Practice and Procedure

R v (1) ADC (2) JB (2003)

PUBLISHED February 18, 2003

A judge had exercised his discretion fairly under s.41 Youth and Criminal Evidence Act 1999 by ruling as admissible certain evidence about sexual abuse on complainant children by persons other than their parents against whom criminal proceedings had been brought.Appeals by the defendants ('B') and ('C') against their convictions with leave of the single judge. On 15 April 2002, at Nottingham Crown Court before HH Judge Benson and a jury, B and C were convicted on counts of indecent assault and indecency with a child. B and C formed a relationship with each other in 1991 and subsequently had five children which included J and N ('the twins'). B also had a daughter ('E') from a previous relationship. Charges arose from corresponding allegations of sexual abuse made by the twins to their foster parents in 2000 and by E in 2001. During the course of video interviews the twins made allegations of sexual abuse against others in addition to their parents. Before a jury was sworn in, counsel for B and C submitted that the jury should know the full range of complaints made by the twins, either by relevant material being adduced in evidence or by cross-examination, because there were "strikingly similar features" about the complaints and "inconsistencies". The judge ruled that such evidence could only be admitted in a controlled way, and in the event certain admissions together with certain prior and allegedly inconsistent statements were placed before the jury. B and C were subsequently convicted of two and three counts of indecent assault respectively. C was also convicted of three counts of indecency with a child. On 10 May 2002 B and C were imprisoned for periods of fifteen months and four years respectively. On appeal against their convictions it was submitted that: (i) the twins evidence of complaints of sexual abuse against others was admissible and should have been admitted; (ii) that cross-examination generally with regard to the other complaints should have been permitted; and (iii) that the trial was unfair and the verdict accordingly unsafe.HELD: (1) The judge had a discretion to exclude evidence under s.41 Youth Justice and Criminal Evidence Act 1999, and it was common ground that subsection (3)(a) applied. The issue was not consent, but whether the abuse charged ever took place. Therefore leave was required under subsection (1). (2) The authorities drew a distinction between questions about a complainants sexual behaviour or other sexual experience and questioning about other complaints made by a complainant of sexual abuse of him or her. In the present case questions about failure to mention the complaints subsequently made were permitted in the case of both twins. Questions were also permitted with regard to alleged inconsistencies in and between their account of the matters charged and E's. (3) The judge had been right to consider that he had a discretion under s.41 of the 1999 act and there was no basis for disturbing his exercise of discretion. Such a finding was sufficient to dispose of the appeal. Yet, even if this finding was wrong, there was no reasonable possibility that cross-examining the twins about their complaints regarding abuse by people other than their parents, combined with suggestions that the same should in some way impact on their credibility, would have made any significant difference to the jury's conclusions on the central issues of guilt or innocence. If the twins had denied or could not recall the relevant statements, they could not be contradicted with evidence of them. If they admitted making them, they would in all probability have sought to justify them, which would not have assisted B or C. (5) In all the circumstances the verdicts were safe.Appeals dismissed.

[2003] EWCA Crim 29