Expert Witness Journal Issue 64 December 2025 - Flipbook - Page 21
3. False complaints of previous sexual o昀昀ending
are not automatically covered by section 41
unless the evidence that is sought to be admitted,
is of the sexual behaviour itself. If the issue is
the complainant making an allegation said to be
false, the admissibility test reverts to section 100.
Commentary
Arguably, the most important clari昀椀cation from
previous case law that the Court made in Rex v
Hurley, was step three when it established that the
admissibility under section 41 of previous false
allegations of sexual o昀昀ences depends on the subject
of the alleged falsity. It was only deemed admissible
when the subject matter was indeed a sexual act as
opposed to the making of the allegation in itself
because in that case there would be no sexual
behaviour which would trigger section 41.
4. In order to deem a statement false, there must be
a proper evidential basis: R v RD [2009] EWCA
Crim 2137 and R v AM [2009] EWCA Crim 618.
5. The “proper evidential basis” must meet the test
under section 100, namely:
i.
It must have substantial probative value
in relation to a matter in issue; and
Although the stepped approach to addressing
the interrelation between section 100 and 41 was
seemingly straightforward, the practical application
of this approach does not in e昀昀ect simplify the
interpretation of the legislation in question which
can fairly be described as ‘labyrinthine’.
ii. It must be of substantial importance in
the context of the case as a whole.
6. The admissibility of this evidence under section
41 is very fact speci昀椀c.
7.
Even when the admissibility threshold is met, the
court retains the power to evaluate the quality
of the evidence in question.
Particularly, the Court’s application of step 5 did
not develop the understanding of what is intended
to be a ‘proper evidential basis’ from its accepted
de昀椀nition of ‘some material from which it could properly
be concluded that the complaint was false […] [or is]
capable of founding an inference that the complaint was
untrue’ as per M [2009] EWCA Crim 618.
The Findings
In applying the stepped approach outlined above,
the Court found that none of the allegations were
encompassed by section 41 because they were not
allegations relating to sexual behaviour. However,
they found that there was no proper evidential basis
to 昀椀nd the allegations to be false, and therefore
they did not satisfy the test under section 100. This
resulted in none of the domestic violence allegations
nor the 昀椀ve previous rape allegations being admitted
as fresh evidence to re-open the conviction of Mr
Hurley.
In Hurley, despite the large amount of con昀氀icting
evidence on the alleged falsity of the complainant’s
previous allegations, the Court found that they could
not establish a basis of their falsity. This is arguably
an unfair approach to objectively equivocal evidence
whose balance is dangerously tipped towards the
complainant: how can evidence of this kind not be
allowed to be challenged? Particularly, evidence of
witnesses describing Y’s behaviours at the time, the
content of the retraction statements she made to
the police not simply withdrawing her support but
actually saying that at least one of the rapes had not
happened, and of another she said she could not be
sure it occurred in the 昀椀rst place, were not put before
the jury. It might be said that these aspects ought to
have been considered as indicative of at least a layer
of uncertainty in terms of the veracity of her past
allegations thus establishing a basis for their falsity.
Although there may not be any criticism to the
approach taken by the Court of Appeal insofar
as the legal test under section 41 is concerned,
Mr Hurley’s defence was signi昀椀cantly restricted
as he was prevented from cross examining the
complainant over the 昀椀ve previous allegations of
rape she did not want to pursue. Signi昀椀cantly, some
of those allegations were made at a time when she
was described as drinking to excess and living a
chaotic and promiscuous lifestyle, as commented
upon by multiple witnesses questioned by the police
in 2004.
It is hard to understand how this information was
not put before the jury when part of their duty was
to assess the complainant’s credibility. Isn’t this a
clear example of where previous allegations are
truly relevant for the jury to consider when they
weigh her evidence in the case at hand? Although
it is understandable that vulnerable complainants
should be protected by the Courts so that the process
can be as fair and as least intrusive as possible, this
should not interfere with a defendant’s right to a
fair trial and the defence’s ability to challenge the
credibility of a complaint.
It is plain that Y was a vulnerable individual, and had
these previous allegations been allowed as evidence,
her cross examination would need to have been
carefully undertaken by defence counsel within the
remits of the legal framework of section 100.
It is concerning that, in light of the information
presented to the Court of Appeal, Mr Hurley’s
conviction was upheld. Many would question the
safety of Mr Hurley’s conviction when his jury were
deprived of this evidence in their task of assessing
Y’s credibility in her complaint against Mr Hurley.
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