R v Kirk [2008]

R v Kirk (R v PK; R v TK) [2008] EWCA Crim 434 revolved around the admissibility of evidence, including bad character, the summing up concerning consent, the approach for two defendants, and the appropriateness of the sentence length.

Two defendants facing multiple charges of sexual assault against a child, with one of them additionally charged with rape. The offences spanned over a 10-year period within a family setting, commencing more than 30 years before the trial. The complainants raised their allegations many years after the abuse ceased. Both defendants asserted that the complaints were entirely false and a result of collusion between the complainants.

The trial judge permitted the admission of evidence related to the complaints at the trial's outset under the Criminal Justice Act 2003, Section 120(2). Additionally, evidence of another alleged incident was allowed as evidence of a defendant's bad character. Ultimately, the judge, in the summing up, instructed the jury to differentiate between willing submission and genuine consent, resulting in the defendants receiving prison sentences of 11 and 7 years, respectively.

The first issue addressed whether evidence of the complaints should have been admitted initially, considering the uncertainty of potential suggestions of fabrication. The court held that fairness did not necessitate the exclusion of the complaints' evidence, determining that its admission did not cause unfairness or prejudice to the defence case.

The second issue focused on whether bad character evidence could be admitted when the complainant could not be cross-examined. The court ruled that such evidence was permissible as it formed part of the pattern of events connected to the indictment.

Regarding the third issue, which centred on the judge's summing up concerning consent, the court found that the jury was not misled by the use of the term 'willing submission.' The judge clarified the distinction between physical restraint and apparent submission, emphasising that the latter did not constitute full consent.

Finally, the fourth issue addressed whether the sentences were manifestly excessive, particularly in the absence of penetrative sex. The court determined that the sentences were not manifestly excessive, considering the seriousness and persistence of the defendants' actions. The gravity of the offences justified the imposed sentences.
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