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R v Kirk (R v PK; R v TK) [2008] EWCA Crim 434

Admissibility of evidence including bad character, summing up in respect of consent, the approach for two defendants and sentence length

Facts

The two defendants were charged with numerous counts of sexual assault against a child and TK was charged with rape. The offences were committed within the context of a family over a period of 10 years beginning more than 30 years before the trial. The complaints were made many years after the abuse ended. The defendants contended that the complaints were entirely false and that the complainants were colluding. The trial judge allowed evidence of the complaints to be admitted at the start of the trial under Criminal Justice Act 2003, s 120(2). Evidence of another alleged incident was admitted as evidence of P’s bad character. The judge, in summing up told the jury that they must draw a distinction between ‘willing submission’ and real consent. P and T were imprisoned for 11 and 7 years respectively.

Issue

(1) Whether evidence of the complaints should have been admitted at the outset because it was unknown whether it would be suggested that the evidence was fabricated.  (2) Whether bad character evidence could be admitted where the complainant could not be cross-examined. (3) Whether the judge’s summing up regarding consent was correct. (4) Whether the sentences were manifestly excessive in the absence of penetrative sex.

Held

  1. Fairness did not require evidence of the complaints to be excluded. No unfairness was caused by their admission and the defence case was not prejudiced. (2) The evidence of bad character was permissible on the basis that it formed part of the pattern of events connected to the indictment. (3) The jury was not misled by the judge’s use of the term ‘willing submission’. This term was used to inform the jury of the difference between physical restraint and apparent submission which was not full consent. (4) The sentences were not manifestly excessive because of the seriousness and persistence of the defendant’s actions.

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