EGC, R. v

Factual and Procedural Background

The Appellant was tried in the Crown Court after a 12-day trial and, on 30 July 2025, was convicted of two counts: sexual assault (count 2) and indecent assault (count 3), and acquitted on a rape count (count 1). There were three complainants in the trial, referred to here as Complainant 1, Complainant 2 and Complainant 3. The Appellant had earlier pleaded guilty on 22 April 2024 to other child sexual offences involving a different child.

Count 3 concerned an alleged indecent assault on Complainant 3 when she was about 10 years old and the Appellant was between 10 and 14 years old. The indictment period for count 3 was at first limited to dates when the Appellant would have been 11–12, but the trial judge (with agreement of counsel) directed the jury they could convict if the offence occurred between the Appellant's 10th birthday and 1 May 2004, thereby expanding the date range to include a period when the common law rebuttable presumption of doli incapax (that children aged 10–14 lack criminal capacity) was still in force.

An application for leave to appeal against the Appellant's conviction on counts 2 and 3 was referred to the Full Court by the Registrar. The prosecution conceded that the conviction on count 3 could not stand; the Full Court considered that concession and the legal principles governing doli incapax and directions to juries.

Legal Issues Presented

1. Whether the absence of a direction to the jury that, for a defendant aged between 10 and 14, there must be clear positive evidence of knowledge that the conduct was seriously wrong (the doli incapax requirement) rendered the conviction on count 3 unsafe.
2. Whether any such omission in respect of count 3 also rendered the conviction on count 2 unsafe because the jury might have relied on the erroneous conviction on count 3 when deciding count 2.

Arguments of the Parties

Appellant's Arguments

• The conviction on count 3 is unsafe because the trial judge failed to direct the jury that, for a young defendant, they must be sure the defendant knew the conduct was seriously wrong and that there was clear positive evidence of such guilty knowledge independent of the acts themselves (the doli incapax direction).
• The omission in respect of count 3 also rendered the conviction on count 2 unsafe, because the jury may have considered count 3 first (it was earliest in time) and treated that conviction as supporting the case on count 2.

Prosecution's Arguments

• The prosecution conceded that the conviction on count 3 could not stand because the required doli incapax direction was not given in circumstances where the date range allowed for the Appellant to have been 10 years old.
• The prosecution resisted the submission that the conviction on count 2 was unsafe, arguing the trial judge had given careful directions about the limited relevance of the Appellant's other admitted offending and that there was no real possibility the jury relied on count 3 when convicting on count 2.

Table of Precedents Cited

Court's Reasoning and Analysis

The Full Court examined the trial judge's directions. Although the trial judge had directed the jury to consider each count separately and had given guidance on intention, bad character and cross-admissibility, she did not give the specific direction required by the authorities on doli incapax: that for a defendant aged between 10 and 14 the jury must be satisfied by clear positive evidence, independent of the acts themselves, that the defendant knew the conduct was seriously wrong rather than mere childish mischief.

The court observed that the jury must have been satisfied the Appellant did the acts and intended to do them, and that the date range as directed allowed for the possibility that the Appellant was only 10 years old when the act occurred. Given the omission of the required doli incapax direction, and the authorities cited, the court concluded the conviction on count 3 was unsafe. The prosecution conceded this point and the court allowed the appeal on count 3 and quashed that conviction.

As to count 2, the court considered the Appellant's submission that the erroneous handling of count 3 could have contaminated the jury's decision on count 2. The court noted the trial judge's careful directions limiting the relevance of the Appellant's admitted offending to the issue of the Appellant's adult state of mind and sexual interest in children, and that the trial judge explicitly directed that such matters were irrelevant to count 3 (when both parties were children) and to count 1 (where the complainant was an adult). Given those directions and the obvious evidence of the Appellant's adult sexual interest, the court concluded there was no real possibility that the jury treated the erroneous conviction on count 3 as material in reaching the verdict on count 2. Accordingly, leave to appeal against count 2 was refused.

Holding and Implications

CONVICTION ON COUNT 3 QUASHED.

The court granted leave to appeal on count 3, allowed the appeal and quashed the conviction on that count. The prosecution conceded the conviction on count 3 could not stand. The court refused leave to appeal against the conviction on count 2, finding that conviction safe.

This decision directly affects the parties by removing the conviction on count 3 and leaving intact the conviction on count 2; the opinion does not purport to establish new legal principle beyond application of established authorities on the doli incapax direction.