ACR: Post‑evidence withdrawal confined to rare “knock‑out blow” cases; inferential proof of s.11 SOA 2003 gratification; tailored s.71 CJA 2003 reporting

Introduction

In R v ACR [2025] EWCA Crim 1220, the Court of Appeal (Criminal Division), constituted by the Vice‑President, addressed three interlocking questions of real practical importance:

• When, if ever, is it proper for a trial judge to withdraw a count from the jury after all the evidence, including defence evidence, has been heard?
• How is the “purpose of obtaining sexual gratification from the presence or observation of a child” under section 11(1) of the Sexual Offences Act 2003 to be proved, and may that link be inferred from circumstances?
• What is the appropriate approach to reporting restrictions during a prosecution appeal against a terminating ruling, where a new trial will be ordered?

The defendant, anonymised as “ACR” to protect his child (“X”) under the Sexual Offences (Amendment) Act 1992, faced two counts: (1) engaging in sexual activity in the presence of a child (SOA 2003, s.11(1)); and (2) taking indecent photographs of a child (Protection of Children Act 1978, s.1(1)(a)). The case arose from a wider police investigation into “Z”, who posed online as a woman and induced males to live stream sexual acts, later blackmailing them to commit sexual acts in the presence of children and siblings.

The trial judge withdrew count 1 from the jury after discovering—mid‑trial—that the prosecution and defence had overlooked the binding authority of R v B, L [2018] EWCA Crim 1439, which requires proof that the defendant’s sexual gratification was obtained from the presence or observation of the child. The defendant subsequently pleaded guilty to count 2. The prosecution appealed the withdrawal of count 1 under section 58 of the Criminal Justice Act 2003.

Summary of the Judgment

The Court of Appeal granted leave, allowed the prosecution’s appeal, and reversed the judge’s ruling that had removed count 1 from the jury (paras 32–33). It directed the resumption of Crown Court proceedings by way of a new trial on count 1 at a different Crown Court centre before a different judge.

Central holdings:

• Post‑evidence withdrawal is an exceptional course. A judge should take a case from the jury after all the evidence only where defence evidence has delivered a “knock‑out blow” to the prosecution case (para 30). The power exists but must be “very sparingly exercised” (endorsing R v Brown (Davina) [2001] EWCA Crim 961; paras 28–30).
• Section 11(1) SOA 2003 requires proof that the defendant’s purpose in engaging in sexual activity was to obtain sexual gratification from the child’s presence/observation (R v B, L). That element can be proved by inference from the totality of the evidence; here, the video and surrounding circumstances were capable of supporting such an inference and should have been left for the jury (paras 31A, 31C, 31E).
• Fairness concerns arising from the failure to put a specific point to the defendant during cross‑examination did not warrant withdrawing the count from the jury. The defendant’s answer would have been obvious on his case; the issue was for the jury (para 31D).
• Where a mid‑trial legal misunderstanding is discovered, discharging the jury and ordering a retrial may be the fairest course; it was “unfortunate” that this was not considered (para 27).
• Reporting restrictions: using section 71(3) CJA 2003, the Court permitted reporting of the anonymised judgment itself while prohibiting any further publication, including the usual “specified particulars,” to avoid any prejudice to the new trial; the 1992 Act anonymity remains (para 34).

Factual Background and Procedural History

The video at the heart of both counts shows ACR masturbating while seated next to his four‑year‑old son, X, who was playing a video game with images on the television. The phone used to stream was moved at points to show the defendant’s face and the act occurring beside the child (paras 6–7). The police discovered recordings (made by Z of the live stream) during their investigation of Z. About ten weeks later, ACR reported being blackmailed by Z (para 8).

During the trial, all parties initially misunderstood the elements of the section 11 offence, proceeding on the footing that any sexual act for gratification in the presence of a child sufficed. The judge later identified R v B, L, which makes clear that the prosecution must prove that the defendant obtained sexual gratification from the presence/observation of the child (paras 13–14). Prosecution counsel invited the judge to infer that link from the facts, despite not having put it squarely to the defendant in cross‑examination, and suggested recalling the defendant if fairness demanded (para 14). The judge withdrew count 1, concluding a properly directed jury could not be sure the defendant derived gratification because of the child’s presence (para 18), and discharged the jury (para 16). The prosecution appealed under section 58 CJA 2003 and gave the required “acquittal undertaking” (para 16).

Precedents and Authorities Cited

1) R v B, L [2018] EWCA Crim 1439

B, L is the leading authority on section 11(1) SOA 2003, holding that the prosecution must prove that the defendant engaged in sexual activity for the purpose of obtaining sexual gratification from the presence or observation of the child (para 10). The Court of Appeal in ACR reaffirmed that the “link” is a constituent element and noted it is well‑established and set out in Archbold (2025 ed.), para 20‑87 (para 12).

In ACR, the Court did not dilute B, L; it applied it. The innovation lies in clarifying the evidential route: the necessary purpose can be established by inference from conduct and context—including the defendant’s positioning and actions while live streaming with the child visibly beside him, and the absence of any concealment (paras 6–7, 31A, 31C, 31E).

2) R v Brown (Davina) [2001] EWCA Crim 961

Brown (Davina) recognises a trial judge’s power—and duty—to withdraw a case from the jury at any time after the close of the prosecution case if satisfied that no jury properly directed could convict. But it emphasises the power should be “very sparingly exercised.” ACR strongly re‑endorses this caution (paras 20, 28). Importantly, the Court extends that caution to the end-of-all-evidence stage, giving practical content to how sparingly the power should be used once the defence has called evidence.

3) R v Galbraith [1981] 1 WLR 1039

Galbraith supplies the familiar “no case to answer” test at the close of the prosecution case: if the prosecution evidence depends on the reliability of witnesses or other matters within the jury’s province, the case should be left to the jury. ACR applies the same principle to the end-of-all-evidence context (paras 29–30), crystallising a standard that at that late stage, removal from the jury will be warranted only in the rare “knock‑out blow” scenario where the defence evidence conclusively destroys the prosecution case (para 30).

4) Criminal Justice Act 2003 (ss.58, 61 and 67)

The appeal was brought under section 58 (prosecution appeal against a terminating ruling), with the necessary “acquittal undertaking” given (para 16). On allowing the appeal, the Court directed resumption of proceedings under section 61(4)(a), ordering a new trial of count 1 (para 33). The Court framed its intervention under the standards in section 67, finding both an error of law or principle and that the ruling was unreasonable in the circumstances (para 32).

5) Criminal Justice Act 2003, s.71 (Reporting Restrictions)

Section 71 imposes reporting restrictions in prosecution appeals, but the Court may disapply or vary them under section 71(3). Here, after submissions, the Court authorised publication of the anonymised judgment itself while prohibiting any further publication, including particulars otherwise permitted by s.71, to avoid prejudice to the retrial (para 34).

6) Sexual Offences (Amendment) Act 1992

The Court emphasised the child victim’s automatic lifelong anonymity and anonymised the defendant to avoid indirect identification (para 1). Those protections remain fully in place (para 34).

Legal Reasoning and Application

A. The elements of s.11(1) SOA 2003 and the evidential link

Section 11(1) criminalises sexual activity by an adult undertaken for sexual gratification “when another person (B) is present or is in a place from which A can be observed,” coupled with the defendant’s knowledge, belief, or intention that B is or should be aware of the activity, and where B is under 16 (or 13). Consistent with B, L, ACR reiterates that the prosecution must establish a purposive link: the defendant’s gratification derived from the child’s presence/observation (paras 9–11).

The Court considered the video evidence and surrounding facts capable of sustaining that inference:

• The defendant sat next to the child, moved his phone so that the stream showed the act with the child beside him, and made no attempt to conceal it (paras 6–7).
• In context, Z sought a live stream “in the presence of” the child; compliance with that request permitted a jury to infer that the presence was part of what sexually gratified the defendant, at least in part (paras 31A, 31C).

Crucially, the Court’s analysis treats “gratification from the presence” as capable of joint causation. The gratification need not be exclusively from the child’s presence: it is enough that the presence was part of what gratified the defendant (para 31C: “at least in part”).

B. The judge’s error and the jury’s role

The judge placed weight on Z’s state of mind and on perceived gaps in the prosecution’s cross‑examination (paras 17–18). The Court held this to be a misstep. Z’s intention—including his deceptive persona and subsequent blackmail—could not have influenced the defendant’s mental state while live streaming; Z’s state of mind was not determinative and, if relevant at all, was a matter for the jury (para 31B).

The central misdirection was removing from the jury an issue that squarely fell within their province: whether, on the evidence, the defendant’s gratification included the child’s presence. On the Galbraith approach, that was a credibility and inference‑drawing task for the jury (paras 29–31).

C. Post‑evidence withdrawal: the “knock‑out blow” threshold

ACR develops and sharpens the boundary for post‑evidence withdrawal. While a judge has power to withdraw a case even after all evidence, that power must be “very sparingly exercised” (paras 28–30). The Court characterises the correct approach at that stage: unless the defence has delivered a “knock‑out blow” that conclusively destroys the prosecution case, the matter belongs to the jury (para 30). In ACR there was no such decisive defence evidence. If anything, the video supported the prosecution.

D. Fairness, cross‑examination, and remedial options

The fact that counsel had not directly put the B, L “link” to the defendant in cross‑examination did not justify removing the case from the jury. The defendant’s position—that he tried to ensure X did not see—was clear; had the point been put, his answer would have been obvious from his evidence (para 31D). Two further fairness points are notable:

• If the omission had prejudiced the defence, recalling the defendant was a possible remedy (as prosecution counsel suggested).
• More broadly, where a mid‑trial legal misunderstanding emerges, discharging the jury and ordering a retrial may be fairest; the Court thought it “unfortunate” that option was not considered here (para 27).

E. The appellate threshold under s.67 CJA 2003

The Court concluded the ruling involved an error of law or principle and was not reasonable (para 32). As a result, it granted leave, allowed the appeal, reversed the ruling, and directed a new trial under s.61(4)(a) CJA 2003 (para 33).

F. Reporting restrictions: section 71 CJA 2003

The Court identified the practical problem with the default regime: the “permitted facts” during a prosecution appeal often risk more prejudice than a carefully anonymised appellate judgment (para 33, postscript; para 34). Using s.71(3), the Court authorised publication of the anonymised judgment alone and prohibited any further reporting, including the otherwise permitted particulars, while confirming the 1992 Act anonymity continues (para 34). This tailored order balances open justice and the need to protect the integrity of the impending retrial.

Impact and Significance

1) Criminal trial management: end‑of‑evidence withdrawals

ACR sets a clear, practice‑oriented standard: removing a count from the jury after all evidence should be confined to the rare case where the defence has delivered a “knock‑out blow.” This naturally:

• Reinforces the jury’s primacy in assessing credibility, drawing inferences, and evaluating the defendant’s explanation.
• Discourages judicial assessment of disputed factual issues at the post‑evidence stage.
• Encourages remedial tools—recalling witnesses; discharging the jury and re‑starting—over terminating rulings where the difficulty stems from mid‑trial legal misunderstanding.

2) Prosecuting s.11 SOA 2003 offences

The case reinforces that the B, L “link” is an element that must be proved—but it also endorses common‑sense inference as a legitimate evidential route. Prosecutors should:

• Expressly articulate the purposive “link” in the case theory and summing‑up requests.
• Adduce contextual evidence supporting inference, e.g., positioning, camera movement, absence of concealment, compliance with requests that the child be present/observable, and contemporaneous communications.
• Cross‑examine on the link where appropriate, but recognise that its absence will not automatically compel withdrawal if the inference is otherwise available.

Defence practitioners should be ready to:

• Test the “link” and advance alternative explanations (e.g., gratification solely from the remote recipient, not from the child’s presence), and
• Press for robust directions making clear that the presence must contribute to the defendant’s gratification, not merely coexist with it.

3) Appeals under ss.58–61 CJA 2003

ACR exemplifies the functioning of prosecution appeals against terminating rulings:

• The “acquittal undertaking” ensures fairness if the appeal fails (para 16).
• Allowed appeals lead to a direction that proceedings “be resumed” (s.61(4)(a))—here, a new trial (para 33).
• Sentencing on other counts can prudently await the retrial outcome, and may be transferred to the retrial judge to ensure overall sentencing coherence (para 33).

4) Reporting restrictions and anonymisation

The Court’s bespoke order under s.71(3) CJA 2003 provides a model for cases where public interest requires legal transparency but a retrial looms:

• Anonymised judgment publication can advance legal clarity without risking prejudice.
• Prohibiting even the usual “specified particulars” may be necessary where those particulars present a higher risk of identification or prejudice than the judgment itself (para 34).
• The decision sits alongside the non‑derogable anonymity for complainants in sexual cases (1992 Act), under which even naming the defendant may indirectly identify the victim (para 1).

Complex Concepts Simplified

• Section 11(1) SOA 2003: The prosecution must prove that an adult intentionally engaged in sexual activity for sexual gratification, in circumstances where a child is present or can observe, and the defendant either knows/believes the child is aware or intends the child should be aware. Crucially, the gratification must be linked to the child’s presence/observation (B, L; paras 9–11).
• “For the purpose of obtaining sexual gratification from the child’s presence”: This is about what contributed to the defendant’s gratification. It can be proved directly or by inference from conduct and context. It need not be the sole source of gratification; “at least in part” suffices (para 31C).
• “No case to answer” and Galbraith: After the prosecution case closes, if the evidence turns on credibility or inference, the jury should decide. Only where the evidence is such that no reasonable jury could convict should the judge stop the case (paras 29–30).
• Post‑evidence withdrawal: After all the evidence, removing a count is even rarer—reserved for the “knock‑out blow,” where defence evidence conclusively destroys the prosecution case (para 30).
• “Terminating ruling”: A ruling that effectively ends the case (e.g., withdrawing a count so it cannot go to the jury). Prosecutors may appeal under s.58 CJA 2003; if the appeal fails, the defendant benefits from the “acquittal undertaking” (para 16).
• Resumption and new trial: If the appeal succeeds, the Court of Appeal may direct that proceedings “be resumed” (s.61(4)(a)), commonly by ordering a new trial on the affected count (para 33).
• Reporting restrictions (s.71 CJA 2003): To protect the fairness of subsequent trials, reporting is restricted during prosecution appeals. The Court can tailor exceptions to allow publication of an anonymised judgment and prohibit other details (para 34).
• Anonymity under the 1992 Act: Sexual offence complainants have lifelong anonymity. Where naming the defendant would inevitably identify the victim, the defendant must also be anonymised (para 1).

Practical Takeaways

• Judges: Resist withdrawing a count after all evidence unless defence evidence conclusively destroys the case. Consider recalling witnesses or, where a mid‑trial legal error is uncovered, discharging the jury and ordering a retrial.
• Prosecutors: Explicitly plead and prove the B, L “link” for s.11(1). Build circumstantial evidence that the child’s presence formed part of the gratification. If cross‑examination missed an element because of a legal misunderstanding, seek recall promptly.
• Defence: Challenge the inference that the child’s presence contributed to gratification; marshal alternative explanations and seek focused directions on the purposive element.
• Appellate practice: Use s.71(3) creatively to enable publication of anonymised judgments where that poses less risk than the default “permitted particulars.”

Conclusion

ACR is significant for three reasons. First, it crystallises a stringent threshold for removing a case from the jury after all the evidence—the “knock‑out blow” standard—thus safeguarding the jury’s central role in evaluating credibility and drawing inferences. Second, it confirms that the purposive “gratification from the child’s presence” element in section 11(1) SOA 2003 may be proved by inference from the circumstances, not only by direct admissions. Third, it models a careful, proportionate use of the Court’s powers under s.71 CJA 2003 to balance open justice against the need to protect the fairness of a retrial and the enduring anonymity guaranteed by the 1992 Act.

The case therefore strengthens doctrinal clarity on s.11(1), gives practical guidance on handling mid‑trial legal errors, and refines the approach to reporting restrictions where future trials are contemplated. It will be frequently cited in future as a touchstone for end‑of‑evidence withdrawals, the evidential proof of the B, L “link,” and the calibration of reporting bans in prosecution appeals.