Thompson, R. v

Factual and Procedural Background

This appeal arises from a Crown Court trial in The City, where the Defendant was charged with three counts of sexual assault of a child under 13, contrary to section 7 of the Sexual Offences Act 2003. The counts related to two separate complainants, identified as children "A" and "B". The trial began on 2 September 2024. After the prosecution's case, a submission of no case to answer was made regarding counts 1 and 2, both concerning complainant A. On 10 September 2024, the trial judge ruled there was no case to answer on those counts. The prosecution appealed this ruling on 11 September 2024, giving the required acquittal undertaking. The jury was not discharged, and the trial was rescheduled to continue on count 3 on 23 September 2024.

The allegations included that the Defendant sexually assaulted B by massaging and rubbing her legs and thighs in a sexual manner while babysitting her, an act witnessed and recorded by A. A also alleged the Defendant had previously done similar acts to her at younger ages, which formed counts 1 and 2. The prosecution relied on A's testimony, video evidence, and contemporaneous communications between A and a friend.

Legal Issues Presented

1. Whether the trial judge erred in ruling there was no case to answer on counts 1 and 2 relating to sexual assault of complainant A.
2. Whether touching below the knee can, in the circumstances, amount to sexual assault under section 7 of the Sexual Offences Act 2003.
3. Whether inconsistencies in complainant A's evidence justified withdrawal of the case from the jury under the test established in R v Galbraith.

Arguments of the Parties

Appellant's Arguments

• The trial judge was wrong to find that no properly directed jury could consider the Defendant's touching of a young child's leg as sexual assault in the circumstances.
• The judge erred in concluding that inconsistencies in A's account were such that no jury could convict.
• The judge failed to give sufficient weight to evidence that the Defendant admitted touching A in the same way as B.
• Both counts 1 and 2 should not have been withdrawn from the jury as there was evidence to support them.

Appellee's Arguments

• The judge correctly applied the legal directions and the test for no case to answer.
• Touching below the knee could not be interpreted as inherently indecent or sexual.
• The ruling on count 1 was reasonable and correct given the inconsistencies and tenuous nature of A's evidence.
• The judge properly concluded that no reasonable jury could convict based on the evidence presented.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Galbraith [1981] 1 WLR 1039	Test for submission of no case to answer; whether evidence is such that a properly directed jury could convict.	The court applied Galbraith to assess whether the evidence on counts 1 and 2 was sufficient to go to the jury, concluding the judge erred in withdrawing the counts.
R v Court [1989] AC 28	Approach to indecent assault and distinctions in types of touching.	The court referenced this case to contextualize the nature of touching and indecency under prior law and its relation to the current statute.
R v George [1956] Crim LR 52	Determination that certain acts (e.g., removal of shoes) did not amount to indecent assault.	The court noted this precedent when discussing the boundaries of sexual touching and its evolution under the 2003 Act.
R v Price [2003] EWCA Crim 2405	Stroking legs below the knee might amount to indecent assault.	Used to support the argument that touching below the knee could be sexual and thus a matter for the jury.
R v H [2005] EWCA Crim 732; [2005] 1 WLR 2005	Interpretation of section 7 of the Sexual Offences Act 2003 regarding sexual touching and the jury's role.	The court relied on this case to affirm that whether touching might be sexual is a jury question, supporting the appeal.

Court's Reasoning and Analysis

The court carefully examined the evidence and the trial judge's application of the test for a no case to answer under R v Galbraith. The judge had ruled no case to answer on counts 1 and 2 due to inconsistencies in A's evidence and the nature of the touching, particularly below the knee. The appellate court disagreed, emphasizing that whether touching might be sexual and whether a jury could be sure of sexual intent are questions for the jury, not for the judge at the no case stage.

The court noted that the trial judge had the advantage of hearing A's evidence but found that the judge erred in law by withdrawing counts 1 and 2. The inconsistencies in A's testimony, including when she remembered the incidents and whether she considered the acts wrong at the time, were matters for the jury's assessment. The court also highlighted evidence that the Defendant had admitted to touching A in a similar manner to B, which supported a case to answer.

Regarding count 2, the court rejected the judge's conclusion that touching below the knee could not be sexual, referencing prior case law and the statutory definition of sexual touching. The court held that a reasonable jury could find the Defendant guilty based on the evidence and proper directions, including the use of video evidence.

Holding and Implications

The court ALLOWED the prosecution's appeal.

The ruling of no case to answer on counts 1 and 2 was set aside, and the trial was ordered to resume at the Crown Court. The decision directly affects the continuation of the trial against the Defendant on these counts. No new legal precedent was established; rather, the court reaffirmed established principles concerning the role of the jury in assessing evidence and the application of the Galbraith test.