Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 20
A Tangled Web:
The Admissibility of Previous Apparently False
Complaints of Rape and Domestic Violence,
and Their E昀昀ect on Conviction.
by Bianca Brasoveanu, Barrister at Mountford Chambers
the latter allegation, H was interviewed, denied
the o昀昀ence, and Y rang the police a few weeks
later saying this rape had never happened.
Bianca Brasoveanu considers the Court of Appeal’s
decision in R v Hurley [2025] EWCA Crim 642.
Introduction
The Court of Appeal proceeded on the basis that
this was all fresh material.
Mr Hurley was convicted of the rape of ‘Y’ and
a related sexual o昀昀ence in 2016, and sought the
assistance of the Criminal Cases Review Commission
(‘CCRC).
The Legal Submissions
It was submitted on behalf of Mr Hurley that the
above three strands of evidence should be admitted,
昀椀rstly under section 100 of the Criminal Justice Act
2003 (non-defendant’s bad character) and secondly,
where pertinent, under section 41 of the Youth
Justice and Criminal Evidence Act 1999 (restriction
on evidence or questions about complainant’s sexual
history). Should the evidence be deemed admissible,
then it ought to be considered as fresh evidence in
Mr Hurley’s appeal under section 23 of the Criminal
Appeal Act 2003.
The CCRC, having considered the fresh evidence
Mr Hurley sought to adduce, referred the case back
to the Court of Appeal under section 9(1) of the
Criminal Appeal Act 1995 on the basis that there was
a real possibility that the fresh evidence would be
admissible, and would lead the Court of Appeal to
conclude that Mr Hurley’s convictions were unsafe.
The Fresh Evidence
The material Mr Hurley relied upon in his appeal
was threefold:
•
•
•
As part of the judgment, the Court adopted a
stepped guide as to how to approach the correlation
between section 100 and section 41 in cases where
the complainant’s previous allegation of sexual
o昀昀ences is 昀椀rst said to be false:
Evidence through police documents and
medical records that Y had made previous
allegations of rape on at least three occasions
between the ages of 17 and 19 (2002-2004). None
of these allegations had been pursued, as Y
withdrew her support after making the initial
complaint to the police. Two of the allegations
were stranger rapes in public places, and one
was an allegation relating to her then boyfriend
and his friends.
1.
2. The admissibility of this evidence is underpinned
by the enhanced relevance test outlined in
s.100(1)(b) of the Criminal Justice Act 2003
mandating the following:
Police records where Y alleged being the victim
of domestic violence by her partner and later
husband ‘H’. Various incidents were reported to
the police, but again, Y was never supportive of
H’s prosecution.
i.
Two allegations of rape made by Y against her
husband H in 2016 and 2018. Following the 昀椀rst
report to the police, Y did not want to provide a
statement in support of the investigation and in
a retraction statement, she said that she could
not be sure anything had happened. In terms of
EXPERT WITNESS JOURNAL
Evidence of false complaints ought always to be
considered as non-defendant bad character in
accordance with s.100 because it is evidence of
misconduct (s.112(1) of the 2003 Act);
the evidence must have substantial (but
not necessarily conclusive) probative
value in relation to the complainant’s
credibility; and
ii. credibility must be a matter in issue
of substantial importance in the
proceedings as a whole.
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DECEMBER/JANUARY 2025-2026
