NJT, R. v

Factual and Procedural Background

On 10 February 2025 at the Crown Court in The City before Judge Doig, the Appellant was convicted on one count of engaging in sexual activity in the presence of a child contrary to section 11(1) of the Sexual Offences Act 2003 (count 3) and acquitted on two other counts. On 7 April 2025 the Appellant (then aged 62) was sentenced on count 3 to an 18 month community order with unpaid work (150 hours) and a rehabilitation activity requirement (up to 40 days); a restraining order was made. Leave to appeal the conviction was granted by the Single Judge and the matter proceeded to the Court of Appeal before Judge Stuart-Smith, Judge O'Farrell and Judge Marks (sitting as a judge of the CACD).

The background facts (as found at trial) were that the Appellant and his Co-accused were in a relationship between 2009 and 2014. The Co-accused's child (the Complainant), born in November 2004, was around six when first acquainted with the Appellant. The Complainant made disclosures in October 2020 about alleged offending between November 2011 and January 2014 when under 13. Count 3 was alleged to have occurred when the Complainant was about seven or eight. The Appellant had previously worked for Company A and, in 2007, had performed a striptease at a workplace event which had been recorded and uploaded to Company B and broadcast by Company C. The prosecution case was that during an incident the Appellant performed a striptease and showed his penis to the Complainant. The Co-accused's evidence was that any exposure was accidental; the Appellant denied recollection but accepted some routine took place and denied any sexual purpose.

Legal Issues Presented

1. Whether the trial judge's directions to the jury on count 3 were wrong in a way that rendered the conviction unsafe, specifically whether the jury could properly conclude that the Appellant's conduct was at least partly for the purpose of obtaining sexual gratification from the presence of the Complainant.
2. How the legal requirement under section 11(1) of the Sexual Offences Act 2003 (that the sexual activity be done for sexual gratification in the presence of the child) should be directed to the jury, in light of R v B [2018] EWCA Crim 1439.

Arguments of the Parties

Appellant's Arguments

• Attorney Gatland submitted the judge directed the jury that if the striptease occurred and the Appellant showed his penis to the Complainant, the jury could conclude that the purpose was at least partly sexual gratification from the child's presence.
• He argued this direction was wrong: even if a sexual act occurred, one cannot infer it was probably for sexual gratification. Any exposure was at most fleeting and there was no evidence the Appellant was sexually aroused; consequently there was no evidence the act was done for sexual gratification from the presence of a child.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court analysed the written legal directions, the Route to Verdict and the oral summing-up given to the jury. The agreed written directions set out the distinct elements the prosecution had to prove: intentional sexual activity, presence of the child, and that the act was for the purpose of obtaining sexual gratification. The judge's oral directions reiterated those elements and instructed the jury that they must be sure the purpose included sexual gratification from the child's presence or the Defendant must be acquitted.

The Appellant challenged paragraph 71 of the written directions and parts of the oral summing-up as potentially permitting the jury to infer purpose automatically from the sexual nature of the act. The Court accepted paragraph 71 could have been more helpfully phrased but emphasised that, in context, the written directions, the Route to Verdict and the judge's oral emphasis made clear that questions of act, presence and purpose were to be considered separately. On that basis the Court concluded the jury could not reasonably have been misled into conflating the elements; the conviction was therefore not unsafe.

Holding and Implications

DISMISSED

The appeal against conviction was dismissed and the conviction on count 3 stands. The direct effect is that the trial conviction is upheld. The opinion does not establish any new legal precedent beyond applying R v B to the facts and confirms that carefully framed written and oral directions that separately identify the elements of the offence will suffice; no broader implications were identified in the opinion.