No: 2004/05804/B2
Neutral Citation Number: [2005] EWCA Crim 396
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday, 15 February 2005

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)

MR  JUSTICE  DAVIS

and

MR  JUSTICE  FIELD

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R E G I N A

- v -

HUSSEIN  BAHADOR
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MR JOHN COOPER appeared on behalf of THE APPELLANT

MR GOPAL A J HOOPER appeared on behalf of THE CROWN
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J U D G M E N T

Tuesday, 15 February 2005

THE LORD CHIEF JUSTICE:  

1.	On 17 September 2004, at the Crown Court at St Albans, before His Honour Judge Gosschalk and a jury, the appellant, Hussein Bahador, was convicted of indecent assault (count 4).  He was sentenced to 12 months' imprisonment.  On that occasion he was also acquitted on a count of rape (count 2) at the judge's direction, and of attempted rape (count 3) by the jury's verdict.  The appellant appeals against conviction by leave of the single judge.  
 
2.	The facts leading up to these offences are as follows.  On 13 December 2004, the complainant went to Destiny's night club with a friend.  The appellant was also present with his friends, including his co-accused Mr Marney.  The co-accused was acquitted of an offence of rape relating to the same incident.  
 
3.	In the early hours of 14 December the complainant left the club with Mr Marney and got into a motor car.  Sexual intercourse then took place.  The complainant said that this was without her consent.  That led to the count of rape on which Mr Marney was acquitted.  
 
4.	Thereafter Mr Marney got out of the car and the appellant got in.  The complainant stated that he tried to have sexual intercourse with her against her wishes, but stopped when friends arrived.
 
5.	The appellant's case was that when he had got into the car he believed that the complainant was willing to have sexual contact with him.  As soon as it became clear that she was not willing to do so, he got out from the vehicle.  He did not attempt to rape her or indecently assault her.  
 
6.	The issue in the case with regard to the indecent assault of which the appellant was found guilty was: did he honestly believe that this was conduct to which the complainant would consent?  
 
7.	The sole ground of appeal relates to the fact that the judge made two rulings that the complainant should not be cross-examined about her alleged behaviour on the stage in the night club.  It was the appellant's contention, Mr Cooper tells us, supported by a signed statement by him, that the complainant had taken part in a competition, which the appellant had seen, which involved her exposing her breasts and simulating oral sex.  Other matters of evidence were excluded, but Mr Cooper does not rely on them for the purposes of this appeal.  
 
8.	In dealing with the issue the judge had to apply his mind to section 41 of the Youth Justice and Criminal Evidence Act 1999.  Section 41(1) provides:  

"If at a trial a person is charged with a sexual offence [which this was], then, except with the leave of the court -- 
 
(a)	no evidence may be adduced, and 
 
(b)	no question may be asked in cross-examination,

by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.  
 
(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)	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 be reasonably be explained as a coincidence."  
 
Before the judge the appellant relied on section 41(3)(b) and (c).  

9.	Mr Cooper, in his submissions before us, candidly accepts that the contention of the appellant before the judge was wrong.  Reliance should have been made, not on 41(3)(b) or (c), but on 41(3)(a).  That is because of the definition section 42, which provides in subsection (1):  

"....

(b) 'issue of consent' means any issue whether the complainant in fact consented to the conduct constituting the offence with which the accused is charged (and accordingly does not include any issue as to the belief of the accused that the complainant so consented)."  
 
10.	As the defence of the appellant was one based on belief, by reason of the provisions of section 42(1)(b), subsections 41(3)(b) and (c) was not relevant to the application, but section 41(3)(a) could be.  Looking at section 42 it is interesting to note that "relevant issue" is interpreted as meaning "any issue falling to be proved by the prosecution or defence in the trial of the accused".  As the appellant relied on his honest belief that in relation to what he did the complainant would consent, that becomes a relevant issue in the case.  Therefore we have to decide, first of all, whether the conduct which took place on the stage was relevant to an issue in the case within the language of section 41.  
11.	In his argument on behalf of the respondent Mr Hooper submits that it was not relevant.  He submits that, pushed to its logical conclusion, the argument of the appellant would mean that every stripper who performed at a club would convey the message that by conducting herself in that way she was indicating that she was consenting to sexual attention by someone such as the appellant and consenting in particular to be touched in a sexual manner by a complete stranger.  
 
12.	We recognise the force of that argument.  However, in looking purely at the question of relevance, we feel compelled to conclude that as the appellant's defence was one based on his honest belief, it is difficult to say that what he contended to have taken place on the stage could not be relevant.  We emphasise that at the time of this trial the test was honest belief in consent.  Under the law as it is at present as a result of the Sexual Offences Act 2003, the test now is reasonable belief.  Honest belief and reasonable belief are very different things.  Without having the opportunity of seeing the appellant cross-examined on his alleged honest belief, it is difficult to say whether or not something such as was alleged to have occurred here could or could not affect his honest belief.  Having had the argument presented before us in a different way from that which was presented before the judge, we would accept that Mr Cooper reaches first base.  
 
13.	However, we would emphasise that under section 41(2) relevance is clearly not the only matter that the judge has to consider.  The section makes it clear that he has a discretion.  Even if Mr Cooper can bring himself within subsection (3) and therefore deal with the requirements of section 41(2)(a), he has also to deal with section 41(2)(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.  So the judge must take into account whether or not the refusal of leave might have the result of rendering unsafe a conclusion of the jury on any relevant issue in the case; the relevant issue here being honest belief.  
 
14.	Because of the way the case was argued in the court below, the judge did not deal with that requirement in section 41(2)(b).  It is therefore necessary for this court to consider section 41(2)(b) in the circumstances of this particular case.  Here, there is one piece of evidence that was placed before the jury on behalf of the appellant to which we should refer.  He said that after his co-accused had had sexual relations with the complainant in the car, the co-accused got out of the car and spoke to him.  He asked his co-accused whether she was "up for it", to which he received a positive response.  The fact that he asked that question seems inevitably to lead to the conclusion that if he had received a response in the negative he would not have proceeded to behave in the way that he did.  It seems to us inevitable that that conversation immediately before the assault took place would have had much more effect upon the belief of the appellant than anything that may have happened on the stage.  
 
15.	In addition to that, the jury had the evidence which the co-accused had given as to the intimate behaviour of the complainant with him.  The jury's verdict in favour of the co-accused is the clearest proof that the complainant's conduct was something which made the jury come to the conclusion that she might have consented to sexual intercourse with the co-accused or he might have honestly believed that she did so consent.  
 
16.	In addition, in his interview with the police the appellant made no reference to what he alleged had happened on the stage.  If he had seen this girl behaving in the way he apparently alleged in his statement, it is of significance that he made no mention of it.  
 
17.	This goes to the question as to whether there was anything unsafe about this conviction and whether or not the judge was wrong not to admit the evidence.  Under section 41(2) it is clear that the judge has a discretion.  It is also clear why section 41(2)(b) is framed in the way that it is.  It was framed in that way because it was the policy of that Act to protect women who make complaints about sexual offences committed against them; it protected them from inappropriate and harassing cross-examination.  The experience of the legislature leading to the enactment of the 1999 Act was that unless the cross-examination of and the making of accusations against complainants was limited within appropriate bounds, fewer women would come forward to make complaints about sexual assaults upon them.  The policy was to protect complainants in proceedings in relation to sexual offences alleged to be committed against them.  It seems therefore to us that it can be reasonably said in the context of this case as a whole, albeit that what was alleged to have happened on the stage (and we emphasise alleged to have happened on the stage) was, strictly speaking, relevant to an issue in the case, the judge would have been entitled to exclude the evidence of what is alleged to have occurred on the stage and cross-examination as to it.  In our judgment the exclusion of the evidence and cross-examination certainly did not render unsafe the conclusion of the jury that the appellant was guilty of the offence of which he was convicted.  The position was after all that, without seeking a by your leave of any sort from the girl -- a girl with whom the appellant had had no dealings with before -- he went into the car and immediately sexually assaulted her.  That a jury would be influenced against that background by what was alleged to have happened on the stage we think is not a tenable proposition.  In those circumstances we consider that the evidence could properly be excluded under section 41(2)(b). Furthermore, there is nothing unsafe about this conviction.  Accordingly the appeal will be dismissed.