Kirk v R

Under Criminal Justice Act 2003 section 120(2), a previous complaint may be admitted to rebut an allegation that the witness fabricated the account, and may then prove its contents. An early admissibility ruling is permissible where the available material permits a fair decision, but should be deferred where fairness requires it.

Whether a complaint was made as soon as reasonably expected under section 120(7)(d) depends on all the circumstances, including pressures within a close family. In rape cases, consent has its ordinary meaning and must be freely given. A complainant’s lack of physical resistance does not prevent a jury finding submission rather than consent.

Peter Kirk and Terence Kirk appealed, with leave, against convictions at Isleworth Crown Court for historic sexual offences committed within an extended family. Peter Kirk was convicted of numerous indecent assaults and offences of indecency with a child. Terence Kirk was convicted of indecent assaults and rape of JM.

Peter Kirk challenged the admission of delayed complaints, evidence concerning an uncharged incident involving AH, and the exclusion of proposed cross-examination of SC about a later abortion. Terence Kirk challenged the sufficiency of the evidence, the directions on rape and consent, and the fairness of the summing-up. Peter Kirk also appealed an aggregate sentence of 11 years’ imprisonment.

1. The appeals were dismissed. The convictions of both appellants were safe. Peter Kirk’s appeal against his 11-year sentence was also dismissed.
2. The judge was entitled to admit the complainants’ previous complaints under section 120(2) of the Criminal Justice Act 2003. Fabrication and collusion were clearly raised by the defence case, and the evidence was relevant to how and why the complaints eventually reached the police. The early ruling caused no procedural unfairness and did not prejudice the conduct of the defence. The court declined to give general approval to determining such applications before evidence; fairness may require a later ruling.
3. As an alternative route, the question under section 120(7)(d) was fact-sensitive. The complainants’ close family circumstances and the pressures, including self-imposed pressures, to remain silent were relevant. However, admission under section 120(2) made further analysis of delay unnecessary.
4. The admission of evidence about the uncharged AH incident was not erroneous in this trial context. It formed part of the alleged pattern, there was eye-witness evidence, and the court would not disturb the judge’s finding concerning AH’s availability. The court nevertheless observed that the prosecution should consider whether such additional evidence is expedient where there is already substantial evidence.
5. The exclusion of proposed questioning about SC’s later abortion was fair. Its relevance was very limited, it was likely to cause substantial distress, and other evidence of post-abuse contact had been admitted. The court did not need to decide whether section 41 of the Youth Justice and Criminal Evidence Act 1999 applied.
6. On the rape count, consent had its ordinary meaning and had to be freely given. It was for the jury to decide whether JM consented or submitted because of her circumstances. The direction, read as a whole, did not mislead the jury, although the expression willing submission was not commended for future use.
7. The persistent abuse of very young children, serious breaches of trust, absence of remorse, and its grave effects justified the severe aggregate sentence. It was not manifestly excessive.

• Court of Appeal (Criminal Division) In [2008] EWCA Crim 434, dismissed both appeals against conviction and dismissed Peter Kirk’s appeal against sentence.
• Isleworth Crown Court On 9 February 2007, convicted Peter Kirk and Terence Kirk of the historic sexual offences charged. Peter Kirk received an aggregate sentence of 11 years’ imprisonment; Terence Kirk received seven years’ imprisonment.