Are previous unproven allegations of rape admissible in criminal proceedings?

Background

The question of the basis for admissibility of previous allegations by a victim that she had been raped in a trial where she was alleging rape again was considered by the Court of Appeal in R v Michael Hurley [2025] EWCA 642. Hurley had, in fact, been convicted of sexually assaulting and raping Y in 2016. He was sentenced to seven years’ imprisonment. The case was referred back to the Court of Appeal by the Criminal Cases Review Commission.

The basis for the referral was that “fresh evidence” was now available that Y had made previous allegations of rape against others including her husband. She had also made allegations that she was the victim of domestic violence.

Specifically, she had made complaints that:

she had been raped in 2002, 2003 and 2004 by a stranger, her then boyfriend and his friends.
she had been raped by her husband in 2016 and 2018 (post-conviction).
she had been assaulted by her husband in 2011, 2013, 2014 and 2016.

Thus, apart from the allegations for which the Appellant had been convicted, the complainant had made five further allegations of rape either to the police or to medical professionals, none of which had led to prosecution.

The facts

The judgment refers to the Appellant being significantly older than Y although the precise age difference is not known. He is described as her husband’s “Uncle” and also her landlord. The Court made much of this throughout its judgment. Y had had an argument with her husband and went out with the Appellant with whom she drunk a significant quantity of alcohol. She went to bed at the Appellant’s house and alleged that he got into bed with her, assaulted her with a sex toy before vaginally raping her with a semi-erect penis. In his defence, the Appellant denied any sexual activity had taken place between them. He said she had made sexual advances towards him but he had rebuffed them because he was not sexually attracted to her. He further stated that he had erectile dysfunction and could not have behaved as alleged.

Y came to the attention of social services aged six. She had an unhappy isolated childhood and became dependent on alcohol from a young age. She gave birth to a disabled child and was rejected by her mother. She had low self-esteem, suicidal thoughts and a chaotic lifestyle.

The relevant statutory provisions

There was an element of uncertainly about the material that had been available at trial and what applications, if any, made to adduce it. Thus, the Court proceeded to determine the basis upon which such evidence could have been admitted, before assessing whether it should have been admitted and considering the safety of the convictions.

Section 41 of the Youth Justice and Criminal Evidence Act 1999 prevents cross-examination about the sexual behaviour of a complainant without leave of the court.

Section 100 of the Criminal Justice Act 2003 makes provision for the admission of evidence about reprehensible conduct by a witness. This is known as “bad character” evidence and the Court needs to be persuaded of its probative value before deeming it to be admissible.

Thus, the Court of Appeal was tasked with deciding whether Mr Hurley could rely on the evidence of the fact that Y had said she had been raped on five other occasions through either of the above statutory gateways. In doing so, it looked at previous authorities and the inter-relationship between the two statutory provisions.

The Court’s reasoning

Because section 41 deals with sexual behaviour of the complainant, that does not encompass supposedly false allegations which are effectively statements as opposed to behaviour. Consequently, if a defendant can demonstrate that a proper evidential basis for asserting that the complaint is false then it falls outside of section 41 (there having been no sexual behaviour) and the Court determines whether it is admissible under section 100. If there is no proper evidential basis to assert falsity then the Court would be required to grant permission under section 41 (although it would be unlikely to do so because there would be no lawful basis for the cross-examination).

In this case, the Court having reviewed the evidence surrounding each allegation of rape which Y had made concluded that there was no evidential basis for asserting that any of them were false. Consequently, they were neither admissible under section 41 (as they were an attack on her character) or section 100 (as they had no probative value of any issue regarding her credibility).

The Appellant was therefore unable to rely upon the fact that Y had made five previous allegations of rape none of which had even resulted in the bringing of criminal charges. The Court did deal with the point about “the number of events”. However, it concluded as a result of Ys chaotic lifestyle and vulnerability she was exposed to “a high risk of sexual predation” and consequently the allegations she had made were likely to be true. The Court went on to conclude that regardless of the issue of admissibility, the convictions were safe in any event.

Commentary

There may be no basis to criticise the ultimate conclusion on the safety of the convictions. However, there were concerning aspects to the treatment by the Court of some of the evidence in the case. With respect to one of the previous allegations Y had made of rape, the police had obtained statements from two witnesses who described her “promiscuous lifestyle”. One of those witnesses also said that she “regularly asks him out socially and then leaves a pub with males she had previously not known”. The response of the Court was to criticise the police for not having taken her report more seriously. Moreover, the Court’s reasoning about Ys likely exposure to a “high risk of sexual predation” also appears to have been made without any expert evidence on that point. Equally, her abuse of alcohol and chaotic lifestyle does not appear to have attracted any consideration as to whether such factors may give rise to propensity to lie. Instead, the Court concluded simply that these factors made her “very vulnerable to sexual predation”.

It is a matter of concern that a defendant facing trial on an allegation of rape would be unable to allow a jury to weigh the fact that a complainant had made five other allegations of rape previously none of which had resulted in charges let alone convictions. Allegations made by complainants who allege that sex took place without consent are commonplace and can be untrue. Frequently, there is no other evidence than what is said by each party and issues relating to the credibility of the complainant and the defendant are paramount. It is, of course, desirable that a judge is able to rule on the proper confines of cross-examination in such circumstances but requiring defendants to effectively prove falsity sets a high bar and one which may not be achievable unless full disclosure is made.