Kirkham, R v

In a sexual-offence trial, evidence of a complainant’s sexual relationship with another person, or a flirtatious remark, is not admissible under Youth Justice and Criminal Evidence Act 1999 section 41 unless it is relevant to the issue in dispute and satisfies the statutory gateway. Sexual experience does not, without more, bear on consent to sexual activity with the defendant on a later occasion.

For sentencing, vulnerability arising from youth and alcohol does not necessarily amount to being particularly vulnerable due to personal circumstances. Where that higher harm feature is absent, the correct guideline category must be used. Multiple rapes and associated sexual assaults may nevertheless justify an upward adjustment from the starting point for a single rape.

The appellant was convicted at the Crown Court at Preston of two rapes, assault by penetration and sexual assaults committed against AB, then aged 17, after a party at his home. His case was that the sexual activity was consensual. AB’s case was that she remained still and did not consent.

At trial, the judge refused applications under Youth Justice and Criminal Evidence Act 1999 section 41 to adduce evidence of AB’s sexual relationship with her boyfriend and an alleged flirtatious comment. She also refused to admit limited video footage from the party. The appellant sought permission to appeal against conviction on the basis that those rulings made the trial unfair. He also appealed against concurrent 12-year sentences for rape, contending that the judge had wrongly treated AB as particularly vulnerable under the sentencing guideline.

1. The application for permission to appeal against conviction was refused. The convictions were not arguably unsafe. The jury had to resolve the direct conflict between the appellant’s assertion of active consent and AB’s account that she lay still, frightened and unresponsive.
2. The judge’s section 41 rulings were unimpeachable. Evidence that AB had a sexual relationship with her boyfriend did not assist in deciding whether she consented to sexual activity with the appellant. It was not suggested that she was sexually naïve, and the jury knew that she intended to share a room with her boyfriend. The alleged flirtatious comment was also irrelevant to consent later that night. It was not evidence of willingness to engage in sexual activity with the appellant and there was no evidence that it influenced his conduct. The judge applied relevance, not a requirement that the evidence be determinative.
3. The video footage did not make the trial unfair. Incapacity through intoxication was not the prosecution case. The trial judge was best placed to assess the limited assistance which the footage could give.
4. The appeal against sentence was allowed in part. AB was vulnerable because she was young and had been drinking, but there was no proper basis for finding that she was particularly vulnerable due to personal circumstances. The rapes therefore fell within category 3A, with a seven-year starting point and a six-to-nine-year range for a single offence.
5. The aggravating features, including abuse of trust, and the course of offending justified an increase above that starting point. An additional adjustment was required because there were two rapes committed in different ways and several sexual assaults. Concurrent sentences properly reflected the whole course of conduct. Concurrent 12-year sentences on the rape counts were quashed and replaced by concurrent 10-year sentences; the remaining sentences and ancillary orders were undisturbed.

• Court of Appeal (Criminal Division) Allowed the appeal against sentence to the extent of substituting concurrent 10-year sentences for the concurrent 12-year rape sentences. Refused permission to appeal against conviction.
• Crown Court at Preston On 23 July 2019, convicted the appellant of two rapes, assault by penetration and sexual assaults. On 24 July 2019, imposed concurrent 12-year sentences for the rape counts, with concurrent sentences for the remaining offences.