A rape conviction was unsafe where the trial judge had refused the appellant's counsel leave, under s.41 Youth Justice And Criminal Evidence Act 1999, to cross-examine the complainant in relation to occasions before and after the rape complaint when she was alleged to have had consensual sexual intercourse with the appellant. The evidence was relevant to the issue of consent and its exclusion deprived the appellant of a fair trial.Appeal against conviction for rape concerning the admissibility of evidence and permissibility of questioning on the complainant's sexual behaviour. In March 2002 the appellant ('R') was convicted of a rape committed on 5 August 2000 when he was 15 years old. A co-accused ('H') was also convicted of rape committed on the same night with the same complainant ('C'). C said that at the start of 1999 she had been R's girlfriend and they had engaged in consensual sexual intercourse on one occasion. R agreed that they had been in a relationship but contended that intercourse had occurred more than once and that, on the night in question, the intercourse was consensual. H denied having intercourse with C at the relevant time. R's counsel applied under s.41 Youth Justice And Criminal Evidence Act 1999 for leave to cross-examine C on three of R's contentions, namely that: (i) R and C previously had a consensual sexual relationship; (ii) in April 2000, C had had consensual intercourse with R and then H; and (iii) C had had consensual intercourse with R in about July 2001. The judge refused leave in respect of (ii) and (iii) on the basis that neither was relevant to any issue in the case. He admitted the evidence of a previous relationship as being relevant to R's belief that C was consenting.HELD: (1) The judge was correct to rule that evidence of R and C's consensual sexual relationship prior to 5 August 2000 was relevant but wrong to limit its application to the question of R's belief. If it was relevant for the jury to hear about the previous sexual relationship between R and C, there could be no logical reason for excluding the fact, if it was found to be so by the jury, that the last act of sexual intercourse prior to 5 August 2000 had occurred in April 2000. (2) The evidence of the previous relationship, which included consensual sexual intercourse between C and R, was relevant to the issue of consent in the circumstances of the case. The alleged incident in April 2000 clearly went to the issue of consent. (3) Evidence of consensual intercourse between R and C after the allegation of rape had been made was relevant as conduct that may not be consistent with the allegation. A reasonable jury could take the view that it was highly unlikely that a female, who had been raped in the circumstances alleged, subsequently would have volunteered to have intercourse with the alleged offender. (4) Evidence that both R and H had consensual sexual intercourse with C in April 2000 one after the other was also relevant to the issue of consent. (5) On a strict interpretation of the Act, the evidence of the relationship between R and C both before and after 5 August 2000 had to be excluded. The only cross-examination and evidence admissible was that of the alleged incident in April 2000. (6) Applying the test for the application of s.41(3)(c) as enunciated by Lord Steyn in R v A (No.2)(2002) 1 AC 45, the evidence of a sexual relationship between R and C both before and after 5 August 2000 was relevant to the issue of consent and its exclusion deprived R of a fair trial. Accordingly the judge was wrong to refuse the application in respect of the alleged incidents in April 2000 and around July 2001. (7) It was impossible to regard R's conviction as safe in the circumstances. His conviction had to be quashed.Appeal allowed.

[2003] EWCA Crim 2754