Anonymised Summary of Court of Appeal Opinion

Factual and Procedural Background

This criminal appeal concerns allegations that the Defendant committed sexual offences recorded on a video which included the Defendant's young son (the Victim). The Victim is protected by lifelong anonymity under the Sexual Offences (Amendment) Act 1992; the Defendant's real name is not published.

The Defendant was tried on an indictment containing two counts: (1) engaging in sexual activity in the presence of a child contrary to section 11(1) of the Sexual Offences Act 2003 (count 1); and (2) taking indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978 (count 2). The video at issue was recovered during an investigation into a Third Party who had used an internet persona to elicit live sexual acts from victims and to record those acts.

At trial the judge withdrew count 1 from the jury at the conclusion of all the evidence. The Defendant thereafter pleaded guilty to count 2. The prosecution applied, under section 58 of the Criminal Justice Act 2003, for leave to appeal against the judge's ruling withdrawing count 1.

Legal Issues Presented

1. Whether the judge erred in law or principle in withdrawing count 1 (engaging in sexual activity in the presence of a child) from the jury at the conclusion of all the evidence.
2. Whether the judge's ruling that no reasonable jury properly directed could convict on count 1 was one that it was not reasonable to make in all the circumstances.
3. Ancillary procedural question: whether, and to what extent, reporting restrictions under section 71 of the Criminal Justice Act 2003 should apply to the publication of the anonymised judgment.

Arguments of the Parties

Prosecution (Attorney Jarvis)

• Accepted that a judge has power to withdraw a case from a jury after close of all the evidence (citing precedent) but submitted the power must not be used to usurp the jury's role in assessing credibility.
• Argued it was for the jury to assess whether the Defendant's conduct in masturbating while sitting next to the Victim, without leaving the room or taking steps to conceal, supported an inference that he obtained sexual gratification from the child's presence.
• Contended that the judge's decision improperly relied on assessing the credibility of the Defendant's explanation rather than leaving that assessment to the jury.

Defence (Attorney Body)

• Submitted the judge's ruling was correct because the prosecution had not adduced evidence to prove an essential element of the offence (the link between sexual gratification and the child's presence) and had not put that element to the Defendant in cross-examination.
• Observed the Defendant had pleaded guilty to count 2 (taking indecent photographs), which pertained to the same activity and provided sentencing powers; argued public interest reasons weighed against granting leave to appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v B, L [2018] EWCA Crim 1439	Interprets section 11(1) Sexual Offences Act 2003: requires a link between the defendant's purpose of obtaining sexual gratification and the presence/observation of the child.	The court relied on R v B, L to identify the necessary legal ingredient that the Defendant must have acted for the purpose of obtaining sexual gratification from the child's presence; the trial had been conducted without awareness of that decision, creating a legal deficiency which arose during the trial.
R v Brown (Davina) [2001] EWCA Crim 961	Confirms a judge has the power (and duty in appropriate cases) to withdraw a case from a jury after the close of the prosecution case (or after all evidence) if satisfied no properly directed jury could convict; the power is to be very sparingly exercised.	The court accepted the existence of the power but emphasised it should be exercised sparingly and should not trespass on the jury's role of assessing credibility; this informed the conclusion that the judge had erred in withdrawing count 1.
R v Galbraith [1981] 1 WLR 1039	Provides familiar principles governing submissions of no case to answer: leave to the jury where the strength/weakness of the prosecution's case depends on witness reliability or matters for jury assessment.	The court applied the Galbraith principles to conclude that the judge should generally leave matters to the jury where the assessment of evidence depended on credibility or matters within the jury's province; this supported reversing the judge's withdrawal of count 1.

Court's Reasoning and Analysis

The court's analysis proceeded from established legal principles and the specific evidence presented at trial, with close attention to the statutory elements of section 11(1) of the Sexual Offences Act 2003 as clarified by R v B, L.

1. The court emphasised that R v B, L requires proof of a link between the purpose of obtaining sexual gratification and the presence or observation of the child. That link was an essential legal ingredient which the prosecution needed to prove.
2. The court accepted that a judge has power to withdraw a case from a jury after all the evidence (R v Brown), but reiterated the established constraint that this power must be very sparingly exercised and must not usurp the jury's role in assessing credibility and evidence.
3. Applying the Galbraith principle, the court explained that where the prosecution case's strength depends on the view of witness reliability or matters within the jury's province, the judge should leave the case to the jury.
4. The court examined the facts and trial record and identified several points it considered material:
   • No submission of no case to answer had been made at the close of the prosecution case; the court was satisfied that such a submission would not have succeeded given the prosecution evidence, importantly the video itself which depicted the Defendant's actions.
   • The judge had begun his analysis by considering the state of mind of the Third Party who recorded and suggested the acts, but the court said that was not an appropriate starting point and, in any event, any assessment of the Third Party's state of mind would be for the jury.
   • The court found the judge had relied on his own view of the evidence rather than what a properly-directed jury could find. For example, the jury could infer that, in seeking to please the Third Party who wanted the Defendant to masturbate in the presence of the Victim, the Defendant derived sexual gratification at least in part from the Victim's presence.
   • The fact the Third Party secretly recorded and later blackmailed the Defendant was irrelevant to the Defendant's mental state at the time of the live stream and therefore irrelevant to the jury's assessment of the Defendant's purpose when acting.
   • Although the prosecution had not asked the Defendant specific questions about the essential element (the link to the child's presence), that omission did not justify withdrawing the case from the jury because the Defendant's explanation (that he had tried to prevent the Victim from seeing) was obvious from the record and was a matter for the jury to evaluate.
5. On the basis of the above, the court concluded the judge's ruling withdrawing count 1 involved an error of law or principle and was not a ruling that it was reasonable to make in all the circumstances.
6. The court also addressed reporting restrictions under section 71 of the Criminal Justice Act 2003. After receiving submissions from counsel, it concluded that the anonymised form of the judgment could be reported and that section 71 restrictions would not apply to the limited extent of permitting publication of the anonymised judgment; however, the statutory anonymity protections for the Victim under the 1992 Act remain in force.

Holding and Implications

Holding:

The court granted the prosecution's application for leave to appeal, allowed the appeal, and reversed the judge's ruling that had withdrawn count 1 from the jury. Pursuant to section 61(4)(a) of the Criminal Justice Act 2003 the court directed that the Crown Court proceedings be resumed in practical terms by commencing a new trial on count 1.

Further directions included that the retrial should, in practice, be held at a different Crown Court centre and before a different judge (the presiding judges of the Circuit were to nominate a venue and judge). The prosecution was directed to arrange a hearing to mention the case and fix a trial date as soon as possible. The court also invited the original trial judge to consider whether sentencing on count 2 should be adjourned pending the outcome of the retrial of count 1, and whether sentencing should be transferred if count 1 led to a conviction.

On reporting restrictions, the court directed that the anonymised judgment may be reported; no further publication of any details of the case is permitted, and the 1992 Act anonymity protections for the Victim remain in force.

Implications:

• The direct consequence is that the Defendant faces a new trial on count 1; the judge's withdrawal of that count has been set aside.
• The court emphasised and applied existing authorities concerning the limited circumstances in which a judge may withdraw a case from a jury, but the decision primarily corrects the trial judge's application of those authorities to the facts of this case rather than establishing a new legal principle. No new precedent beyond the application of existing authorities was created by this ruling.

Notes and Availability of Information

All personal names and identifying details in this summary have been anonymised in accordance with the requirements stated at the start of the provided opinion. Where the original opinion omitted detailed submissions or factual material, this summary follows the instruction not to invent or infer information and limits content to what was included in the opinion.