Kirk v R [2008] EWCA Crim 434

[2008] EWCA Crim 434Case Nos: 200701418 B1 &200701421 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HIS HONOUR JUDGE KATKHUDA
T2006/0867
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/03/2008
Before
LORD JUSTICE PILLMR JUSTICE PITCHFORDMR JUSTICE WALKER
Between
Peter Kirk and Terence KirkAppellantsRRespondent
Mr N Dunham (instructed by Attridges Solicitors) for Appellant Peter KirkMiss L Matthews (instructed by Owen White & Catlin Solicitors) for Appellant Terence KirkMr S Carr and Mr S Sharghy (instructed by CPS) for RespondentHearing Hearing date : 15 January 2008
Judgment
[1]On 9 February 2007 in the Crown Court at Isleworth before His Honour Judge Katkhuda and a jury Peter Kirk was convicted of thirteen offences of indecent assault contrary to Section 14(1) of the Sexual Offences Act 1956 (Counts 1 to 7, 17, 23 to 27), four counts of indecency with a child (counts 8 to 11) and one count of indecent assault contrary to Section 15(1) of the 1956 Act (count 18). His brother, Terence Kirk, was convicted of four counts of indecent assault contrary to Section 14 of the 1956 Act (counts 12 to 15) and one count of rape, contrary to Section 1(1) of the 1956 Act (count 16).[2]Peter Kirk was sentenced to a series of consecutive sentences: 3 years imprisonment (count 1), 2 years imprisonment (counts 2, 3, 4, 5, 6 and 7 concurrent with each other), 18 months imprisonment (counts 8, 9, 10 and 11 concurrent to count 1 and with each other), 2 years imprisonment (counts 17 and 18 concurrent with each other), 2 years imprisonment (counts 23, 24 and 25 concurrent with each other), and 2 years imprisonment (counts 26 and 27 concurrent with each other). The total sentence was, therefore, one of 11 years imprisonment.[3]Terence Kirk was sentenced to 7 years imprisonment on count 16 and 18 months imprisonment on each of counts 12, 13, 14 and 15 concurrent with each other and with the sentence on count 16. The total sentence was 7 years imprisonment. Ancillary orders were made against both men.[4]Peter Kirk and Terence Kirk appeal against conviction by leave of the single judge.[5]The alleged offences were committed within a family. Peter Kirk was married to CK (nee C) who was the aunt of three of the complainants, JM (dob 25.2.68), AM (dob 3.3.67) and SC (dob 2.11.77). He was the step uncle of the complainant NN (dob 5.9.71). The fifth complainant, EK (dob 4.11.78), was his daughter. The prosecution case was that over a period of more than ten years, beginning in the mid-1970s, Peter Kirk abused the five complainants while they were still children. He was also accused of further acts of abuse, not subject to counts in the indictment, against NC (dob 13.11.64), a friend of another niece of his wife, who has since died, and AH, another niece of his wife, who suffered from Asperger’s Syndrome. The offences alleged against Peter Kirk’s brother, Terence Kirk, were that he too assaulted JM and that he raped her when she was fifteen years old.[6]It is necessary to summarise the allegations. On count 1 it was alleged that Peter Kirk indecently assaulted JM when she was between 6 and 8 years old by touching her vaginal area while giving her a piggy back. The allegation on counts 2, 4 and 6 was that he indecently assaulted her when under the age of 13 (counts 2 and 4) and under the age of 16 (count 6) by touching her vaginal area with his fingers. This form of abuse was alleged to have happened many times and the counts were sample counts.[7]On counts 3, 5 and 7 it was alleged that Peter Kirk indecently assaulted JM while under the age of 13 (counts 3 and 5) and under the age of 16 (count 7) by performing oral sex on her. Counts 8 and 9 alleged similar conduct while she was under the age of 14. This form of abuse also happened many times over a period of years and the counts were sample counts. On counts 10 and 11, it was alleged that Peter Kirk compelled JM to masturbate him, while she was under the age of 14. Count 11 related to a specific occasion when they were playing Monopoly together. This form of abuse is alleged to have happened many times over a period of years and count 10 was a sample count to reflect this. On count 17 it was alleged that Peter Kirk indecently assaulted NN while she was under the age of 13 by performing oral sex on her while his brother Terence and JM were present in the same room and while CK was asleep in the room.[8]On count 18 it was alleged that Peter Kirk indecently assaulted AM, a male, while under the age of 16 by French kissing him in shop doorway. On count 23 it was alleged that Peter Kirk indecently assaulted his daughter, EK, while she was under the age of 13, by touching her vaginal areas with his fingers while she was lying in bed. Counts 24 and 25 alleged that he had indecently assaulted her while she was under the age of 13 by performing oral sex on her while she was lying in bed. This was alleged to have happened on four occasions and count 25 was a sample count.[9]On count 26 is was alleged that Peter Kirk indecently assaulted SC while she was under the age of 13 by touching her vaginal area with his fingers while she was lying in bed at the appellant’s house. The allegation in count 27 was that he indecently assaulted SC while she was under the age of 13 by fondling her breasts under her clothes following a New Year’s Eve party.[10]Count 12 alleged against Terence Kirk that he indecently assaulted JM while she was under the age of 16 by French kissing her while she sat on his lap. This is alleged to have happened at the same time as Peter Kirk was performing oral sex on NN (count 17). On counts 13, 14 and 15 it was alleged that Terence Kirk indecently assaulted JM while she was under the age of 16 by touching her vaginal area with his fingers on a number of occasions while Peter Kirk was also present. On count 16 it was alleged that Terence Kirk raped JM when she was under the age of 16 years.[11]Both appellants claimed that none of the alleged incidents had occurred. On behalf of Peter Kirk, it was submitted that the allegations were deliberate lies and the result of collusion between complainants, possibly in support of CK with whom by then the appellant had been through a fractious divorce. Terence Kirk claimed that the allegations made against him by JM had been invented.[12]We do not propose, beyond the summary already given, to set out the evidence of the complainants in great detail, save for certain incidents. No complaint is made about the way the evidence was summarised by the judge in his summing-up.[13]JM described the sexual conduct towards her from the age of 6. JM saw Peter Kirk at least a couple of times a week and got on very well with him. She used to baby sit for his children. It was not until she reached the age of 14 that she realised that what he had been doing was wrong. He would allow her to smoke and would ply her with alcohol even when she was under 11 years of age. Count 6 had also involved a friend, NC, when they were on holiday in Devon.[14]On one occasion she and her cousin, NN, baby sat at Peter Kirk’s house. Peter came home with his wife who fell asleep on the sofa, and Terence Kirk. The complainant started French kissing with Terence Kirk (count 12). CK turned the lights on and the complainant saw that NN had her jeans down and Peter Kirk had been performing oral sex on her (count 17). CK threw the girls out of the house.[15]When the complainant was 14 years old, Peter Kirk turned up at her school in a van and wanted her to have sex with him in the rear of the van. She refused and said if he ever touched her again she would scream. She saw very little of him during the next five years and did not discuss with any outsider what had happened. It was a secret she shared with her siblings. She knew that her sister, CM (dob 4.11.64), was also being abused.[16]Terence Kirk also touched her private parts. Peter Kirk was usually present (counts 13, 14 and 15). When still under 14 years old, the complainant ran away from home. When she had nothing to eat and was alone she went to see Terence Kirk who worked in a minicab office. She waited there for hours until the office emptied. He had sexual intercourse with her in return for providing her with £3.25 to buy food.[17]The complainant had later spoken to CS about the abuse and to a psychiatrist and a counsellor. She decided to make a statement to the police in 2006, 20 years after the abuse had ended, when she heard that NN had come forward to the police. She then told her brother and sister that she had made a statement.[18]In cross-examination, the complainant accepted that she was at a wedding with Peter Kirk in 1992, when she was 24 years old, and had acted normally towards him. She said that she had had a very strange, bizarre relationship with the appellant. We will refer in more detail to the events the subject of count 16 concerning Terence Kirk.[19]NN gave evidence that, when she was aged between 8 and 10, she went to Peter Kirk’s house with JM to baby sit. After Peter Kirk had returned home, he turned the light out, sat her on a chair, took her trousers down and performed oral sex on her (count 17). JM and another man were present. When the lights were switched on, CK started shouting at her and she and JM were made to leave the house. She was made to feel as though she had done something wrong. Over the years she had told members of her family about what had occurred and she contacted JM about it in 2006.[20]EK said that she was afraid of her father because he had a temper and would drink a lot. She had vague memories of inappropriate behaviour towards her from the age of 7 or 8. She gave evidence of her father performing oral sex on her on four occasions. These ended when she reached the age of 10 years. She had later told her partner, her psychiatrist and her mother, of the conduct. The police approached her after others had made allegations. She was very close to her mother but did not take sides during the divorce proceedings.[21]CK said that drink played a big part in their lives and they would let the M children drink in front of them. She too gave evidence of the baby sitting occasion in about 1981. She heard Peter Kirk saying to NN “take them down” when the room was in darkness. She switched on the lights and observed a situation which she knew was wrong and started shouting. She tried to discuss the incident with Peter Kirk but he would not talk about it and she had not discussed it with NN until very much later. Her divorce from Peter Kirk had not been friendly and there had been many arguments.[22]SC gave evidence that she had stayed over at Peter Kirk’s house when she was 7 or 8. Peter Kirk came into the room and placed his hand inside her underwear and stroked her vagina for about 2 minutes. On a later occasion, at a New Years Eve party, at her home, Peter Kirk came into the room, knelt down in front of her and began to rub her breasts with his hands under her clothes. When she indicated her displeasure, he left the room. She did not tell anyone about these incidents until she told the police. She had been close to CK and EK and knew that the break-up of the marriage had been difficult.[23]AM gave evidence that he saw JM squeezing Peter Kirk’s groin area, over his clothing, when they were playing Monopoly. When, later, he brought it up, Peter Kirk French kissed him in a shop doorway and started laughing about it (count 18). Further sexual acts occurred between him and Peter Kirk. He never spoke to his sister, JM, about what was going on.[24]CC, mother of NC, said that her daughter, then aged 12 or 13, returned from holiday with CM, and, referring to Peter Kirk, said “he’s disgusting”. She approached CM’s parents with her concerns. CS gave evidence that when JM was 16 or 17 she informed her that she had been sexually abused by Peter Kirk. She was very distressed and CS encouraged her to tell her father and go to the police.[25]SN, NN’s mother, said that when NN was 14 or 15, NN told her that Peter Kirk had touched her when she was younger. She was very upset and crying but did not pursue the matter. Later, she said that Peter Kirk had performed oral sex on her. They spoke about reporting the matter to the police but decided against it as NN was too distraught. PM, father of JM, CM and AM, confirmed that CM and JM saw Peter Kirk a few times a week. After the holiday to Devon, NC’s mother spoke to her making an allegation about Peter Kirk. JM and CM were asked about it but said that nothing had happened.[26]CM said that when her cousin, AH, was 3 years old, she saw Peter Kirk opening her knickers. She also saw Peter Kirk put his hands inside EK’s knickers and rub her. CM told him that he should not be doing that.[27]DC Sara Dickson gave evidence that the police were first contacted by NN in December 2005. Contact was made with JM and then with other members of the M and K families.[28]The appellant, Peter Kirk, gave evidence that he and his brother Terence saw each other probably every week during the 1970s and 1980s. He committed no sexual offences and saw no such offences by Terence. In 1976 he formed a relationship with CC as she then was and they moved into her parents’ house. He would have seen the M children from time to time but not very often. Between 1977 and 1980 he and CK lived in the Peterborough area. The M family visited them on only one occasion during that time. On visits to London, he met the M parents but not at their house. He had very little contact with the children who were “just there”.[29]When Peter Kirk and CK moved back to London the relationship between the M family became closer. They visited each others houses and the M children came to the Kirk house without their parents. He thought that was because he was more tolerant with them. He allowed them to smoke but not to drink alcohol. JM may have baby sat once or twice. There were family parties during which the children would run all over the house. He did not take JM away to a room on her own. He did not abuse her. He did not arrive at her school and invite her into the back of his van. When she was 15 or 16, she was flirtatious with him but he made it clear that he was not interested.[30]He remembered an occasion when JM and NN baby sat for him when he had been drinking with CK and with Terence Kirk. On their return, he remembered an argument between CK and the girls. He did not know what the argument was about. He took the girls home.[31]The appellant accepted that he went on holiday to Devon with the M’s as well as NC. Nothing untoward happened. There was an incident with AH when she was about 5 or 6. He found her with a cigarette butt, took it from her and probably told her off. He did not act inappropriately. He did play Monopoly with JM and AM at his house but no sexual activity took place.[32]In later years, he had seen JM at family parties, weddings and funerals and there had been no problems between them and no animosity. When he separated from CK in 2001, she was very bitter about the resulting divorce settlement.[33]Peter Kirk did not have a close relationship with his daughter EK. She was emotionally cold. There were no specific problems between them. He never sexually abused her. She came to live with him following the divorce and they got on a lot better. She allowed him to baby sit for her friend’s young daughter.[34]There was no improper conduct with SC. On New Years Eve he would have been working as a cabbie and would not have arrived at the M’s house until 2 or 3 am. Until about 2002, he saw SC about every 2 months when he played snooker with her father. She acted normally towards him.[35]The only reason he could think of as to why the allegations had been made against him was because the complainants respected CK who was very bitter about the divorce settlement. SK, son of Peter Kirk, said that the M children did visit his father’s home. He never saw his father act inappropriately and he never heard any rumours. He had a very good relationship with his father. EK had never told him that she had a problem with their father.[36]The daughter of Peter Kirk’s current partner gave evidence that, when she was 15 years old, she saw him nearly every day. She was never subject to inappropriate behaviour by him.[37]The appellant, Terence Kirk, said that he did not know JM well. He may have met her at parties when she was 13 or 14. He remembered an incident at Peter Kirk’s home when they had returned, with CK, from the pub and a huge row broke out with CK screaming and shouting. He did not remember any children being present. He did not abuse JM in whom he had no interest whatsoever.[38]There was an occasion when JM came to the cab office where he was working. She asked for cigarettes not money and at no time came to the office hungry. There were always people in the office and it was very unlikely that he would ever be on his own there. He had not had sexual intercourse with her. He got on well with her. She was flirtatious towards him but he did not take it seriously or act upon it.[39]SG gave evidence that he worked as a controller in the same cab office, which was open 24 hours a day. There were always members of the public or drivers in the office. It was rare for the place to be empty.

Peter Kirk

[40]The principal ground of appeal of Peter Kirk is that the judge admitted evidence of complaints of abusive conduct by him made by several of the complainants years after the events complained of. Section 120 of the Criminal Justice Act 2003 (“the 2003 Act”), which provides two routes by which the court may permit such evidence to be admitted states, in so far as is material:
“(1) This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. (3) . . . (4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if – (a) Any of the following three conditions is satisfied . . . (7) The third condition is that: (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, (d) the complaint was made as soon as could reasonably be expected after the alleged conduct, (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter.”
Of those sub-paragraphs, it is the requirement in (d) which, it is submitted, was not satisfied. (a) Any of the following three conditions is satisfied . . . (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, (d) the complaint was made as soon as could reasonably be expected after the alleged conduct, (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter.”[41]Leave to admit the complaints were sought at the beginning of the trial. No voir dire was requested. The point is raised that the requirements in Section 120(2) were not at that time satisfied because it had not at that stage been suggested by way of evidence or cross-examination that the proposed witnesses’ oral evidence had been fabricated. For the prosecution, Mr Carr submits that, in the course of the complainants’ evidence, fabrication would inevitably be alleged, and it was better to have the issue resolved at that stage.[42]Thus, in a case such as the present, there are two possible routes to admission, first, to rebut a suggestion that the complainants’ evidence had been fabricated and, secondly, as complaints about conduct made as soon as could reasonably be expected after the alleged conduct. At the beginning of a trial, a difficulty facing the judge and the parties is to decide when to make, and to rule on, the application whether complaints are to be admitted. In this case, the prosecution applied and the judge ruled at the beginning of the trial. No voir dire was requested and the judge had to assess the situation on the information available to him.[43]For the appellant Peter Kirk, Mr. Dunham now raises the point that it could not at that stage be known whether it would be suggested that the complainants’ evidence had been fabricated. However, he realistically concedes that it was always probable that the case would be conducted as it was conducted, that is on the basis that the complainants’ oral evidence had been fabricated and was the result of collusion between them: the defence statement had alleged fabrication. A suggestion that the cross-examination might have been conducted in a different way has not been particularised. When the judge considered whether the complaint was made as soon as it could reasonably be expected to have been made, far more information was likely to emerge in the course of the trial than was available at the beginning. When giving his ruling, the judge stated:
“The question to be decided, are these witnesses to be allowed to give their evidence of complaint of what they say happened to them, and could it be said it was done as soon as could reasonably be expected after the alleged conduct?”

The judge said:

“it all depends on the circumstances of each complaint and how it arose”
. Having considered the circumstances, he concluded:
“One can say with confidence that these matters really in my judgment are both admissible and fair to be admitted and the jury ought to consider them.”
[44]In our judgment, no injustice has been done by the procedure followed. While the correctness of the ruling must, of course, also be assessed, subsequent events did not in this case reveal any procedural unfairness. Nothing emerged which might have led to a different ruling and the conduct of the defence case was not prejudiced.[45]No objection was taken to evidence that the complainants had at one time or another spoken to each other; JM and NN (count 10, and also count 17 which involved Terence Kirk). EK and SC had spoken to each other as had JM, AM and CM. The objection was to complaints made outside that circle and to subsequent repeat complaints.[46]The alleged abuse of JM ended in about 1982, when she was 14 years old. She first complained to CS when she was 16 or 17 years old and complained again when she was assessed by a psychiatrist in 1993. NN first complained to her mother, SN, when she was about 15 years old but was adamant that she did not want to go to the police and she did not go into much detail. She went into more detail with her mother in about 2002.[47]EK first complained in 2003 when she was being assessed by a psychiatrist. SC and AM made their first complaints when interviewed in 2006. It is not suggested that, until the police were involved, the complainants knew of each others’ complaints to third parties.[48]Neither counsels’ submissions nor the judge’s ruling distinguished clearly between the two possible routes to admission. On behalf of the appellant, Mr Dunham submits that the wording of Section 120 of the 2003 Act makes it clear that a blanket introduction of consistent complaints was not contemplated. Complaints so long after the event should not have been admitted. The subsequent complaint, made by JM to the psychiatrist, should not in any event have been admitted. From the age of 14, JM had distanced herself from Peter Kirk and there were few constraints on her actions. NN moved away from the area almost immediately after the conduct complained of and would not have been under any pressure to keep quiet. EK would have been expected to confide in her mother at an earlier time and moved well away from the appellant in 2001. It is submitted that the judge erred in allowing evidence of complaints which were self-serving.[49]For the respondent, Mr Carr submits that the wording of Section 120, with the absence of the word “recent” before “fabrication” and the absence of the concept of first opportunity in relation to complaints, creates a broad power. Section 120(7)(d) requires a new approach to the entire question of the admissibility of complaints, he submits. In R – v – O (2006) 2 Cr App 27, this court, Rose LJ Vice President presiding, supported that view. McCombe J, giving the judgment of the court, stated at paragraph 24:
“The statutory provisions are free standing and provide their own criteria”
. The court also held that the statute made possible:
“The admission of more than one hearsay statement as a complaint by the alleged victim of crime”
. The court also noted that statements admitted are admissible to prove the truth of the matter stated and not merely to demonstrate the consistency of the complainant’s account. In the present case, the judge did not, as he might have done, direct the jury to that effect.[50]In R – v – O, the trial judge had ruled that whether a complaint was made as soon as could reasonably be expected after the alleged conduct (Section 120(7)(d)) “very much depends upon the circumstances and the person to whom the complaint is made; whether something is reasonably to be expected depends upon the context in which it takes place and the person to whom the information is imparted”. This court approved that approach and upheld a decision to admit, in a case involving sexual offences, a statement made by the complainant to her elder brother. It was made four months after the complainant, aged 17, left home and complained to the mother of a long standing school friend that she had been abused over a long period. Mr Dunham makes the point that the delays were very much longer in the present case.[51]Complaint is also made of the judge’s summing-up of the relevance of complaints. In his summing-up, the judge considered the lateness of the complaints in considerable detail. The issue had been fully and properly explored in cross-examination of the complainants. We cite extracts from the judge’s summary which, it is submitted by the prosecution, justify the decision that the complaints were made “as soon as could reasonably be expected after the alleged conduct”.[52]JM said:
“I did not discuss it with anyone. U’s children knew what was happening, but it was a taboo subject,”
She said:
“And I had broken away from the family and started getting on with my life. With my sister CM, we had this secret, and we didn’t share it.”
Even when confronted by her parents – do you remember after the holiday in Ilfracombe which I mentioned a few moments ago – and asked if anything to do with Peter had happened on the holiday, she said ”None of us would tell. We lied. I thought he would be in serious trouble and I didn’t tell. It was only recently when NN made a statement that I decided also to make a statement.” She was cross-examined about what she said. She said: “I lived in mental torment for years. The first occasion in the park, I was a little girl, and I was really shocked. I did not feel strong enough to ask what he was doing. It was the way that he manipulated me; being nice and letting me do things which others wouldn’t let me do. When by the age of 14, I discovered it was all wrong, it did occur to me to go to the police, but I didn’t. A lot of these things are still suppressed. Even after Ilfracombe, I was told by my family that I was a liar and a tramp thanks to him”.[53]NN was also asked:
““Well why didn’t you say anything about this?”
She said to you:
“At the time, I knew nothing about sex. I did not feel that I could say anything. I was scared. I felt it was all my fault. When we got to JM’s parents’ house, I did not tell him.”
You remember when they walked back they said:
“And after that I did not discuss it with JM. I did not know what I had done wrong, but because I was shouted at by CK, I thought I had done something wrong. Four years ago, I told my mother everything. I don’t know why I did not report it when I was 15, and when I told my mother that it had happened to me, as an adult, I know it was not my fault. I felt guilty that I did not do something about it. If he did it to me, he’s doing it to others. It affected me, and I reported it to the police. I felt like never thinking about it again, but in things like this, it comes back.””
The explanations of the other complainants were also summarised.[54]In his summing-up, the judge also carefully directed the jury on the question of collusion and reminded them of the appellant Peter Kirk’s evidence that in his opinion the main conspirator was his ex-wife CK:
“He believes that she must be the one at the hub of all these things”
. The judge gave a careful direction as to how the jury should approach the evidence of the complainants in the light of the allegation of collusion. He explained the difficulty a defendant has in refuting sexual allegations, particularly where they concerned events many years before: “You must appreciate that because of this, there may be a possibility of a real prejudice to the defendants. This possibility must be in your minds when you decide whether the prosecution have made you sure of the defendants’ guilt”.[55]In our judgment, the judge was entitled to admit evidence of the making of the complaints, by virtue of Section 120(2) of the 2003 Act and fairness did not require their exclusion. Further, as to Section 120(7), the extended families to which each of the complainants belonged, or were attached, and the complications arising from that, was a factor to be taken into consideration. The complainants spoke of them. Belonging, as they did, to an outwardly respectable and close-knit family, there were considerable pressures on each of them, including self-imposed pressures, to keep events to themselves. Of course, it was for the jury to reach conclusions as to the reasons for the delay in complaining, and the implications of that.[56]While it would not in itself justify admission, the nature of Peter Kirk’s defence was such that it was necessary to explore how and why complaints came to be made to the police in 2005 and 2006 and this inevitably involved investigation of what happened during the intervening years and whether there had been collusion at any stage. Fairness required that evidence of complaints during the intervening years were known to the jury and we see no error in the judge’s decision to admit the complaints under Section 120(2).[57]That being so, further analysis of the time factor under Section 120(7)(d) becomes unnecessary. We are conscious of the very considerable passage of time in the case of such complaint. Had the circumstances, including the defence to be run, been different, a decision to admit could have been erroneous. However, for reasons given, we are not prepared to hold that the judge’s decision was erroneous.[58]We are not giving general approval to rulings under Section 120(2) and Section 120(7)(d) being given before evidence is heard. There will be cases in which fairness requires that the decision be deferred until a later stage. The advantage of an early ruling is that the trial is not disrupted by the possibility of repeated submissions as to admissibility and both prosecution and defence will have the advantage of knowing what is to be in evidence when putting their cases.[59]We see no unfairness or deficiency in the judge’s summing-up of the evidence of complaints and the case of collusion put by Peter Kirk. The absence of a direction, which would have been expected to support the prosecution, that the complaints, once submitted, were evidence of “any matter stated”, did not create unfairness for the appellant. The judge emphasised that the question to be answered was whether the jury were sure that the allegations were true. There was no unfairness in relation to the evidence of complaints and the way it was dealt with.[60]In considering the merits of the grounds of appeal, and the safety of the verdicts, the prosecution invite the court’s attention to the evidence of no fewer than 13 people who were alleged to have lied about the abuse they had suffered, the abuse they had witnessed or the complaints made to them. The people came from two different extended families and included three generations. The abuse was alleged to have progressed from complainant to complainant, starting with JM. When the abuse of her ended, the abuse of EK and SC began, EK then being the same age as JM had been when first assaulted. In relation to some of the incidents, evidence was given by more than one witness.[61]As a separate ground, complaint is made about the admission of evidence of an alleged incident involving AH, daughter of MH, sister of CK. CM, JM, EK and CK gave evidence that at a family christening party, AH, then 3 years old, had alleged that the appellant, Peter Kirk, had put his hands down her knickers. CM alleged that she had witnessed the incident. As

the judge put it:

“CM says she saw him [Peter Kirk] put his hand in her underwear, in her knickers, and others had heard about it from other sources”
. AH was not called to give evidence.[62]The incident was not the subject of a count in the indictment. The judge admitted evidence of bad character, even though AH did not give evidence, as going to establish that Peter Kirk had a sexual interest in children and thereby a propensity to commit the type of offence with which he was charged (Sections 101(1)(d) and 103(1)(a) of the 2003 Act). Whether he had the propensity was an “important matter in issue” between the parties, within the meaning of Section 112 of the Act. It was fair to put the evidence before the jury, the judge ruled.[63]AH had not given a statement to the police. Her mother did not want her to become involved in the case because of the mother’s medical condition, that is, cancer and that of AH, said to be suffering from Asperger’s Syndrome. Thus it has also to be considered whether the judge was right to admit evidence of complaints made by AH when the complainant was not herself giving evidence. Mr Carr submits that it was in the interests of justice to admit the evidence (Section 114(1)(d) of the 2003 Act) and that AH was unfit to be a witness because of her mental condition (Section 116(2)(b)).[64]Mr Dunham submits that all evidence concerning AH should have been excluded. She could not be cross-examined. The passage of time made investigation on behalf of the appellant impossible. The evidence that she was unfit to be a witness was unsatisfactory. Moreover, the detail in the complaint to JM was inconsistent with the eye-witness evidence of CM. Even if the evidence of CM was admissible, the hearsay evidence in its support should have been excluded. Mr Dunham further submits that the incident involving AH had little importance in the context of the case as a whole.[65]Mr Carr submits that the admission of the evidence should be seen in the context that no objection was made to the evidence of two other complainants, CM and NC, relating to incidents involving them which were not on the indictment. CM gave evidence of abuse of herself. NC was CM’s friend. They were both profoundly deaf. NC died before the trial but had complained of abuse by Peter Kirk while on holiday with the M family in Devon. Evidence of that complaint was admitted without objection.[66]Peter Kirk admitted that there had been an incident involving AH at a family party but denied that it involved misconduct. The judge gave a careful direction as to how the jury should consider evidence of bad character.[67]In context, the decision to admit cannot in our judgment be held to be erroneous. The incident did form part of the pattern alleged. There was evidence from an eye-witness. We are not prepared to overrule the judge’s finding about the availability of AH. Admissibility must be considered in the context of the particular case and the other evidence called. In a different context, one without the family circumstances, the bulk of the evidence available and the lack of objection to evidence of other incidents not charged, the court might well take a different view. This ground of appeal does not, in any event, give us cause for concern about the safety of the verdicts. However, we do query (though the decision must be theirs) whether it was expedient for the prosecution to seek to adduce evidence of the AH incident, given the bulk of evidence available. The prosecution are not obliged in every possible situation to inveigh the support of Sections 101 and 114 of the 2003 Act to adduce evidence.[68]The third ground of appeal is based on the refusal of the judge to permit cross- examination of SC in relation to an abortion. In counts 26 and 27, it was alleged that the appellant Peter Kirk indecently assaulted SC the daughter of his wife’s sister, while she was under the age of 13. The appellant claimed that her evidence was fabricated. It was proposed to be put to her that, long after the date of the alleged offences, SC became pregnant and there was an argument about whether she should have an abortion. It was claimed that she specifically asked him to take her to the clinic to get an abortion. In cross-examination, SC had already accepted that she had seen the appellant after the alleged abuse had ended and that she had felt “fine” around him.[69]The judge excluded the defence having considered Section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”). The judge stated: “And I look at Section 41 and the question of whether it assists the defence to establish that her relationship was in effect such that she went with him, even went in his company to have an abortion, whether that would help the jury in reaching a decision about whether these assaults of a sexual nature happened, sexual abuse, would have been proved either positively or negatively from the point of view of the jury. It is my opinion in the interests of justice that questions such as these will only embarrass and in effect humiliate this witness for unnecessary reasons, and for that reason I say that these questions should not be asked of her”.[70]Mr Dunham submits that the appellant was entitled to pursue the point to demonstrate that SC had behaved towards the appellant in a manner wholly different from that to be expected from someone who had been sexually abused by him as a child. When questioned about post-abuse contacts with the appellant, it was always about occasions when others had been present. Questioning about the abortion would have shown that she was prepared to be alone, and in different circumstances, with the appellant. Mr Dunham further submits that cross-examination about an abortion does not involve cross-examination about “sexual behaviour of the complainant” as defined in Section 41(1)(b) of the 1999 Act. It does not cover events such as an abortion, which arise from sexual activity. Even if it was, fairness required its admission under Section 41(3) and Section 41(5), it is submitted. If the jury had known of the circumstances surrounding the abortion, they might have come to a different conclusion about the truthfulness of SC and, consequently, the other complainants.[71]Mr Dunham accepts that abortion is an emotive subject and unpleasant to discuss. He accepts that it was evidence of a proposed abortion that he wanted to introduce and would not have been satisfied with a question about a visit to a clinic with the appellant without mentioning the alleged reason for the visit.[72]For the respondent, Mr Carr submits that Section 41 did apply. In the circumstances, the allegation amounted to cross-examination as to credit and was not admissible. Evidence of continuing contact between the appellant and SC had already been adduced. Refusal to admit cross-examination on this point cannot, in any event, affect the safety of this or the other verdicts.[73]In our judgment, the judge was entitled to exclude the proposed cross-examination. Whether true or not, it was likely to cause considerable distress for SC. Its very limited relevance does not justify its admission in circumstances in which other contacts between defendant and complainant had been proved. The claimed significance of the questions, to demonstrate that the witness had visited an abortion clinic, underlines the overall fairness of excluding it. Unlike R v F [2005] 1 WLR 2848, this was not a case in which sexual relations between the defendant and the complainant had resumed when the complainant was an adult. That might well throw light on the conduct in earlier years. Evidence that, some time after the alleged abuse, a complainant was prepared to ask her alleged abuser to accompany him to an abortion clinic, barely supports a case that she was prepared to lie, and join in 2005 or 2006 a conspiracy to lie, about events many years before.[74]We do not find it necessary to rule whether Section 41 could apply. Even if it does not, the judge was entitled, without unfairness to the appellant, to exclude it. It could have added to the evidence already given of post-abuse contacts, but there is no real possibility that it would have affected the jury’s verdict. Indeed, if it was established that the appellant was the member of the family to whom SC turned to accompany her to the abortion clinic, the evidence may have been distinctly double-edged in relation to her view of him and his qualities.[75]Mr Dunham submits that the combined effect of the several rulings complained of might have tipped the balance in favour of conviction. We do not accept that submission. We have already referred to the strength of a case based on the evidence of a succession of eight complainants covering a period of over ten years, and circumstantial evidence. A case of fabrication and collusion was put to the jury. The appellant had every opportunity to present that case to the jury and to investigate the evidence of the complainants, the sequence of events over a long period of time, and the allegation of collusion. They were properly directed about delay, the appellant’s difficulties in refuting allegations about conduct many years earlier and about the care to be taken.[76]In our judgment, neither individually nor collectively, do the submissions on the appellant’s behalf cast doubts upon any of the verdicts against him.

Terence Kirk

[77]On behalf of the appellant, Terence Kirk, it is first submitted that, on count 12, there was no evidence to establish an indecent assault. On counts 13 to 15, it is submitted that the evidence was too vague to justify a conviction and that the evidence of JM was inconsistent. She could give no details. The appellant could not defend himself against such vague allegations. In his summing up, the judge had misdirected the jury, it is submitted, by stating that assaults had happened “a few” times and not “so few” times.[78]The most serious count is that of rape in count 16. It is submitted that JM accepted that the sexual intercourse which she claimed took place in the minicab office (and denied by Terence Kirk) was undertaken willingly. The judge should have acceded to the submission of no case to answer.[79]Having allowed the case to go to the jury, the judge, it is submitted, misdirected them in repeatedly describing JM’s situation when she went to the office as “desperate”, a word she had never used. The judge misdirected the jury on the meaning of the word “willing” which he distinguished from “consent”. The directions were such that, once the jury were satisfied that there had been sexual intercourse, they were bound, it is submitted, to convict of rape.[80]Terence Kirk’s further submission is that his defence was prejudiced because, in his summing up, the judge referred to the defence of the two defendants as if it were one and the same, that is, that the complainants had colluded and conspired together. That was not correct and was damaging to Terence Kirk, it is submitted, in circumstances in which, as put on his behalf, the case against Peter Kirk was strong. Only one witness, JM, gave evidence against Terence Kirk and his defence was simply that the events described by her did not happen. Following the summing up, the jury may have been unable to differentiate between the cases against the two appellants.[81]It is further submitted that evidence should have been admitted to show that JM was sexually experienced at the time of the alleged rape. The jury were misled into believing that she was a sexually inexperienced child.[82]We have no difficulty in upholding the judge’s conclusion that there was a case to answer on counts 12 to 15. Count 12 alleged an indecent assault on the same occasion as Peter Kirk is alleged to have assaulted NN, and described in paragraph 14 of this judgment. Given the circumstances, it is no defence that the initiative for the “French kiss” was that of JM.[83]As to counts 13 to 15, the judge has set out the evidence of JM in his summing-up. It justified the case going to the jury. The jury had ample opportunity to assess the evidence of JM, who also claimed that she had been systematically abused by Peter Kirk. When summing-up, the judge did use the expression “so few occasions”, in relation to Terence Kirk.[84]The case of Terence Kirk on these counts was sufficiently put. We have no doubts about the safety of the jury’s verdicts.[85]The prosecution case on count 16 was that sexual intercourse had occurred in circumstances which amounted to rape. By the age of 14, JM had been abused by both appellants. She had been running away from home because she was being bullied and blackmailed by her brother about what Peter Kirk had done to her. She slept on the streets or sometimes at the homes of friends. She was tired, dirty and hungry and had nowhere to go. One night her desperation was such that she went to the minicab office, where one of her abusers worked, as the only place left to her to get help and, in particular, something to eat. She waited for hours until only Terence Kirk was in the office. They had sexual intercourse on a sofa. JM was paid £3.25 with which she bought food.

The judge summarised the complainant’s evidence:

[86]“I was very hungry and needed to eat so I went to the cab office . . . All I can say is that I ended up having sex with Terence for £3.25. I used the money for food”.[87]The issues were, first, whether sexual intercourse had occurred. That was denied by Terence Kirk. If it did occur, did JM consent or, if not, did Terence Kirk reasonably believe that she consented?[88]The judge dealt with both the facts and the law in considerable detail. He stated that “consent in the context of the offence of rape is a word which must be given its ordinary meaning”. He added:
“consent must be freely given, and consent, members of the jury, covers a wide spectrum of mind from actual desire on the one hand to reluctant acquiescence on the other”
. He added:
“The question of whether she was consenting is a matter of fact for you to decide”
. The judge added a direction on the difference between consent and submission, using the expression “your will was overborne” in relation to submission. The judge stated:
“She had to wait a few hours and then ended up having sexual intercourse with Terence Kirk in return for £3.25 so that she could get something to eat”
.

The judge asked rhetorically:

“So what was in her mind? Did she agree to have sex, or did she just submit to get £3.25?”
[89]The prosecution case was summarised in this way:
“It means, say the Crown, that in effect, the defendant took advantage of a hungry and vulnerable child whom he knew had been abused by his brother and to a lesser extent by himself, which means that she was submitting because her will was overcome through hunger, and I will use the word desperation again, and that say the prosecution is not true consent”
. It is correct that the judge used the word “desperate” to describe the circumstances a number of times. He acknowledged to the jury that she herself had not said “I was desperate”, adding the word had been used by the prosecution “because of what she described her situation to be at the time”.[90]The judge also gave a detailed direction, which need not be analysed in detail, as to the appellant’s putative state of mind about whether she was consenting. The judge made clear that the appellant denied that sexual intercourse had occurred. The judge stated: “His defence is that sexual intercourse with this grubby and smelly girl never happened at all. It is all lies”.[91]We have considered the judge’s use of the expression “willing submission” on two occasions. He stated:
“Just where the line is to be drawn between real consent and submission, albeit willing submission, may not be easy to draw, but the law leaves it to juries who have heard all the evidence of the witnesses to say where the line is to be drawn and whether in any case lack of consent is proved”
. That was followed by the further direction:
“Therefore, I will leave it to you to draw that line. Was it consent or was it submission and therefore not consent?”
[92]The expression “willing submission” is not an easy one in this context. Willingness is usually associated with consent. However, we are satisfied that the jury would not, in the context of this very full direction, have been misled by the use of the word “willing”. This was not a case where it was alleged that submission had been achieved by physical force. It was willing in the sense that there was no attempt at physical resistance by the complainant and the judge used it in that sense. That leaves open the possibility that the circumstances were such that the complainant submitted to sexual intercourse rather than consented to it. That was the overall effect of the direction. We are satisfied that, having regard to the full direction given, the jury would not have been misled or distracted, by the use of the expression “willing submission”, from the question they were told they had to answer. It is not, however, an expression we would commend for use on other occasions.[93]We consider the submission that Terence Kirk was unfairly prejudiced by association with his brother, and references in the summing-up to collusion. The judge did state that “each” appellant was inviting the jury to find that the charges were brought “against each of them by concoction”, and that the defendants were contending that the complainants had “concocted their allegations against these two men”. Those statements were made in the course a full direction about the possibilities of collusion and collaboration, properly given, and directions that the burden was on the prosecution to satisfy the jury that each of the witnesses was independent and that they must be sure that the complainants were telling the truth.[94]The judge had, at the beginning of his summing-up, directed the jury that the evidence on each count must be treated separately. When dealing with each count, he considered those against Terence Kirk quite separately from those involving Peter Kirk. Moreover, Terence Kirk could not completely disassociate himself from his brother. Both were alleged to have been present when the offences in counts 12 and 17 were committed. Both defendants were claiming that the witnesses who gave evidence against them, which in the case of Terence Kirk included evidence from NN, were lying. We do not consider that Terence Kirk was unfairly prejudiced in this respect. When recommencing his summing-up on the second day, the judge accepted that he had erred on the previous day and stated in terms that “Terence Kirk does not suggest collusion”.[95]It is further submitted that evidence to show that JM was sexually experienced at the time of the alleged rape should have been admitted. We have not seen the transcript of submissions on this point but in our view the jury cannot have been misled into believing that, at the time of the alleged rape, JM was a sexually inexperienced child. Her own evidence of her lifestyle, and of sexual abuse, would have nullified any such impression.[96]We have considered the submissions on behalf of Terence Kirk individually and collectively. The judge was justified in permitting counts 12 to 16 to go to the jury. His legal directions and his summary of the evidence were both appropriate and fair. We are left with no doubts about the safety of the verdicts against Terence Kirk.[97]It was for those reasons that, at the conclusion of the hearing, the court stated that the appeals against conviction of both Peter Kirk and Terence Kirk were dismissed.

Sentence

[98]Peter Kirk appeals against the sentence of 11 years imprisonment, by leave of the single judge.[99]When sentencing Peter Kirk, the judge described the sequence of events and Kirk’s offences in considerable detail. He stated that Peter Kirk had taken advantage of the victims’ ages and that when the earlier victims stopped him he moved on to others. The judge stated:
“Offenders who indecently assault children must expect the sentence to involve a strong punitive element”
. The longest single sentence imposed was one of 3 years imprisonment but, by making some of the sentences consecutive, a total of 11 years was reached[100]Serious breaches of trust were involved. There were five complainants on the indictment and the assaults had occurred over a period of about eleven years. All the complainants had been very young. In relation to JM, the offending had been repetitive. The offending included oral sex. There could be no discount for a guilty plea and the appellant had shown no remorse. In their statements, several of the complainants described the serious effect which the abuse had had on their lives.[101]On behalf of Peter Kirk, Mr Dunham submits that the sentence was manifestly excessive, and refers to the absence of penetrative sex and to the lapse of time since the offences were committed. He referred in his written submissions to a considerable number of reported cases.[102]In his oral submissions, Mr Dunham referred to Densley S [1998] 1 Cr App R (S) 17, Sweeney [1998] 2 Cr App R (S) 43, Burton-Barri [1999] 2 Cr App R (S) 253 and Attorney-General’s Reference No. 46 of 1999 [2000] Cr App R (S) 310. Reliance has also been placed on Attorney-General’s Reference No. 141 of 2001 [2003] 1 Cr App (S) 7.[103]We have considered the authorities cited. The sentence imposed in this case was a severe one but the seriousness and persistence of the offending was such that in our judgment it was justified. We are not able to accept the submission that it was manifestly excessive. The appeal is dismissed.

Cited in 3 later judgments