Section 11 Sexual Offences Act 2003: Permissible Inferences on Sexual Gratification Must Be Read in the Round with Clear Element-by-Element Directions

Case: R v NJT [2026] EWCA Crim 451
Court: Court of Appeal (Criminal Division) (Stuart-Smith LJ, O’Farrell J, HHJ Marks KC)
Date: 27 March 2026
Appeal from: Newcastle-upon-Tyne Crown Court (HHJ Doig)

1. Introduction

This appeal concerned the adequacy of the trial judge’s directions to the jury on a conviction under section 11(1) of the Sexual Offences Act 2003 (“SOA 2003”): engaging in sexual activity in the presence of a child. The appellant (an adult) was convicted on one count (count 3) and acquitted on two others. The allegation on count 3 was that, during a “Full Monty”-style striptease performed in a bedroom in the presence of the complainant (a child), the appellant intentionally exposed his penis.

The appeal focused narrowly on whether the judge’s summing-up risked leading the jury to conflate (i) whether the conduct was “sexual” in nature and (ii) whether it was done “for the purpose of obtaining sexual gratification” from the child’s presence—an element clarified by authority as essential to section 11 offences.

2. Summary of the Judgment

3. Analysis

3.1 Precedents Cited

The central authority shaping the directions (and the appeal) was R v B [2018] EWCA Crim 1439. The trial judge and counsel addressed it expressly, and the written directions were framed to reflect it.

(a) R v B [2018] EWCA Crim 1439

• Principle relied on in this case: In a prosecution under SOA 2003 s.11(1), it is necessary for the Crown to prove, as an element of the offence, that the defendant engaged in the sexual activity in the presence or under the observation of a child in order to gain some sexual gratification from that presence or observation.
• How it influenced the trial: The agreed written directions and Route to Verdict identified “purpose of obtaining sexual gratification” as a discrete element the jury had to decide separately (questions 1–3).
• How it influenced the appeal outcome: The Court of Appeal assessed the disputed “you may conclude” wording against the overall structure mandated by R v B. It held that, read in context, the summing-up did not dilute the prosecution burden of proving the gratification purpose.

3.2 Legal Reasoning

(a) The legal elements in issue

The Court treated the case as turning on proper jury direction on three contested elements (with age-related elements not in dispute):

• Intentional engagement in sexual activity (including whether the act amounted to “sexual” activity);
• Presence of the child; and
• Purpose of obtaining sexual gratification from the child’s presence (or one of the purposes).

(b) The alleged misdirection: risk of “automatic” gratification inference

The appellant’s complaint was that the judge’s direction—if the striptease occurred and the child saw the penis, “you may conclude” the purpose was sexual gratification—might encourage jurors to treat gratification as following “as a matter of course” from the act being sexual, rather than requiring separate proof.

(c) The Court’s approach: directions must be read as a whole

The Court of Appeal’s reasoning is a classic “reading in the round” assessment of summing-up safety:

• Clear articulation of separate elements: Paragraph 46 of the written directions set out the elements distinctly, including “for the purpose of obtaining sexual gratification” as a separate requirement.
• Separation reinforced by the Route to Verdict: The Route to Verdict posed three sequential questions and required the jury to decide gratification separately (Question 3), reducing the risk that jurors would treat the gratification element as subsumed within “sexual activity”.
• Oral summing-up emphasised the acquittal consequence: The judge repeatedly told the jury that unless they were sure that at least part of the defendant’s purpose was sexual gratification from the child’s presence, they “must” acquit.

(d) The “you may conclude” phrasing: permissive inference, not compulsion

The Court accepted the particular sentence “could have been more helpfully formulated” but placed weight on:

• the word “may” (permissive, not mandatory);
• the conditional framing (“IF … you are sure the striptease occurred …”); and
• the repeated instruction that gratification was for the jury to decide, and had to be proved to the criminal standard.

In substance, the Court treated the disputed passage as identifying an inference that could be available on certain facts, rather than directing the jury that such facts proved gratification as a matter of law.

(e) “Immediate or deferred gratification”

The directions stated that intended gratification “does not have to be obtained at the moment” and may be immediate, deferred, or both. The Court did not criticise this; it aligns with the notion that the offence concerns the defendant’s purpose, not proof of contemporaneous arousal. This was relevant because the appellant argued (among other things) that any exposure was fleeting and not accompanied by erection; the legal focus remained whether gratification was a proved purpose, not whether there was visible physiological evidence.

3.3 Impact

(a) Practical guidance for trial judges and advocates

• Maintain strict element separation: Section 11 cases require careful compartmentalisation: (1) what happened; (2) was it “sexual”; (3) was a purpose sexual gratification from the child’s presence/observation.
• Routes to verdict matter: A properly structured written Route to Verdict can cure (or at least materially reduce) the risk created by a less-than-perfect phrase in a narrative direction.
• Avoid “suggestive shortcuts”: Even where an inference of gratification may be available, language that appears to equate “sexual act” with “gratification purpose” invites appeal grounds. The Court’s tolerance here was fact- and context-sensitive; it should not be read as endorsing loose drafting.

(b) Appellate review: safety and context

The decision reinforces that appellate scrutiny of jury directions is holistic: the question is whether the jury could realistically have been misled when the summing-up and written materials are taken together. A single arguable infelicity will not necessarily render a conviction unsafe where the summing-up repeatedly and clearly states the correct legal test and the jury’s task.

4. Complex Concepts Simplified

• “Sexual activity” (SOA 2003 context): An act can be “sexual” either because of its inherent nature, or because (given the circumstances and/or purpose) a reasonable person would regard it as sexual. The jury must decide this based on the evidence and the statutory test.
• “Purpose of obtaining sexual gratification” (section 11): It is not enough that the act is sexual and the child is present. The Crown must prove that at least part of the defendant’s purpose was to obtain sexual gratification from the child’s presence or observation. This is a mental element (what the defendant was trying to achieve), and it can be inferred from conduct and context.
• “Permissive inference” (“you may conclude”): This signals something the jury is entitled to infer, not something it must find. It remains for the jury to decide, and it must be sure.
• “Unsafe conviction”: The Court of Appeal will quash a conviction if legal error or unfairness creates a real risk that the jury convicted when it should not have. If correct legal directions were clearly and repeatedly given, minor imperfections may not meet that threshold.

5. Conclusion

R v NJT [2026] EWCA Crim 451 confirms that, in section 11 SOA 2003 prosecutions shaped by R v B [2018] EWCA Crim 1439, the jury must be directed to treat “sexual activity” and “purpose of obtaining sexual gratification from the child’s presence/observation” as distinct elements. While the Court acknowledged that an isolated sentence suggesting an inference of gratification could have been better phrased, it held the conviction safe because the overall summing-up and the Route to Verdict clearly required the jury to decide gratification separately and to acquit unless sure.