Grout, R v

Under section 8 of the Sexual Offences Act 2003, the relevant sexual activity is that of the child, not that of the defendant. Charges of intentionally causing and intentionally inciting a child to engage in sexual activity are distinct offences and must be identified with precision.

A count that combines several offences, factual allegations and alternative mental elements may be unsafe where the jury cannot identify the particular offence and ingredients on which it is asked to convict. Directions must keep separate the defendant’s alleged deliberate encouragement or causation, the child’s alleged activity, and whether that activity is sexual under section 78. A failure to do so, especially where unsupported allegations remain before the jury, can render a conviction unsafe.

The appellant was convicted at Kingston Crown Court of intentionally causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003. The count alleged webcam communications in which he asked the 12-year-old complainant to show her bra and whether she would remove clothing.

The evidence was that the complainant showed a bra strap, but there was no evidence that she removed clothing. The count combined allegations of causing and inciting, and several possible activities. The appeal challenged the legal sufficiency of the count and the judge’s directions on activity and sexual activity. The central issue was whether those defects left the basis of the jury’s conviction safely ascertainable.

1. Appeal allowed; conviction quashed. The court held that the conviction on count 1 was unsafe.

2. Section 8(1) of the Sexual Offences Act 2003 creates distinct offences of intentionally causing, and intentionally inciting, a child to engage in sexual activity. Applying R v Walker (Simon John) [2006] EWCA Crim 1907, incitement requires deliberate encouragement or persuasion. The alleged activity must be that of the child. The defendant’s own conduct is relevant only as the alleged intentional causing or incitement.

3. Count 1 improperly combined at least four possible offences. They depended on different facts, actions and mental elements. The judge should have required the prosecution to identify the specific allegations and should have directed separate counts if they were pursued. Two allegations concerning the removal of clothing lacked sufficient evidence. There was also no need to charge both causing and inciting in relation to the showing of the bra strap, which had in fact occurred.

4. The written directions compounded that defect. They elided the appellant’s conduct with the complainant’s activity and did not identify which conduct related to which alleged offence. The jury were not clearly directed that it had to decide whether the complainant’s activity, rather than the appellant’s request, was sexual.

5. Under section 78, the inquiry proceeds through the stages identified in R v H [2005] 1 WLR 2005: whether the activity is intrinsically sexual; if not, whether it may be sexual by its nature; and, if so, whether its circumstances or a person’s purpose make it sexual. Although the judge recited those stages, his further direction after the jury’s question did not correct the basic confusion. The court could not know on which impermissible or misunderstood basis the jury convicted.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and quashed the conviction: [2011] EWCA Crim 299.
• Crown Court at Kingston: On 5 February 2010, the appellant was convicted under section 8(1) of the Sexual Offences Act 2003 and sentenced to a community sentence with 40 hours’ unpaid work.