Davis, R. v

Factual and Procedural Background

This is an appeal from a Crown Court trial in The City. The Applicant was tried on multiple counts of alleged sexual assaults arising from historic medical examinations. On 14 December 2023 the Applicant was convicted by a majority (10 to 1) of two counts: an indecent assault (Count 1) and an assault by penetration (Count 2). The Applicant was acquitted of Count 3 (to which Count 4 was an alternative), the jury initially failed to agree on Count 5, and on retrial the Applicant was acquitted of Count 5. On 13 January 2025 the Applicant was sentenced to concurrent terms producing an overall sentence of eight years' imprisonment. Notification requirements were ordered. The Applicant timely appealed sentence but sought leave to appeal conviction out of time; the single judge refused leave and the Applicant renews the application to the full court.

Facts relevant to the convictions, as presented at trial, included two complainants (referred to in the trial as C1 and C2). Complainant 1 attended the Applicant following marriage in 1994 with a vaginal lump complaint; she alleged an internal digital examination was performed without a chaperone and that the Applicant offered to examine her hymen for virginity. Complainant 2 attended after marriage in 2006 for painful intercourse; she alleged the Applicant inserted two fingers into her vagina, describing it as "stretching", without use of medical implements or a chaperone. Medical records and expert evidence were adduced by both sides. The prosecution relied on expert gynaecological evidence that the described practices lacked accepted medical basis. The defence relied on the Applicant's notes, denial of recollection, and expert evidence asserting some medical justification. Additional contested material included findings from a medical tribunal body and evidence about chaperone practice. Various grounds of appeal and sentencing challenges were advanced to the court.

Legal Issues Presented

1. Whether the trial judge's directions on the meaning of "sexual" (under section 78 of the Sexual Offences Act 2003) and the route to verdict were inadequate or confusing, particularly where an internal medical examination might be medically inappropriate but not sexually motivated (Ground 1).
2. Whether findings of the Medical Practitioners Tribunal Service and evidence about chaperone policies were properly admitted under section 101(1)(f) Criminal Justice Act 2003 and otherwise given suitable directions (Ground 2).
3. Whether the trial judge erred in allowing Complainant 1's daughter (a midwife by background) to give evidence containing opinion material without compliance with Part 19 Criminal Procedure Rules (Ground 3).
4. Whether the judge erred in excluding defence expert evidence (Dr Harris) on "stretching" on grounds of lateness and relevance (Ground 4).
5. Whether the judge failed properly to direct the jury on evidence of distress (Ground 5).
6. Whether the judge inadequately dealt with complaint evidence, delays and inconsistencies, including admissibility of other complaints under section 100 Criminal Justice Act 2003 or section 41 Youth Justice and Criminal Evidence Act 1999 (Grounds concerning complaint evidence).
7. Whether failings of counsel in an earlier trial gave rise to identifiable legal errors (Ground concerning defence representation).
8. Whether fresh expert evidence (report dated 9 June 2025) meets section 23(2) Criminal Appeal Act 1968 thresholds to permit new evidence on appeal (Ground 9).
9. Whether the sentence of eight years' imprisonment was excessive or wrong in principle (multiple sentencing grounds).

Arguments of the Parties

Applicant's Arguments

• The jury were given inadequate, piecemeal or confusing directions on what made touching "sexual" or "indecent", risking conviction where examinations were medically inappropriate but not sexually motivated (Ground 1).
• The trial court improperly admitted MPTS findings and chaperone-related material without proper basis or adequate directions (Ground 2).
• Complainant 1's daughter should not have been permitted to give opinion evidence without Part 19 compliance (Ground 3).
• A defence expert (retired GP) was wrongly excluded despite relevance to "stretching" (Ground 4).
• The judge failed adequately to direct on distress, complaint evidence, inconsistencies, and implications of delay, and earlier counsel's conduct gave rise to error (various grounds).
• Fresh expert evidence dated 9 June 2025 should be admitted as new evidence meeting statutory criteria (Ground 9).
• Sentencing reductions (for lack of sexual gratification, personal mitigation, and totality) were insufficient.

Prosecution's Arguments

• The jury were given legally correct directions on "sexual" (two-stage approach under section 78) and indecency; the court relied on statutory provisions and authority to support those directions.
• MPTS findings and chaperone evidence were properly admitted: the tribunal material was necessary to correct a false impression and chaperone evidence was directly relevant to the circumstances of the alleged offences.
• The midwife-witness evidence was contextual (why the complaint was reported) rather than expert opinion requiring Part 19 treatment.
• The defence expert was properly excluded for lateness, lack of recent practice, insufficient relevance and failure to comply with procedural rules.
• Directions on distress, complaint evidence and inconsistencies were adequate; applications to admit other complaints were correctly refused after detailed consideration; fresh expert evidence was late and available earlier; sentencing adjustments were within the judge's discretion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Kumar [2006] EWCA Crim. 1946	Observations of this court relied upon by the Applicant concerning the approach to indecency/sexuality in particular contexts as cited in submissions.	The Applicant relied upon those observations; the court noted the reliance but proceeded to decide the statutory approach under section 78 and related authority when considering leave.
Attorney General's Reference (section 36 of the Criminal Justice Act 1972) (No 1 of 2020), [2020] EWCA Crim 1665	Interpretation of section 78 Sexual Offences Act 2003: prosecution need not prove that the accused intended the touching to be sexual; the accused's purpose may be relevant under s78(b).	The court relied on the conclusions in paras 45–46 of that decision to interpret section 78(b) and to assess whether the judge's directions in this case were adequate; this authority supported granting leave on Ground 1 as arguable.

Court's Reasoning and Analysis

The court began by identifying the statutory framework governing whether conduct is "sexual" (section 78 of the Sexual Offences Act 2003) and noted that, in this case, section 78(b) applied. The court cited Attorney General's Reference (No 1 of 2020) for the proposition that the prosecution need not prove the accused intended the touching to be sexual and that the accused's purpose may be relevant to the reasonable person's assessment under s78(b).

On Ground 1 (directions on "sexual" and "indecent"), the court concluded that, given the unusual factual matrix (internal medical examinations alleged to be medically inappropriate), it was at least arguable that the trial judge ought to have provided a more fact-specific direction tailored to whether the examinations were inappropriate but not sexually motivated. For that reason the court granted leave to appeal on Ground 1 for full consideration.

On Ground 2 (MPTS findings and chaperone evidence) the court accepted the prosecution's position that the tribunal findings were admissible to correct any false impression and that chaperone evidence related directly to the circumstances of the alleged offences; the judge's directions on bad character were adequate and no arguable error was identified.

On Ground 3 (daughter/midwife evidence) the court found the witness's evidence to be contextual about why the complaint was reported rather than expert opinion necessitating Part 19 treatment; no arguable error was found.

On Ground 4 (excluded defence expert) the court concluded the exclusion was lawful: the evidence was late, the proposed expert had been out of practice for many years and her evidence was of limited relevance to the issues; no arguable error.

Grounds concerning distress, complaint evidence, inconsistencies, and tactical choices by defence counsel were considered and rejected as not arguable; the trial judge's directions were found adequate in each respect. Applications to admit extensive prior complaints were examined in detail by the trial judge; he concluded there was insufficient evidence to treat those complaints as false or sufficiently probative; the appellate court found that conclusion robust.

On the fresh expert evidence (section 23 Criminal Appeal Act 1968) the court agreed with the single judge that the material was late and potentially available earlier; no arguable basis was shown to admit it on appeal.

On sentence, the court reviewed the judge's approach to categorisation and uplift for psychological harm and vulnerability, the adjustments made for absence of proven sexual gratification and personal mitigation, and the exercise of totality. The court concluded the sentencing judge had been entitled to the adjustments he made and that the sentence was not manifestly excessive or wrong in principle.

Holding and Implications

Core Ruling: Leave to appeal is granted in respect of Ground 1 (directions on the meaning of "sexual"/"indecent"); all other grounds of appeal against conviction are refused as not arguable. The question of extension of time for the out-of-time conviction appeal is left for full consideration by the full court. The Applicant's challenge to sentence is not established as arguable and the sentence of eight years' imprisonment stands.

Implications: The direct effect is that the Applicant will be permitted to pursue a full appeal on the limited issue identified in Ground 1 before the full court; no other grounds will proceed on this application. No novel precedent beyond the interpretation of section 78, as informed by Attorney General's Reference (No 1 of 2020), was established by this decision; other contested evidential and procedural rulings were upheld as non-arguable on appeal.