A Tangled Web: The Admissibility of Previous Apparently False Complaints of Rape and Domestic Violence, and Their Effect on Conviction.

Bianca Brasoveanu considers the Court of Appeal’s decision in R v Hurley [2025] EWCA Crim 642.

Introduction

Mr Hurley was convicted of the rape of ‘Y’ and a related sexual offence in 2016, and sought the assistance of the Criminal Cases Review Commission (‘CCRC).

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:

1. 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.
   
   
2. 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.
   
   
3. Two allegations of rape made by Y against her husband H in 2016 and 2018. Following the first 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 the latter allegation, H was interviewed, denied the offence, and Y rang the police a few weeks later saying this rape had never happened.

The Court of Appeal proceeded on the basis that this was all fresh material.

The Legal Submissions

It was submitted on behalf of Mr Hurley that the above three strands of evidence should be admitted, firstly 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.

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 offences is first said to be false: 

1. 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);
   
   
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:
   

(i) 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.

3. False complaints of previous sexual offending 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.
   
   
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
(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 specific.
   
   
7. Even when the admissibility threshold is met, the court retains the power to evaluate the quality of the evidence in question.

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 find 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 five previous rape allegations being admitted as fresh evidence to re-open the conviction of Mr Hurley.

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 significantly restricted as he was prevented from cross examining the complainant over the five previous allegations of rape she did not want to pursue. Significantly, 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 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.

Commentary

Arguably, the most important clarification 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 offences 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.   

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 effect simplify the interpretation of the legislation in question which can fairly be described as ‘labyrinthine’.

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 definition 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.  

In Hurley, despite the large amount of conflicting 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 first 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.

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.