Kirkham, R v

Kirkham, R v

The trial judge's exclusion of evidence regarding the complainant's prior sexual relationship and flirtatious behaviour was correct as it was irrelevant to the issue of consent and did not render the trial unfair or the convictions unsafe. The sentencing judge erred in categorising the victim as 'particularly vulnerable'; the correct category was 3A, warranting a starting point of 7 years, with aggravating factors justifying a 10-year sentence. The appeal against conviction is refused; the appeal against sentence is allowed to the extent that the sentences for rape are reduced from 12 years to 10 years each, to run concurrently.

Parties
Prosecution: Regina; Appellant: Gavin Michael Kirkham
Jurisdiction
England and Wales
Judgment Date
11 February 2020
Procedural Posture
Criminal Appeal / Judgment on Appeal Against Conviction and Sentence
Outcome
Appeal against conviction refused; appeal against sentence allowed in part
Legal Topics
Sexual Offences, Rape, Assault by Penetration, Sexual Assault, Evidence Admissibility, Sentencing Guidelines
Criminal Law Sexual Offences Rape Assault by Penetration Sexual Assault Evidence Admissibility Sentencing Guidelines

Case Brief

Summary, issues, holding and outcome

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Parties

Regina

Prosecution

Gavin Michael Kirkham

Appellant

Procedural Posture

Criminal Appeal / Judgment on Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether exclusion of evidence under section 41 of the Youth Justice and Criminal Evidence Act 1999 rendered the trial unfair and convictions unsafe
  2. 2 Whether the sentencing judge erred in categorising the victim as 'particularly vulnerable' under sentencing guidelines
  3. 3 Whether the sentence imposed was manifestly excessive

Ratio Decidendi

The trial judge's exclusion of evidence regarding the complainant's prior sexual relationship and flirtatious behaviour was correct as it was irrelevant to the issue of consent and did not render the trial unfair or the convictions unsafe. The sentencing judge erred in categorising the victim as 'particularly vulnerable'; the correct category was 3A, warranting a starting point of 7 years, with aggravating factors justifying a 10-year sentence. The appeal against conviction is refused; the appeal against sentence is allowed to the extent that the sentences for rape are reduced from 12 years to 10 years each, to run concurrently.

Court Disposition

Appeal against conviction refused; appeal against sentence allowed in part

Orders

  • Sentence of 12 years on counts 4 and 5 quashed and substituted with 10 years each, to run concurrently
  • Remaining sentences and ancillary orders undisturbed