Bespoke Jury Directions on “Sexual” (s.78 SOA 2003) in Alleged Medically Inappropriate Intimate Examinations

1. Introduction

In R v Davis [2026] EWCA Crim 671, the Court of Appeal (Criminal Division) considered an application by a former GP (“the applicant”) for leave to appeal against conviction and sentence following convictions at Manchester Crown Court for indecent assault (count 1) and assault by penetration (count 2) arising from intimate examinations of two patients (C1 and C2) years apart.

A central trial issue was whether intimate acts that could be characterised as medically inappropriate were also legally “sexual” (for count 2 under the Sexual Offences Act 2003) or “indecent” (for the historic indecent assault count). The prosecution case, as opened, treated sexual gratification as the driver for characterising the conduct as sexual. During deliberations, the jury asked for further guidance about whether sexual gratification was required.

The Court of Appeal granted leave to appeal on the complaint that the jury directions/route to verdict may have inadequately addressed the possibility of inappropriate (or incompetent) medical conduct without sexual purpose, in a case where that distinction was pivotal. All other conviction grounds and all sentence grounds were held unarguable at this stage.

2. Summary of the Judgment

  • Reporting restrictions: The court noted the application of the Sexual Offences (Amendment) Act 1992.
  • Convictions/sentence below: The applicant was convicted (majority 10–1) on counts 1 and 2; sentenced to concurrent terms resulting in 8 years’ imprisonment overall, with notification requirements.
  • Leave granted on conviction ground 1: It was arguable that, in the unusual factual setting of intimate clinical examinations and the way the case was opened, the jury required a more fact-specific (“bespoke”) direction on what made the acts “sexual” (s.78(b) SOA 2003) and what made the historic touching “indecent”.
  • Other conviction grounds refused: Challenges to admission of MPTS/GMC-related material, chaperone evidence, “expert-like” lay evidence, exclusion of late defence expert evidence, distress/complaint evidence directions, and attempted admission of prior allegations against C1 were rejected as not arguable.
  • Fresh evidence refused: A new consultant gynaecologist report was not arguably admissible under s.23 Criminal Appeal Act 1968, largely because the issues were long-standing and could have been addressed at trial.
  • Sentence appeal refused: The sentence was not arguably manifestly excessive or wrong in principle; the judge’s approach to category, mitigation, sexual gratification (not found to the criminal standard for sentencing uplift), and totality was held to be open to him.
  • Extension of time: The application against conviction was 383 days out of time; the court left extension of time to the full court, given that ground 1 was arguable.

3. Analysis

3.1 Precedents Cited

R v Kumar [2006] EWCA Crim. 1946

The applicant relied on R v Kumar [2006] EWCA Crim. 1946 for the proposition that, where allegations concern a clinician’s intimate examination, a jury may require practical, context-sensitive assistance distinguishing (i) clinically inappropriate conduct and (ii) conduct that is criminally “indecent”/“sexual”.

Although the Court of Appeal did not finally determine the Kumar-based argument, it accepted that the present case arguably demanded “bespoke” directions because the jury might otherwise conflate “inappropriate examination” with “sexual” (or “indecent”) conduct.

Attorney General's Reference (section 36 of the Criminal Justice Act 1972) (No 1 of 2020), [2020] EWCA Crim 1665

The court treated Attorney General's Reference (section 36 of the Criminal Justice Act 1972) (No 1 of 2020), [2020] EWCA Crim 1665 as the leading authority on the proper construction of s.78 SOA 2003, emphasising that:

It is not an element of sexual assault that the prosecution prove the offender intended the touching to be sexual; rather, under s.78(b), the accused’s purpose may be relevant if, given the nature of the activity, it may be sexual and because of the accused’s purpose it was sexual.

This precedent underpinned the court’s concern that the trial judge’s directions, while containing many of the statutory “ingredients”, may have failed to translate the s.78(b) two-stage test into sufficiently clear, case-specific guidance in a medical-examination context—particularly after the jury explicitly asked about sexual gratification.

3.2 Legal Reasoning

(a) The “sexual” question under s.78(b) SOA 2003 in a clinical setting

Count 2 (assault by penetration) depended on whether penetration was “sexual” within s.78. The judge directed the jury using a two-stage approach broadly aligned to s.78(b): (i) whether by nature the penetration may be sexual, then (ii) whether because of circumstances/purpose it is sexual.

However, the Court of Appeal identified an arguable problem born from the trial’s factual and forensic dynamics:

  • The Crown case was opened on the basis that what made the conduct “sexual” was the applicant’s pursuit of sexual gratification.
  • The jury asked directly whether they “must” be convinced the applicant gained sexual gratification.
  • The judge responded (correctly in law, per [2020] EWCA Crim 1665) that sexual gratification is not an “element”, while also saying it may be relevant to circumstances/purpose.

The Court of Appeal’s key point was not that the judge misstated the law of s.78; rather, it was arguably an error not to provide a fact-specific explanation of how a jury should reason where: (i) an intimate act is medically inappropriate, yet (ii) the jury is not sure it was done for sexual purpose. In such a case, a direction may be needed to prevent jurors from treating “inappropriate + intimate” as automatically “sexual”.

(b) “Indecent assault” and the risk of collapsing “unlawful/incompetent” into “indecent”

Count 1 concerned the historic offence of indecent assault. The judge directed the jury that “indecent” is judged by “right-minded people” considering all circumstances, including relationship and why the applicant behaved as he did.

The applicant argued (again relying on the clinical context) that jurors needed more practical help to avoid a mistaken route: concluding the examination was unnecessary or incompetent and, on that basis alone, concluding it was “indecent” without being sure of a sexual element in the circumstances.

The Court of Appeal did not decide the point but treated it as tied to the same arguable concern: where the prosecution’s theory was that the conduct was indecent/sexual because it was for gratification, the directions might have needed to confront explicitly the “inappropriate but not sexual” possibility.

(c) Why leave was granted but the court withheld full reasons

The court granted leave on ground 1 and noted it was “probably inappropriate” to provide detailed reasons at this stage. That reflects the procedural posture: the judgment is a gatekeeping decision identifying arguable error for the full court, not the final determination of the appeal.

(d) Treatment of other grounds: a strong deference to case-management and relevance rulings

The refusal of other grounds shows the court’s reluctance to interfere absent a clear error of law:

  • MPTS/GMC-related evidence: admitted to correct a false impression (s.101(1)(f) Criminal Justice Act 2003) and to balance the picture of an otherwise “blemish-free” practitioner; directions were adequate, and a good character direction was also given.
  • Chaperones: treated as direct contextual evidence, not bad character.
  • Lay witness with professional experience: the midwife daughter’s evidence was treated as context and motivation for reporting, not expert evidence.
  • Excluded late defence “expert” (Dr Harris): lateness, limited relevance, and mismatch with the factual issue (hymen vs vaginal canal) justified exclusion.
  • Prior allegations by C1: the trial judge’s detailed ruling that falsity was not established (and probative value was lacking) was treated as robust.

3.3 Impact

Although the court did not finally decide the appeal, the grant of leave on ground 1 signals an important practical lesson for cases alleging sexual offending disguised as medical treatment:

  • Directions must fit the trial theory: if the Crown’s case narrative hinges on sexual gratification to demonstrate “sexual” under s.78(b), and jurors ask about it, the judge may need to give a tailored direction clarifying how “purpose”, “circumstances”, and “medical inappropriateness” interact—without incorrectly converting gratification into a formal “element”.
  • Guarding against category error: there is a recurrent risk that a jury equates “bad medicine” with “sexual crime”. The court’s comments suggest that, in certain factual matrices, judges should explicitly address that risk.
  • Medical sexual offence prosecutions: the case underlines the centrality of s.78(b) analysis where the act is inherently intimate but potentially clinical. The eventual full-court decision may further shape standard directions in clinician-defendant cases.

4. Complex Concepts Simplified

4.1 The s.78 SOA 2003 test: “sexual” is a legal label, not just a body-part question

Under s.78(b), jurors ask two linked questions:

  1. Nature: Is the act, by its nature, something that may be sexual? (Intimate touching/penetration often will be.)
  2. Circumstances/purpose: In context, would a reasonable person consider it was sexual? A legitimate medical purpose may mean the act is not “sexual” in law even if intimate; an exploitative purpose may point the other way.

Crucially (per [2020] EWCA Crim 1665), the prosecution does not have to prove the defendant intended the act to be “sexual” as a separate element. But what the defendant was trying to achieve can still be relevant to what a reasonable person would think, given the circumstances.

4.2 “Indecent” (historic offence): a community-standards judgment informed by context

“Indecent” is not a technical medical concept. It is assessed by “right-minded persons” considering all the circumstances, including: the relationship (doctor/patient), how the conduct started, and why it was done. In medical contexts, the lawful/clinical justification (or lack of it) may be relevant—but it does not automatically answer the indecency question.

4.3 “Correcting a false impression” (s.101(1)(f) CJA 2003)

If a defendant creates a misleading picture about their character or conduct (for example, implying they have practised without criticism), the prosecution may be permitted to introduce otherwise inadmissible “bad character” material to correct that impression, subject to fairness and directions.

4.4 Fresh evidence on appeal (s.23 Criminal Appeal Act 1968)

Fresh evidence is generally allowed only if it meets statutory criteria, including that there is a reasonable explanation for why it was not used at trial. Where an issue was central and foreseeable, the appellate court is slow to admit “new” expert opinion that could have been obtained earlier.

5. Conclusion

R v Davis [2026] EWCA Crim 671 is procedurally a leave decision, but it highlights a substantive appellate concern: in clinician-defendant cases, where the prosecution theory is that an “inappropriate” intimate examination becomes criminal because it was for gratification, juries may require bespoke, fact-focused directions explaining how “sexual” under s.78(b) SOA 2003 (and “indecent” for historic counts) should be approached—especially when jurors expressly query whether gratification is required.

The full court will ultimately determine whether any deficiency in the summing-up rendered these convictions unsafe, and whether time should be extended. The remainder of the applicant’s complaints—evidential, procedural, fresh evidence, and sentencing—were firmly rejected as unarguable at this stage.