PRP v R
[2024] EWCA Crim 1150
R v Logan Galbraith
18 September 2024
[2024] EWCA Crim 1148
Court of Appeal
A man was convicted of sexual assault. He wanted to ask the victim about a past consensual sexual experience involving choking to show the current incident was consensual. The judge said no, because the past and current events were too different. The appeal court agreed, saying the judge made the right decision, and the conviction stands.
Key Facts
- •Appeal against conviction for assault by penetration, sexual assault, and attempted rape.
- •Complainant was a waitress, appellant was the bar manager.
- •Appellant picked up intoxicated complainant and took her to his hotel room.
- •Appellant assaulted complainant; she said she did not consent.
- •Appellant claimed consent and that complainant asked to be choked.
- •Section 41 YJCEA 1999 application to question complainant about past consensual choking during sex was denied.
Legal Principles
Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) restricts evidence or questions about a complainant's sexual history unless the court grants leave.
YJCEA 1999, Section 41
Leave under section 41(3)(c)(i) YJCEA 1999 will only be granted if the past sexual behaviour is alleged to have been, in any respect, so similar to the behaviour in the current case that the similarity cannot reasonably be explained as a coincidence.
YJCEA 1999, Section 41(3)(c)(i)
The test for admissibility under section 41, considering the Human Rights Act 1999, is whether the evidence is so relevant to the issue of consent that excluding it would endanger the fairness of the trial. The court must balance protecting complainants from indignity with ensuring a fair trial.
R v A (No 2) [2001] UKHL 25
The court must consider the similarity of circumstances in determining if the past sexual behaviour is sufficiently similar under section 41(3)(c)(i). Sometimes issues of similarity are easy and sometimes not; the judge's view on similarity must be open to him.
R v Harris [2009] EWCA Crim 434
Outcomes
Appeal dismissed.
The trial judge correctly refused leave to question the complainant about past consensual choking. The past incident and the incident in question were deemed dissimilar; the similarity could reasonably be explained as coincidence. The court found no evidence suggesting the complainant derived sexual gratification from being choked. Excluding the evidence did not render the trial unfair.