Sexual History Evidence and Impact on Belief in Consent: R v Gjoni (Kujtim) [2014] EWCA Crim 691
| Date | 01 August 2014 |
| Published date | 01 August 2014 |
| DOI | 10.1350/1740-5580-78.4.290 |
| Author | Brian Brewis |
| Subject Matter | Court of Appeal |
The Journal of Criminal Law
290
credit for time that would not, and could not, be counted by s. 240. This
was an important distinction from Hicks: Leacock had already been given
the credit for the same remand time; he would then be credited for a
second time if the rst warrant was not administratively corrected.
For those two reasons the issue in Hicks never arose in the present case
at all. Instead the focus was shifted to a discussion about whether a
sentencer is making an order for credit pursuant to s. 240(3) or (4). That
reects the way in which the court expressed itself in Hicks, but does not
address the principles and facts that led that court to conclude: ‘It is clear
that the judge was not making a direction that credit should be given in
relation to a number of days less than that for which he was remanded in
custody; if he had been, he would have said so and was bound to explain
the basis on which he was making such a direction’ (Hicks at [22]). In the
present case the court concludes there is only one direction to be given,
and it is under s. 240(3), but that says nothing of the requirement that the
direction given or not given under that section shall be stated in open
court as subss (5) and (6) of s. 240 specify.
It is therefore suggested that where the facts are as in Hicks, that decision
continues to provide the correct result, while facts such as were considered
in the present case properly lead to a different result.
Philip Rule
Sexual History Evidence and
Impact on Belief in Consent
RvGjoni (Kujtim) [2014] EWCA Crim 691
Keywords Rape; Consent; Honest and reasonable belief; Sexual behaviour;
Youth Justice and Criminal Evidence Act 1999
The appellant (G) and some other men had been drinking and taking
cocaine at the home of the complainant (CH). During the course of the
night, G asked CH whether she would have sexual intercourse with him.
She refused and then became angry when asked by G how much money
she would charge for sex. CH and her boyfriend (K) later went upstairs
and had sexual intercourse, after which CH fell asleep and K returned
downstairs to rejoin the others. CH claimed that she awoke to nd G
having sexual intercourse with her at which point she struggled. G ignored
her protests. CH claimed that K and another man (L) were standing by
the bed in their boxer shorts watching and made no attempt to intervene.
CH then ran downstairs screaming. This alerted her neighbour and best
friend who could hear CH shouting, ‘Get off me, get out of my house’. The
men quickly got dressed and left. As they were leaving CH asked K why
he did not intervene to help her to which he replied, ‘You probably enjoyed
it’.
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