Summing-up Consent in Sexual Assault Trials: R v ALJ [2024] EWCA Crim 1600

Introduction

This appeal decision of the England and Wales Court of Appeal (Criminal Division) clarifies the trial judge’s duty to direct a jury on elements of an offence that have not been put in issue. The appellant, known by the initials ALJ, was convicted of multiple counts of sexual assault and causing or inciting a child to engage in sexual activity involving his effective stepdaughter (“C”), aged between 13 and 15. He denied all wrongdoing. On appeal he argued the trial was unfair because the jury were not specifically invited to consider whether C consented or whether he reasonably believed she consented—elements of the offence of sexual assault under section 3 of the Sexual Offences Act 2003. The Court of Appeal unanimously dismissed the appeal, establishing that there is no obligation to sum up an element not in issue and that consent was never in issue once the defence was a bare denial of any touching.

Summary of the Judgment

The appellant was convicted at Mold Crown Court in January 2024 on four counts of sexual assault and one count of causing or inciting a child to engage in sexual activity, touching C on multiple occasions between April 2019 and early 2022. He received an aggregate sentence of seven years and three months’ imprisonment. On appeal, his counsel argued the trial judge should have directed the jury on the meaning of consent and reasonable belief in consent, because those are statutory elements of sexual assault. The Court of Appeal held that, where a defence is an unqualified denial that any touching occurred, consent and reasonable belief are not in issue. The judge’s written and oral directions were therefore adequate, and the appellant’s convictions were safe. The appeal was dismissed.

Analysis

Precedents Cited

• Criminal Practice Directorate Compendium (paragraph 20-4): States that “when the charges involved are those under sections 1 to 4 of the Sexual Offences Act 2003, the Crown must prove that W was not consenting.”
• General principle in criminal law: A judge need not sum up an issue that has not been raised by either party. The Court compared this with provocation in a murder trial, an issue sometimes summed up at a judge’s discretion even if not pleaded. No authority requiring consent directions where consent is uncontested and unput in issue was identified.

Legal Reasoning

The Court’s reasoning can be divided into three steps:

1. Defence Case and the Issue in the Trial
   The defence statement was a straightforward, detailed denial that any sexual activity ever took place. No alternative case (for example, that C consented or that the appellant reasonably believed she consented) was advanced. No suggestion was made during cross-examination or closing submissions that consent might have been given or believed to be given.
2. Judge’s Directions on Consent
   The trial judge’s initial draft directions stated that for each count the Crown needed to prove touching was intentional and sexual, that C did not consent, and that the appellant did not reasonably believe she was consenting. On final directions, paragraphs 49–50 made clear that, because consent was not in issue, the judge would not elaborate on its meaning unless the jury requested it. The judge’s summing-up followed that written direction.
3. Safety of the Convictions
   The Court held that it was neither necessary nor unfair to omit detailed directions on consent. C’s uncontradicted evidence demonstrated lack of consent, and a properly directed jury could not sensibly have found consent or reasonable belief in consent. Requiring the judge to sum up an uncontroversial element would serve no purpose and would depart from well-established practice that judges need only direct on issues genuinely in dispute.

Impact

This decision will guide trial judges on the limits of summing-up obligations in criminal trials, particularly in sexual offence cases:

• Consent directions are not mandatory if neither party raises consent as an issue and the evidence unambiguously establishes lack of consent.
• Parties must put in issue any element of an offence they wish the jury to consider; failure to do so may forfeit the right to rely on that element.
• Defence tactics must balance raising fallback arguments (e.g., consent) against the risk of undermining a primary strategy of complete denial.

Complex Concepts Simplified

• Summing-up: The oral directions a trial judge gives the jury summarizing the law and issues they must decide.
• Consent Element: Under section 3 of the Sexual Offences Act 2003, sexual assault requires proof that the victim did not consent and the defendant did not reasonably believe in consent.
• Half-time Submission (No Case to Answer): A defendant may submit at the close of the prosecution case that the evidence is insufficient to go to the jury.
• Complaint Evidence: Testimony from third parties (friends, relatives) recounting the victim’s statements about the offence.
• Strict Proof: A formal defence pleading requiring the prosecution to prove all elements of the offence beyond reasonable doubt.

Conclusion

R v ALJ [2024] EWCA Crim 1600 confirms that a jury need not be directed on an element of an offence that has not been contested and cannot sensibly be contested on the evidence. In sexual offence trials, if the defence is a bare denial of any touching, the judge’s summing-up need not delve into consent or reasonable belief in consent unless the jury requests further guidance. This judgment preserves judicial efficiency and respects the boundaries between contested and uncontested issues, providing clearer guidance on summing-up obligations in criminal proceedings.