnisett above for the proper approach on such a reference to grounds based on fresh evidence, and between them those decisions address the approach both to receiving fresh evidence and to evaluating it.

[18]Section 23(2)(d) requires the court to consider whether there is a reasonable explanation for the failure to adduce the evidence at the trial. For the reason given by Lord Bingham in R v Criminal Cases Review Commission, ex parte Pearson

[1999] 3 All ER 498

, [2000] 1 Cr App Rep at 147G to 148E, cited in Hunnisett at [37], this factor may carry less weight than those in section 23(2)(a), (b), and (c).

[19]It is, of course, easy to understand why the evidence about a domestic violence allegation against H in August 2016 and the rape allegations against him from December 2016 and 2018 were not adduced at a trial in March 2016. That requires no further comment.

[20]The evidence listed in the CCRC’s Reference includes the April 2004 rape allegation, recorded in the 2004 Police Report, of which the CCRC says this:- “21. The CCRC is also mindful that one of the incidents considered below (the April 2004 rape) was disclosed to the defence and has, in fact, been raised with the Court of Appeal previously. However, the CCRC is of the view that there is a real possibility that the Court of Appeal may now take a different view of this incident when considered alongside the further material now available.”

[21]The Reference also includes the allegations of domestic violence from 2011, 2013 and 2014. Evidence was given by both Y and H during the trial which touched on the consequences of the 2013 allegation. Other documents which probably dealt with these allegations were also disclosed on the MG6C dated 29 October 2015.

[22]We will set out what happened in the original appeal against the conviction.

[23]Mr. Hurley settled his own grounds of appeal having been advised by trial counsel that there were no arguable grounds of appeal against conviction, as she later confirmed in an email to the Criminal Appeal Office. His appeal notice was received at the Criminal Appeal Office on 8 November 2017. An application was made at the same time for an extension of time. The Notice attaches two handwritten documents, each of which sets out numbered grounds of appeal in somewhat different terms. One says:- “My grounds of appeal are:- 1. Information was deliberately hidden from the jury that [Y] had claimed rape many times before. 2. Her promiscuity was hidden from the jury. 3. [a complaint about the hearing loop system in court during the trial]. 4. I think the judge was biased.”

[24]The other document sets the case out like this:- “Grounds for appeal are 1. Failure to refer to a defence. 2. Wrongful exclusion of evidence. 3. Hiding the fact of her promiscuity. 4. Hiding the fact of her being in a porn movie. 5. [a complaint about the hearing loop system in court during the trial]. 6. The judge was biased, asking loaded questions that should have been asked by the prosecution.”

[25]It is grounds 1 and 2 of the first document and 1-4 of the second which raise issues relevant to this appeal.

[26]A further document gives some further detail of the allegations against Y. It says “She has claimed rape many times. She has claimed domestic abuse at least 20 times….those are just the ones the police were called.” Mr. Hurley writes that Y gets drunk and is violent, and makes false allegations against H, including by injuring herself and blaming it on him.

[27]Two further documents were submitted by Mr. Hurley, both typewritten and both set out further factual detail, but add nothing of significance except that one of them attached the 2014 GP Note, and the 2004 Police Report. These must have come into Mr. Hurley’s possession because of the disclosure process prior to trial. This must be the material he says was excluded or “hidden” from the jury. There is no indication that he was aware of the first rape allegation against H. H himself was not made aware of that. It appears therefore that when he said “she has claimed rape many times” he means the content of the 2004 Police Report and the 2014 GP Note. If he meant anything else, he did not say what.

[28]The single judge refused the applications for an extension of time and leave to appeal on 27 March 2018. He said:- “Extension of time The extension sought is 1 year and 6 months. This is a very long extension. The reasons for such a long delay are not adequate. It is only in exceptional circumstances that an extension of this length will be granted. The circumstances here are not exceptional. Conviction The circumstances in which evidence of a complainant's previous sexual history can be introduced are strictly limited. There is no sufficient material here to indicate the evidence was wrongly excluded. Similarly there is no sufficient material to indicate she made complaints of rape which were false in the past. The problem with the loop system appears to have been short lived and to have caused only a temporary inconvenience and no injustice. You did not indicate your dissatisfaction with counsel's performance at the time, thanking her for what she had done. The convictions are not arguably unsafe on the grounds advanced.” Conviction The convictions are not arguably unsafe on the grounds advanced.”

Conviction

[29]On 25 July 2018, the full court delivered a brief judgment dismissing the leave application for “reasons given by the Single Judge upon which we cannot improve” (R v Michael Hurley

[2018] EWCA Crim 228

[30]It does not appear that the appeal process in this case involved any real exploration of Mr. Hurley’s complaint that evidence had been wrongly excluded. He did not say whether that happened because his lawyers did not seek its admission, or whether it was excluded by a judicial ruling, and neither did his trial lawyers. It appears that neither the single judge nor the full court thought it necessary to find out. This must be because they thought that the evidence about the rape complaints from 2002, 2003 and 2004 and the domestic violence allegations was obviously inadmissible.

[31]It appears therefore that Mr. Hurley was complaining in his application for leave to appeal about the exclusion of some false rape allegations from the trial, and about false allegations made by Y of domestic violence, but it is not clear why or how it was excluded. It would not therefore be right to decline to receive the fresh evidence because there is no reasonable explanation for the failure to adduce such part of it as was available in March 2016.

Basis on which we proceed

[32]In these circumstances, we consider that the safest course is for us to assess all the evidence summarised in paragraph 4 above without regard to whether some of it could or should have been adduced at the trial. We know that it was not, but we do not know why. The exception to this is the evidence relating to the assault allegation from 2013 to which we pay no regard for the reasons given at paragraph 5 above.

The CCRC Investigation

[33]In August 2020, the appellant applied to the CCRC. In his application, he suggested that Y had made “numerous” rape complaints over the years, including a recent complaint which was found to be false. He said that Y was a proven liar and unreliable. He had been wrongly convicted.

[34]The CCRC used its powers under section 17 of the 1995 Act to access material that may be relevant to Y’s credibility or reliability, namely police records and medical records in case those in the possession of the police and CPS were incomplete. It obtained a fuller picture of her mental health and struggles with alcohol.

[35]In accordance with section 14(4) of the 1995 Act, the CCRC set out its Statement of Reasons. It concluded that Y’s credibility and reliability were matters in issue of substantial importance for the case as a whole. It found that various rape complaints made by Y both before and after the appellant’s trial have substantial probative value in the case, adversely affecting her credibility. The CCRC concluded that her various complaints of assault by H, while “less similar” to the rape allegations, “relate[d]” to her propensity to make false or unreliable complaints to the police.

[36]The CCRC summarised its conclusions as follows: “57 The new evidence, when taken together, tends to demonstrate that [the complainant] has, over a number of years, made allegations (including of rape) which, by her own admission, were untrue or can otherwise be properly categorised as false. Such information, taken at its highest, naturally tends to raise concerns about the credibility and reliability of the allegations made against Mr Hurley and the evidence that [the complainant] gave at trial. Whilst [the complainant]’s evidence was tested through cross-examination and the rigours of the trial process, this new evidence (most of which was not available at trial) raises fresh concerns that have not previously been considered. 58 In particular, the CCRC would highlight that this new evidence demonstrates that [the complainant] has:• Made two clearly false and subsequently retracted allegations of rape.

• Made an earlier allegation of rape about which, as set out above, there is a proper evidential basis to suggest it is false.

• Made reports to the police alleging violence by her partner which she has either then refuted (2014) or subsequently explained were inaccurate (2016).

• Previously sought to retract allegations made against her partner and then seemingly refused to give evidence at court. In the CCRC’s view, there is a real possibility that the combined weight of these matters would lead the Court of Appeal to have serious concerns about [the complainant]’s credibility and the evidence she gave at trial. … 67 In the CCRC’s view, [the complainant]’s credibility and reliability is substantially undermined by this new material. Given the centrality of her evidence to the prosecution case it follows that this gives rise to a real possibility that the Court of Appeal would now consider that Mr Hurley’s convictions are unsafe.

• Made two clearly false and subsequently retracted allegations of rape.

• Made an earlier allegation of rape about which, as set out above, there is a proper evidential basis to suggest it is false.

• Made reports to the police alleging violence by her partner which she has either then refuted (2014) or subsequently explained were inaccurate (2016).

• Previously sought to retract allegations made against her partner and then seemingly refused to give evidence at court.

This appeal

[37]Counsel drafted the grounds of appeal which are dated 11 September 2024. He “draws heavily” on the reasoning advanced by the CCRC and “reproduces” much of it as the basis of his grounds.

Issues

[38]Three prime issues fall to be determined: Issue 1. Admissibility of rape complaints Issue 2. Admissibility of other material Issue 3. Safety of convictions

Issue 1: Admissibility of rape complaints

[39]The appellant’s case is that the other rape complaints are “individually admissible” and that the court should also have regard to “the number of events” under section 100(3)(a) of the Criminal Justice Act 2003 (“Section 100”). The “volume” of rape complaints made by Y “is significant” and “should weigh heavily” in favour of the admissibility of them all. The respondent submits that none of the complaints meet any relevant admissibility test.

Legal Analysis: Admissibility of false complaint evidence in sexual cases

[40]Section 41 prevents evidence being adduced about any sexual behaviour of Y without leave and imposes strict limits on the circumstances in which leave can be given. It does not render evidence admissible which would be inadmissible for other reasons. Section 100 does render evidence of reprehensible conduct by persons other than the defendant admissible if it passes through one of the gateways in section 100(1). The relevant provision for this case is section 100(1)(b), and leave is required before evidence can be adduced through that gateway.

[41]In R v BT; R v MH

[2001] EWCA Crim 1877

;

[2002] 1 Cr. App. R. 22

(“BT and MH”), this court examined the proper approach to questioning about allegedly false complaints of sexual offending under section 41. Section 100 was not then in force. The court said at paras 31-33:

“31. Section 41 only applies to evidence or questions "about any sexual behaviour of the complainant": see section 41(1). That raises the issue of whether these proposed questions are, in either case, ones "about" her sexual behaviour. The previous legislation used the phrase "about any sexual experience": see section 2(1) of the 1976 Act. Although "sexual behaviour" is defined in the 1999 Act somewhat more broadly perhaps than just "sexual experience", the concept of questions being "about" such matters is retained. It is, therefore, not without significance that in the case of Cox (1987) 84 Cr App R 132, dealing with the 1976 legislation, this Court drew a distinction between questions about the sexual behaviour itself and ones about statements made about such behaviour by the complainant. Lord Lane CJ said in that case at page 136: “The result of that and the effect of the proposed questions and evidence is to indicate that it was not so much the sexual intercourse with Steven in the earlier event which was of importance, but what she said about it afterwards, and it was that which was the subject of the application.” 32…….. 33 It seems to this Court that normally questions or evidence about false statements in the past by a complainant about sexual assaults or such questions or evidence about a failure to complain about the alleged assault which is the subject matter of the charge, while complaining about other sexual assaults, are not ones "about" any sexual behaviour of the complainant. They relate not to her sexual behaviour but to her statements in the past or to her failure to complain.” “The result of that and the effect of the proposed questions and evidence is to indicate that it was not so much the sexual intercourse with Steven in the earlier event which was of importance, but what she said about it afterwards, and it was that which was the subject of the application.”

[42]The effect of this distinction is to take evidence of false complaints out of the scope of section 41, which would prohibit evidence whose purpose “or main purpose” is to impugn the credibility of Y as a witness, see 41(4). Such evidence is now subject to the admissibility conditions in section 100 of the Criminal Justice Act 2003, because making false allegations of sexual misconduct is reprehensible behaviour. We note the word “normally” in paragraph 33 of the judgment in BT and MH, and that these decisions were influenced by a distinction said to have been drawn by Lord Lane, CJ, in R v. Cox

(1987) 84 Cr. App. R. 132

(“Cox”). Neither BT nor MH appears to have been a case where the complainant’s extraneous allegation of rape against a third party related to a sexual act to which she was said to have consented.

[43]BT and MH were followed in R v RD

[2009] EWCA Crim 2137

(“RD”), where Keene LJ gave the judgment of the court and said that before evidence about previous sexual complaints can be admitted on the basis that they were false, it is necessary for the defendant to establish:

“... ‘a proper evidential basis’ for asserting that the previous complaint had been made and had been false. In the absence of such a basis the questions would become ones about previous sexual behaviour: see E [2004] EWCA Crim 1313, [2005] Crim LR 229.”

[44]This is explained at para 18 in the judgment:

“18. In the case of V as pointed out earlier, this court held that it was only in the instance where again there was evidence of an admission by the complainant that her earlier allegation had been false that cross-examination about it was allowable. This line of cases is not to be regarded as authorising the use of a trial as a vehicle for investigating the truth or falsity of an earlier allegation merely because there is some material which could be used to try and persuade a jury that it was in fact false. As was pointed out in the case of E, if the cross-examination elicited assertions that the allegation had been true, the trial court would have been faced with the dilemma of either letting those assertions of criminal conduct on the part of a named third party stand unanswered, or “descending into factual enquiries with no obvious limit and wholly collateral to the issues in the case”

. We agree with those comments. Nor does the mere fact that the police decided that there was insufficient evidence to prosecute on the past complaint amount to evidence that the complaint was false.”

[45]The meaning of a “proper evidential basis” was further considered by the court in R v AM

[2009] EWCA Crim 618

, where further guidance was offered at paras 22-25:

“22. …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… 23. … The exercise which a judge is called on to perform is fact sensitive… It is not an exercise of discretion. Rather it is a matter for the judge to evaluate on the basis of all the relevant material. But, as is common ground in this case, the relevant question is whether that material is capable of leading to a conclusion that the previous complaint was false. … 25. It is a striking feature of this case that the judge did not ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. That is what was entailed by the question whether there was a proper evidential basis for the assertion that the complaint was false…”

[46]More recently, this court reviewed the false complaint admissibility question in R v Gabbai

[2019] EWCA Crim 2287

. The court said at para 46: "The Court of Appeal has articulated the threshold as requiring ‘some material from which it could properly concluded that the complaint was false' (R v AM

[2009] EWCA Crim 618

at [22]), or "whether there was a proper basis to allege the complaints were false" (R v Knight

[2013] EWCA Crim 2486

at [36]), or "some material from which it could properly be concluded that [a previous complaint] was false", see R v Conn

[2018] EWCA Crim 1751

. As this Court observed in Al-Hilly

(2014) 2 Cr.App.R. 33

: ‘Each case is fact sensitive and the ultimate question is whether the material is capable of leading to a conclusion that the previous complaint was false’.”

[47]In R v S

[2009] EWCA Crim 2457

the court said:- “45. …In the context of section 100 of the 2003 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…”

[48]The interaction of section 41 and section 100 was examined by the court in R v Wilson

[2024] EWCA Crim 1514

(b) of the YJCE 1999, and said at para 40:

“This provision allows for a situation whereby the evidence is within one or other of the section 41(3) gateways but nevertheless falls to be excluded if a conclusion on an issue would be safe without it. There are, of course, a number of ways in which a conclusion might be unsafe because of the absence of some evidence, but one of them, perhaps the most common, arises when the significance of that piece of evidence is disputed. In such a case a court could ask itself whether the evidence had substantial probative value in relation to a matter that was in issue in the proceedings, and was of substantial importance in the context of the case as a whole. If the evidence satisfied that test (drawn from the Criminal Justice Act 2003 s.100) then it was likely that its exclusion would fall foul of s.41(2)(b) and it would be admitted. If it met that enhanced test for evidential importance its exclusion might have the result of rendering a conclusion on a relevant issue unsafe. Thisenhanced test has proved effective in protecting witnesses, see the analysis of the principles in R. v. BVY [2024] EWCA Crim 135 at [29]. Section 41 is not the same as section 100(1)(b) of the 2003 Act in that its focus is on the safety of a conclusion on an issue and also in that that issue cannot be the credibility of the complainant. However, in our judgment it does not offend the language of section 41 to carry across the language from the later statute when the question under consideration is whether the sexual behaviour evidence is ofsufficient importance to justify its admission.”

Summary of the approach in these authorities

[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 denied 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.

The allegations contained in the 2004 Police Report and the 2014 GP Record

[50]The 2014 GP Note records an account from Y of being raped when she was a teenager. It documents that she:

“identified that she was raped by her then boyfriend and his friends at the age of 17, she was then raped a year later by a stranger who shoved her into a bush, she was raped again before the age of 19 [one of these may be a reference to the rape reported to the police in 2004 which clearly related to a stranger]. [She] has been to the police and reported two of these incidents, and has been to the rape centre but no offender was ever identified.”

[51]Mr. Martin sought to incorporate the content of the 2014 GP Note into his wider argument about the unreliability of Y on the basis that these were further rape complaints which “did not see the inside of a courtroom”.

[52]The first allegation in time was made when Y was aged 17, and she says she was raped by her boyfriend and his friends. The appellant submits that there is “no supporting evidence” that she reported this group rape to the police. Therefore, it provides “an additional layer of evidence” suggestive of a pattern of false complaints. We do not agree. The fact of non-reporting does not provide a proper evidential basis for falsity. At the time, Y was a child. She says that she was raped by the person she regarded as her boyfriend and it is not difficult to understand the emotional and personal difficulties she would have encountered in reporting this matter to the police.

[53]As to the two other incidents, it appears that she did report them to the police. She also went to the “rape centre” about at least one of them. It is significant that she told her doctor, much later:- “[She] feels these incidents are the reason she feels worthless, low and angry. She feels these incidents have contributed to her mistrust of others and the feelings of insecurity she reports.”

[54]If she had fabricated these complaints, it is hard to see that she would be reporting to her doctor confidentially a decade later their lasting effect on her life.

[55]It is very likely that one of the incidents mentioned to the doctor is that reported to the police in 2004. The appellant says that this complaint reaches the proper evidential basis threshold because(1) the medical examination showed no “obvious” evidence to support the rape allegation;

(2) a witness provided a statement that differed about her behaviour after the incident;

(3) she said her recollection may have been “clouded” due to the alcohol she had consumed;

(4) police enquiries failed to locate a suspect;

(5) Y did not wish to proceed with the allegation;

(6) the case thus was filed as “undetected”. This is all based on the terms of the 2004 Police Report. That is a document which records an investigation of sorts which has attracted significant criticism from Ms. Jones for the prosecution.

[56]This was, it would seem, an allegation of rape by a stranger. Y made a full statement about it on 6 April 2004 and was medically examined. The police then secured evidence from two witnesses who made statements describing Y’s “promiscuous lifestyle”. One (QF) said that she “regularly asks him out socially as a friend and then leaves a pub with males she had previously not known.” The report then says that on a later date an officer spoke to Y and advised “her of the content of QF’s statement”. Y was 18 or 19 years old at the time. She “admitted that her account of the incident may be clouded due to the amount of alcohol she had consumed. She added that she wished to put the matter behind her and did not wish to proceed any further. She will not support a prosecution, however, she has stated that the incident had happened”. The file was marked “undetected”.

[57]As this court said in R v Al Hilly

[2014] 2 Cr.App.R. 33

(“Al Hilly”) at para 19:

"19. … The mere fact that a complaint is raised and is not pursued does not necessarily mean that a complaint is false. Courts should be ready to deploy a degree of understanding of the position of those who have made sexual allegations. Failure to pursue the complaint does not of necessity show that it is untrue. A rather closer examination of the circumstances is required .... "

[58]We agree with Ms. Jones that the Note of the Investigation suggests that the officers blamed Y for whatever it was which had happened to her, because of her promiscuous lifestyle and drink problem. We would hope that if similar circumstances occurred now, the approach of the police would be entirely different. Vulnerable young women are entitled to the protection of the law, and they should not be intimidated into dropping their complaints because it is suggested by the police that what happened was their fault.

[59]The evidence suggests that she was discouraged from pursuing a complaint which she always said was true. This is not a proper evidential basis on which a court could find that this was a false complaint. Section 41(4) therefore prevents the evidence being adduced even if, which is unlikely, it could pass through the tests of relevance and the “safety test” in section 41(2)(b).

[60]The simple fact of the matter is that Y has never said that these complaints were false, and neither has anyone else. It is clear that during the relevant years she was living a chaotic life and was lacking any support. She drank excessively. She was very vulnerable to sexual predation.

[61]That being so, this evidence was inadmissible at trial and still is. Whether counsel decided not to seek to adduce it, or whether she did and the judge excluded it, whoever took that decision at trial was right.

The rape allegations against H

[62]The appellant submits that Y has “by her own account, falsely accused another person [H] of raping her”. Further, she “has clearly and unambiguously retracted those allegations having told the police that these incidents ‘never happened’”, and this provides “a clear ‘proper evidential basis’ to conclude that the 2016 and 2018 rape allegations are false.” This represents the view of the CCRC and is a submission which requires careful and respectful evaluation.

The 2016 rape complaint against H

[63]On 22 December 2016, Y contacted the police and asked whether it is “possible to be raped within a marriage”. Later that day she gave a fuller account to the police. She said that during an argument on 19 December, her husband had threatened to kill her. He went up to bed alone at 22:30 hours and she joined him just past midnight at 00:30 hours (now 20 December). While she was lying in the bed next to him, he pushed his penis against her backside while she was wearing her knickers and she told him, “No, you know I don’t like it like this.” He nevertheless inserted his penis in her vagina and continued intercourse during which she tried to resist by digging her fingernails into his shoulder to get him to stop. This was unsuccessful as he continued with the unwanted intercourse until he ejaculated.

[64]Late on 22 December when Y was seen by the police at her home, she said that she was unsure if she wished to engage with the investigation. She told the police on 27 December that the incident “never happened”, explaining that she “has not slept properly for days and was confused”. She continued that “her husband has been supportive throughout and would never do this to her, after she was raped by her uncle” [the police appear to have misheard or mis-recorded this because she was referring to the appellant who is not her uncle].

[65]On 30 December 2016 she made a retraction statement in these terms:

“I recently made a verbal sexual allegation against my husband … which I now wish to retract. I am not reporting any sexual offences against my husband, and am not even sure that anything actually happened. My head is all over the place at the moment and I've not slept for weeks, which I am going to visit my doctor about. I have previously been the victim of sexual abuse by someone else, which I think still affects me. I have made this decision on my own, and nobody has forced me into it. My husband has no idea that I contacted the police, and would be heartbroken if he knew as he tries and supports me. I wish for no further police action.”

[66]Y’s medical records show that by the end of 2016 she was struggling with the strain of her rape complaint against the appellant and its subsequent prosecution. The appellant was not only her husband’s uncle but their landlord. Over this period and subsequently, she was struggling with her mental health and was self-medicating with alcohol. The medical records reveal that the three years between the date of the alleged rape by the appellant and his conviction on 23 March 2016 was a period of enormous strain on her. There was also great strain on her relationship with H. There is considerable evidence of her being a victim of serious domestic abuse at his hands.

[67]This was not a generic allegation of rape, but a very detailed narrative including times, positions, and a verbatim account of what she told him to try to stop the rape, including details of her attempt at resisting the rape by digging in her fingernails in her husband’s shoulder. Her initial enquiry to the police is significant also: she did not know whether rape within marriage was even possible and sought clarification about it. From the first day of her reporting the allegation on 22 December, she was conflicted about whether she wished to “engage” with the investigation. Further, the terms of the retraction seem to us to be significant. She states that she is “not even sure” that the incident happened. This is materially different from admitting that she made a false allegation, let alone a deliberately false one and leaves open the possibility that the rape had in fact happened. What is clear is that, whether she had been raped or not, she did not want her husband to be investigated or prosecuted, or even told about the allegation she had made.

[68]On 23 December, Y told the police that she “cannot go through a prosecution as she is not mentally strong enough”, and this sentiment is undoubtedly exacerbated in her mind by her emotional dependence on her husband and her need for his support. There is no evidence that she was determined to pursue a malicious rape complaint against him. One possibility is that she had made a deliberately false complaint against him, but it is much more likely that she changed her mind about whether she wanted action taken because she continued to value her marriage.

The 2018 rape complaint against H

[69]Just over a year later, on 23 January 2018, Y made a second allegation that her husband raped her. H called the police stating that Y was drunk and being abusive. When the police attended, she told them that on 20 January 2018, H had raped her. Her account was as follows:

“On Saturday 20th January 2018 I was asleep in my bed with my husband … we had argued before going to sleep. I woke up, [he] was pulling my pyjama trousers down. I told him to stop. He put his penis in my vagina and started fingering my arse. This did not last long and he just went to sleep then. I went to sleep then.”

[70]She said that she had had consensual sex on 20 January and the rape was on 22 January. She later said that she was raped on both days. H was arrested. He said in interview that during their argument Y had accused him of being a “rapist supporter”. The police record indicates that he said that “it was his father’s uncle that had been convicted of raping her in the past”. H said that the sexual activity between [him and his wife] had been consensual.

[71]On 24 January, Y contacted the police saying that she no longer wished to support an investigation into the rape allegation and would not attend an ABE interview or medical examination. She said she lacked “… the emotional capability to bother with taking this matter any further…” adding that she had “been through all of this before with another suspect and doesn’t want to go through it again.” The police recorded that during this conversation, she “… confirmed that the matter happened in the way she originally described, and that she has not been pressured in any way to decline to prosecute.”

[72]Therefore, she was telling the police on 24 January that her husband had raped her, but she lacked the emotional resources to continue with the investigation given particularly that she had been through a rape prosecution before, which was another reference to the appellant. There are two further dates of note. First, on 7 February she received a home visit from Independent Domestic Violence Advisers. She told them that she had retracted her statement and did not now think the incident had happened. She said she has hallucinations and is awaiting an appointment and “hopes to see a psychotherapist soon”. However, she stated that the relationship with her husband “was not a healthy one”.

[73]On 15 February, Y rang the police. The police record notes that she said she was:

“never raped by [her husband]. She was raped previously by [his] uncle. [The uncle] appealed his sentence in December which caused her great anxiety. Her health deteriorated and she was not sleeping and drinking heavily. She states that the incident reported about [her husband] did not happen but she was reliving the incident with [his] uncle. She is very sorry for her actions, and knows how wrong it was. She is now seeking help from outside agencies.”

[74]Extracts from Y’s medical records on 15 February 2018 state:

“Very distressed & consumed by guilt re what she accused [husband] of. At the same time she's hurting++ that he doesn't understand her pain. Desperately wants to explain to him that she saw his uncle's face when they were having intercourse & freaked out & desperately wants him to understand. Had also been drinking. Strong suicidal ideation & has lined up all her tablets. Doesn't see the point of carrying on. She hates who she is & wants a new life but can't see how that can happen.” [husband] of. At the same time she's hurting++ that he doesn't understand her pain. Desperately wants to explain to him that she saw his uncle's face when they were having intercourse & freaked out & desperately wants him to understand. Had also been drinking. Strong suicidal ideation & has lined up all her tablets. Doesn't see the point of carrying on. She hates who she is & wants a new life but can't see how that can happen.”

of carrying on. She hates who she is & wants a new life but

[75]The explanation that she was “reliving the incident” with Mr. Hurley or seeing his “uncle’s face” when she was having sex with her husband appears to us to be an explanation of why she had not wanted to have sex with him, rather than a confession that she had consented to it and then falsely said that she had not. What was it she “desperately wanted him to understand”? Was it that she had lied about him to the police because of what his uncle had done to her, or was it that she did not always want to have sex with him because of what his uncle had done to her? The second explanation seems more likely than the first.

Discussion of the evidence about the allegations of rape against Y

[76]These accounts show a similar pattern. Y at first confirmed that her husband did rape her but then became less willing to support an investigation and prosecution, and said things which suggested she was not convinced she had been raped at all. Her medical records show a deterioration in her emotional state and mental health between the making of the rape allegation against the appellant in 2013, the trial in 2014 and her allegations against her husband at the end of 2016 and beginning of 2018. There is no reason to doubt that the sexual activity she described took place. The issue on the falsity of what she said was whether she had consented, or whether her husband reasonably believed that she had. This is quite a different issue from that between her and the appellant on the allegation she made against him. Whatever conclusion the jury may be able to draw from any evidence they heard about the marriage it seems unlikely that it would bear on whether they accepted her evidence that the appellant had had sex with her when he climbed into bed with her, or his evidence that he climbed into bed with her and rejected her sexual advances to him. This is not a clear picture of a person who is deliberately and maliciously making false sexual complaints.

[77]There is, nonetheless, an evidential basis on which it could be found that she has falsely alleged that two acts of consensual sexual intercourse with her husband were acts of rape by him. She has said things which might (not must) lead to that conclusion and her husband was a witness at the rape trial of the appellant. He may be able to give evidence of the falsity of these two allegations, if they are admissible under section 100. He might not be able to do so if they are admissible under section 41, see R v. S [1992] Crim LR 309, with commentary by Professor Sir John Smith. This is because section 100 renders evidence of bad character admissible on certain conditions, whereas section 41 restricts and does not expand the admissibility of sexual behaviour evidence, see section 41(8). The impact on section 41 of the common law rule as to the finality of answers given to cross-examination relating to credit or other collateral matters does not arise for decision on this appeal, and we say no more about it.

[78]Is this evidential basis a “proper” evidential basis? This is a fact sensitive decision and in our judgment in this case the answer is that it is not for the reasons we have indicated when reviewing the facts above. We do not consider that the evidence is of substantial probative value in relation to the credibility of Y’s allegation of rape against the appellant. That means that its exclusion would not render a conclusion by the jury unsafe on that issue for the purposes of section 41(2)(b) as explained in Wilson and that the evidence cannot either be admitted under section 100.

[79]In case that is wrong, and there is a “proper”, if relatively weak, evidential basis for finding that the allegations against H were deliberate falsehoods, we should consider whether in this case that takes the evidence out of the scope of section 41. This involves consideration of the distinction drawn by Lord Lane CJ in Cox. Often, evidence that a complainant has made false allegations of rape on other occasions will not engage section 41 of the YJCEA 1999 as explained above when reviewing the authorities at [49(iii)]. In this case that is not so. The evidence in this case is “about Y’s sexual behaviour” because it concerns acts of sexual intercourse which did take place. The suggested falsehood concerned the existence or absence of her consent to those acts. In many cases it is possible to separate the evidence of sexual activity from evidence of subsequent statements about it and to treat the evidence as falling outside section 41 where it relates only to the statements. In the case of the evidence concerning the allegations in 2016 and 2018 that distinction is artificial. The statements describe actual sexual behaviour by Y, and what was in her mind at the time when it occurred. This evidence does engage section 41 which means that it is inadmissible because, if for no other reason, of section 41(4). Its purpose or main purpose is to impugn the credibility of the complainant.

[80]We acknowledge that the distinction in Cox was drawn ina case where the issue about the other sexual experience in question was consent. In our judgment there are factual and legal reasons why Cox should not be relied on to allow cross-examination under section 41 where it is suggested that a complaint has falsely alleged that he or she did not consent to sexual activity which did in fact take place.

[81]First, Cox was a decision under the Sexual Offences (Amendment) Act 1976 whose terms were different from those of section 41.

[82]The Lord Chief Justice, Lord Lane, said:- “The result of that and the effect of the proposed questions and evidence is to indicate that it was not so much the sexual intercourse with Steven in the earlier event which was of importance, but what she said about it afterwards, and it was really that which was the subject of the application. It is true that the learned judge indicated that there was a line of questioning which was open to the defendant falling short of the question which he had ruled should not be put. But if the defence was to be prevented from putting to the complainant the real nub of the Steven incident, namely that she had accused him of rape and had then admitted later that that accusation was false, the effect of the cross-examination would be largely lost. We have come to the conclusion that to stop the questioning short of that point was unfair to the defendant.”

[83]Under the 1976 Act the court was required to grant leave to ask questions about any sexual experience of a complainant with a person other than the defendant “if and only if [the judge] was satisfied that it would be unfair to that defendant to refuse to allow the question to be asked”. The court in Cox did not clearly decide that the section was not engaged because the question was not “about sexual experience”. The court appears to have decided that the section was engaged but leave ought to have been given because to refuse leave would be “unfair to the defendant”. Under section 41, the court does not have the option of granting leave simply because it would be unfair to refuse it. The passage which might suggest that the prohibition in the 1976 Act did not apply at all is highlighted above in italics but it was not part of the ratio because the decision appears to have been that the Act did apply, but that leave ought to have been given. At all events, it is a slender basis for holding that evidence of false complaints of rape never amounts to sexual behaviour evidence and is thus always outwith the regime of section 41.

[84]The present case is a case where the issue in the trial is not “an issue of consent”, see section 41(3)(a). No-one suggested that Y consented to sex with the appellant. Y’s allegedly false allegations against H did involve issues of consent. In Cox, the defence wished to adduce evidence that he and the complainant had had sexual intercourse with consent and that afterwards she had claimed he had raped her in order to placate her boyfriend. He wished to ask questions and (perhaps) adduce evidence to show that this had happened before, when someone else had had sexual intercourse with the complainant and had then been falsely accused or rape when her boyfriend found out. Therefore, in Cox, it was suggested that there were two incidents where it was said that sexual intercourse had taken place, and in both the suggestion was that she made false claims that she had not consented, in both cases to placate her boyfriend. It is easy to see why that factual picture might be properly supportive of the defence case if the jury found that the facts were as claimed. It does not follow from this that the questioning and evidence was not “about any sexual behaviour of the complainant”. It clearly was. Since section 41 was enacted, the evidence would have been analysed for admissibility under section 41(3)(c). The similarity of the behaviour of the complainant on the two different occasions would have been the determinant of admissibility.

[85]Cox therefore is not a basis for deciding that questions about sexual behaviour which involved allegedly false allegations are outside section 41’s ambit if there is a proper evidential basis for their alleged falsity. Where there was sexual behaviour and the alleged falsity relates to consent, such questions must always start with a question about whether there has been a sexual act, and followed, if the answer is yes, by the further question of whether the complainant had consented to that act. The questions would then move on to whether she had falsely said on another occasion that she had not consented. That questioning is, in our judgment, clearly “about the sexual behaviour of the complainant”. It must pass through the filters in section 41(3), 41(2)(b) and 41(4) if it is to be admissible.

[86]The issue to which this evidence is said to go is the credibility of Y’s allegation that the appellant had sex with her. The issue at the trial was not an issue of consent, but an issue of whether there was any sexual activity at all with the appellant. As analysed in Wilson at [49] there are three tests in section 41 which must be satisfied before such evidence can be admissible. In that case, it was said of the relevant evidence:- “Therefore, if the evidence squeezes through the relevance filter in section 41(3)(a), it founders on the twin rocks of section 41(2)(b) and 41(4).”

[87]This evidence founders on the rock in section 41(4). The express, and only, purpose of adducing this evidence is to impugn the credibility of Y. Whether in other cases section 41(4) might be construed to permit evidence which was obviously of importance even where it went to credibility does not arise. There are dicta in R v. A (No 2)

[2002] 1 AC 45

, at [93]-[95] per Lord Hope and [138] per Lord Clyde which suggest that care must be taken in the application of section 41(4) to the facts of the case to ensure that its reach does not go beyond what is intended. Lord Clyde at [138] said:- “138. I do not propose to consider the provisions of subsections (4) and (5) in any depth. It seems to me that the former will require a very fine analysis in its practical application. Issues of consent and issues of credibility may well run so close to each other as almost to coincide. A very sharp knife may be required to separate what may be admitted from what may not. The purpose of subsection (4) may be taken to be the abolition of the false idea that a history of sexual behaviour in some way was relevant to credit. The recognition of that myth as heresy is to be welcomed. But the A subsection may have to be carefully handled in order to secure that that myth remains buried in the past and at the same time secure the availability of evidence of sexual behaviour which is properly admissible as bearing on the issue of consent.”

[88]Does the evidence “relate to” the issue of whether the appellant engaged in sexual activity with Y on the relevant night in 2013? There is a strong argument for saying that it does not, but it is not necessary to reach that conclusion because just as in a Wilson the evidence falls to be excluded even if that question is resolved in favour of the appellant. Taken as a whole, the records relating to Y’s relationship with her husband in 2016-2018 show an unhappy and inconsistent approach by her which is affected by abusive behaviour by him. That marriage ended in divorce not long afterwards. She was suffering from deteriorating mental health and struggling to decide how best to deal with the problems she faced in that relationship. Whatever the accuracy of her perception of his behaviour towards her, there is no evidence at all of a propensity to make false allegations against anyone other than him. A very striking feature of these records is the contrast between what she says about her husband and her firm, clear and consistent account of having been raped by his uncle, the appellant. In our judgment, the evidence of her complaints about her husband is not such that a refusal of leave to adduce it might have the result of rendering a conclusion by the jury that sexual activity had occurred between Y and the appellant on the relevant night unsafe. We have tested that conclusion, as suggested in Wilson, by asking ourselves whether it has substantial probative value on an important issue in the case and concluded that it does not.

[89]It is not necessary for us to take this discussion further on the facts of this case, because of our conclusions about the lack of probative significance of the disputed evidence. Section 41 in this case is doing its job of preventing a jury from being distracted by trying other rape cases in addition to that which they were required to try, where the facts of those other cases were so far removed from the present case that even if firm conclusions about them were possible, they would hardly advance the defence case.

The number of rape allegations

[90]A further point we have considered, particularly having regard to section 100(3)(a), is the “number of events”, and the inferences that may be drawn from the multiplicity of rape allegations. The appellant’s submission is that where a person has made multiple rape allegations, that may give rise to an inference that they are, or some of them may be, false. This seems to us to be a dangerous line of logic in this case because, we emphasise, every case is acutely fact-sensitive. The starting-point must be a contextualised consideration of Y’s chaotic and troubled life.

[91]As documented in the medical records, she came to the attention of social services at least from the age of six. She was an unhappy child with low self-esteem even then, living amidst “considerable family problems”. She had no contact with her biological father who died shortly after divorcing her mother. She witnessed her mother’s new partner, whom she looked up to as a father, threatening her mother and he abducted another sibling. She became a “very sad little girl”, isolated (“secluded”) from friends. She suffered from depression and became reliant on alcohol from a young age. She gave birth to a child who had disabilities. Y’s mother rejected her making her feel worthless. She self-medicated with alcohol to “numb her pain” and had repeated self-harm and suicidal thoughts. She felt very low and alone, recognising that her husband was the only person to stand by her, and was scared she was driving him away with her behaviour and outbursts of anger. She wrote a suicide note and poured sachets of antibiotics into water and began drinking them but stopped. When everything got on top of her, she had a strong urge to kill herself.

[92]The result of this is a compelling picture of a vulnerable young woman whose way of life exposed her to a high risk of sexual predation over a long period of her life. Given her chaotic lifestyle, and the nature of her abusive marriage, it is difficult to draw any clear or reliable inferences from the number of times she says she has been raped.

[93]This court considered the multiplicity line of argument in Al Hilly at para 21:

“None of the individual matters raised begins to provide a basis for an inference or conclusion of a false complaint. In those circumstances there is no advantage to the defendant in seeking to rely on an accumulation of negative results. The fact that there is no instance which begins to show falsity cannot be converted into evidence of falsity by the fact that complaints have been raised more than once; an earlier example of this approach being R. v E (Dennis Andrew) [2004] EWCA Crim 1313.”

[94]We do not think that the number of rape allegations she has made generates an inference that one or all of them must be false.

Conclusion on Issue 1: admissibility of rape allegations

[95]We therefore conclude that the fresh evidence of other allegations of sexual offending against Y would be inadmissible at any new trial because of the operation of section 41.

Issue 2: Admissibility of domestic violence allegations

[96]This is evidence is not evidence about sexual behaviour and section 41 is not engaged. It is evidence designed to show that Y made deliberately false allegations of domestic violence against H, and is subject therefore to the admissibility control in section 100.

[97]The appellant adopts the CCRC’s conclusion that although the assault complaints “share less similarity with the index offence than the rape allegations” they have substantial probative value as they demonstrate “the propensity and/or likelihood of [Y] having made false or otherwise unreliable complaints to the police” (CCRC, para 49). While the CCRC acknowledges that the 2011 and 2014 assault incidents “are not clearly or demonstrably false complaints”, it maintains that they are admissible “as part of the wider narrative” (CCRC, para 51). As the CCRC puts it (ibid.):

“These incidents provide evidence of [the complainant] making complaints to the police, whilst intoxicated, which she then would not proceed with or sought to retract.”

[98]We do not agree. For the January 2011 assault complaint, there was photographic evidence of injuries to Y materially supportive of her claim. The police noted her to be in great distress. Given the domestic abuse context, there is a clear and credible explanation for her not persisting with the allegation against her partner. The appellant no longer relies on the May 2013 assault even though Y again withdrew her support for a prosecution against her partner on that occasion as well.

[99]The October 2014 assault is a complaint in the context of another domestic dispute. Y called the police and makes and quickly retracts an allegation of assault. She explains that she has been under strain due to the prosecution of the appellant. It is impossible to see how this reaches the necessary level of substantial probative value for admissibility under section 100, particularly in light of the history of domestic difficulties and alcohol-fuelled altercations.

[100]The August 2016 assault postdates the appellant’s conviction. H is said by her to have attempted to strangle her and when he pushed her she banged her head on the table. Three days later, her medical records document that she hit her head and sustained a laceration, so there is medical evidence which is consistent with Y’s complaint. Her medical records dated 5 September 2016 state:

“…Also got her husband arrested as she thought he'd pushed her when she banged her head but she was very drunk & got it completely wrong - he was only trying to hold her & comfort her & she pushed herself off him & fell backwards…”

[101]As a retraction this is not very convincing. It is an implausible explanation for the injuries which were obviously genuine. It is regrettably very common in criminal courts to find allegations of domestic abuse which were made when the police are called because the victim is in immediate danger (because they are true). They are then frequently withdrawn as the victim seeks to rebuild the relationship, or comes under moral or physical pressure, or both. Quite often, a new explanation is given for an injury. In this case, there is no reason at all to suppose that Y’s first explanation was a lie and her second the truth.

[102]The complicated relationship between Y and H was marked by clear indications of repeated episodes of domestic abuse, including complaints by him that she was abusive in return. At trial, H told the jury that both of them “resort to alcohol when they are stressed and arguing”. We find that in this volatile personal relationship, the recriminations between the parties have little reliable probative value for a jury in considering whether the appellant raped Y in the way she has always said he did. Further, and as we have already explained, the decision by a complainant to retract a complaint or not proceed with a prosecution cannot be simply equated with its falsity in these complex domestic circumstances. The experience of the courts is that witnesses retract their statements or withdraw their support for prosecutions for a wide range of reasons.

[103]As to the hearing of voices in 2016 shortly before the trial, the point broadly answers itself. As the CCRC noted at its para 61:

“the CCRC acknowledges that this appears to have been a temporary condition and that there is no expert medical evidence to suggest that [the complainant] was suffering from any psychological or psychiatric conditions associated with delusions or hallucinations at the relevant time.”

[104]As to alcohol consumption, once again, the Statement of Reasons provides the answer to the point at para 62:

“the CCRC notes that the jury at trial was aware that [the complainant] had been drinking heavily on the night in question and that she had difficulties with alcohol, at least on occasion. The CCRC is also mindful that the defence had a copy of the 12 page medical record which included references to her “binge drinking” and “excessive alcohol consumption”; including a specific reference to her consuming 150 units of alcohol in a week.”

[105]The question of Y’s reliance on alcohol was before the jury and the judge summed up her evidence about it to the jury stating that “when she is stressed she often turns to alcohol”. Indeed, H told the jury that on the day she says the appellant raped her, H saw her at his uncle’s house and on an intoxication scale of zero to ten, she was “a good nine”.

Conclusion on Issue 2

[106]The evidence of physical assaults could only be admissible with leave under section 100 and is clearly outside the scope of section 41. It concerns allegations of domestic violence by Y against H. The evidence that these allegations were false is not convincing, and it clearly does not have substantial probative value in relation to the credibility of Y’s allegation of rape against the appellant. It would fall to be excluded from evidence on a proper application of section 100. If admitted, it would be seen by the jury to have little or no relevance to the issue they had to decide.

Issue 3: Safety of Convictions

[107]The above conclusions dispose of the appeal, because the fresh evidence on which it is based is inadmissible. We will now address the safety of the convictions on the alternative basis that the evidence was admissible. To reach this point, it would have been necessary to find (among other things) that the fresh evidence was of substantive probative value in relation to an important issue in the case, namely the credibility of Y in making her allegation of rape against the appellant in 2013. In many cases it would follow that a conviction after a trial in which such evidence was not before the jury would be unsafe. This is not automatic, however, and the court must still (on this basis) assess the evidence applying the test in Pendleton. This exercise involves an assessment of the likely effect of the exploration of all this evidence on the outcome of the trial. That is an assessment which we must make, but which we may test by having regard to what we consider a jury would properly have made of it. We are looking now at the verdicts, rather than the process of deciding admissibility of evidence, and that is a different thing.

[108]The other rape complaints are very different to the rape allegation Y makes against the appellant. That is distinctive, with the use of a sex toy, the perpetrator being a much older man who was her landlord and partner’s uncle. The complaints against her husband are plainly entangled in their volatile relationship marked with domestic abuse and, as often features, a strong and concurrent emotional dependency between victim and perpetrator. We recognise that at times each may have fallen into the different roles, such that Ms. Jones’ succinct summary of Y’s life situation is accurate: she was living in “crisis-ridden domestic circumstances”.

[109]We also note that through all this, Y has unequivocally stated that she was raped by the appellant. She attended the police video recorded interview, attended the trial, and has never once indicated that the rape by the appellant did not happen. She has repeated the fact that he raped her to different people at different times over the years in entirely different contexts. She has repeatedly stated that the appellant raping her has had a damaging emotional impact on her. The evidence of the two rape complaints made against her husband is tied to further restatements of the fact that the appellant raped her. Recognising the force of these powerful factors, the appellant submits that Y maintained her claim that the appellant raped her was a “self-serving” strategy to protect her from repercussions against being “criminally liable” for making other false complaints. This argument is taken directly from the CCRC’s conclusions at its para 59. Its unconvincing nature is evident from the fact that Y has told her doctors confidentially in protected medical appointments about being the victim of rape and how that has contributed to her anxiety, depression, alcohol consumption and mental health struggles. The suggestion that this was some kind of anticipatory defence to future criminal liability seems fanciful.

[110]If the evidence of the various things which she had said in the past about the alleged rapes by Y in 2016 and 2018 had been admitted, the jury would not have been faced with clear evidence of false allegations of rape against other people at other times.

[111]In these circumstances we consider that a jury, hearing about all this, would probably come to the conclusion that the new evidence was of very limited assistance in deciding whether the appellant was guilty of the 2013 offences against Y. They had to decide why he got into bed with her, having removed most of his clothes. He never had any sensible explanation for doing that, and omitted a key part of his account when interviewed. He failed to mention that she had in fact made sexual advances to him, and that he had rebuffed them. The judge gave a direction about how the jury should treat these omissions which was impeccable. He identified them in these words:

“As part of his defence, the defendant has relied upon a number of matters: First, the sexual overture made to him by [Y] when they went to bed, or when he went to bed which she already occupied. Second, her repeated request for a cuddle the following morning. Third, his account that the following morning, despite having been rebuffed the previous night, she told him that she knew how to give him an erection and she put her hand down his boxers. And, finally, his evidence that he masturbated to achieve pleasure and achieved a climax without ejaculation. Now, he admits that he failed to mention any of those facts when he was interviewed about the offences, and this failure may count against him, and this is because you may draw the conclusion from his failure to mention those facts that he has since invented them and tailored his account in order to bolster his defence and, insofar as it is possible to do so, to fit in with the prosecution's case about the behaviour of [Y].”

[112]Other difficulties arose for the defence during the trial concerning the extent of the appellant’s erectile dysfunction and the reason why he had medication for it, and his true level of sexual functioning in 2013.

[113]The case against the appellant at trial was very strong. By his own admission the appellant got into bed with a much younger woman who was his nephew’s partner when she was very drunk. He got into bed having stripped down to his underwear and when he did so began “cuddling” the intoxicated much younger person. At trial, the appellant significantly changed his account of what happened from his police interview, mentioning for the first time that the next morning Y reached into his underwear, touched his penis and tried to put it between her legs, and the other matters mentioned in the judge’s section 34 direction. His failure to mention such important matters would justify significant adverse inferences. The jury heard Y’s evidence and could assess it properly. They were entitled to reject the appellant’s account that the reason for her lies might have been because she was “angling for a relationship with him” and was “interested in his money”. By the time of her recorded interview with the police, she had already made disclosures about the appellant’s rape to her brother, her partner, her mother, twice to her doctor and a friend, connected to the appellant through marriage. The appellant correctly submits that this does not amount to “independent corroboration”. But here were six early disclosures made to different people prior to Y’s recorded account in July 2014. They were made in a context which would not suggest that Y was angling for a relationship with the appellant, and which would not enable her to get her hands on his money. As such, they tended to support her allegation that the appellant raped her, and the judge correctly directed the jury that they can provide evidence of consistency. Tellingly, H told the jury that when she told him that the appellant had raped her, he found her to be “abnormally distraught”. As the judge correctly directed, the jury was entitled to take all this into account as “evidence of the truth” of the rape complaint against the appellant.

Conclusion on Issue 3: safety

[114]We find that these convictions are safe, even having regard to the evidence identified in the CCRC Statement of Reasons.

Disposal

[115]We dismiss the appeal. In doing so, we should not be thought to be expressing any criticism of the CCRC’s decision to refer it to this court. It was entirely appropriate that the result of the CCRC investigation should be subjected to careful scrutiny in this court and we are grateful to the CCRC for its work on this case. APPENDIX Section 41 of the Youth Justice and Criminal Evidence Act 1999

[41]— Restriction 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, (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. (5). This subsection applies if the evidence or question— (a) relates to any evidence adduced by the prosecution about any sexual behaviour of the complainant; and (b) in the opinion of the court, would go no further than is necessary to enable the evidence adduced by the prosecution to be rebutted or explained by or on behalf of the accused. (6). For the purposes of subsections (3) and (5) the evidence or question must relate to a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant (and accordingly nothing in those subsections is capable of applying in relation to the evidence or question to the extent that it does not so relate). (7). Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence— (a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but (b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge. (8). Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section. Section 100 of the Criminal Justice Act 2003 (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.

Michael Hurley v R [2025] EWCA Crim 642

The issue

Introduction

The offences of which the appellant was convicted

The treatment of other allegations made by Y at trial

The first appeal against conviction: what was considered then?

Conviction

Basis on which we proceed

The CCRC Investigation

This appeal

Issues

Issue 1: Admissibility of rape complaints

Legal Analysis: Admissibility of false complaint evidence in sexual cases

(b) of the YJCE 1999, and said at para 40:

Summary of the approach in these authorities

The allegations contained in the 2004 Police Report and the 2014 GP Record

The rape allegations against H

The 2016 rape complaint against H

The 2018 rape complaint against H

of carrying on. She hates who she is & wants a new life but

Discussion of the evidence about the allegations of rape against Y

The number of rape allegations

Conclusion on Issue 1: admissibility of rape allegations

Issue 2: Admissibility of domestic violence allegations

Conclusion on Issue 2

Issue 3: Safety of Convictions

Conclusion on Issue 3: safety

Disposal

Cited in 2 later judgments