Pacurar, R. v

An allegation under section 63(1) of the Sexual Offences Act 2003 need not always identify one particular intended sexual offence. Where the evidence establishes an intention to commit a sexual offence but cannot establish precisely which offence or victim was intended, the prosecution may rely on a properly bounded allegation. Fairness requires sufficient particulars, whether in the indictment or the way the case is put, to make clear the case the defendant must meet.

The jury need not agree upon the precise intended sexual offence or intended victim. It is enough that all jurors are sure of the statutory ingredients, including an intention to commit a relevant sexual offence.

The appellant was convicted at the Crown Court at Winchester of trespass with intent to commit a sexual offence, contrary to section 63(1) of the Sexual Offences Act 2003, after entering a family home naked and behaving sexually. He was sentenced to three-and-a-half years’ imprisonment.

On appeal, he contended that the indictment and directions were defective because the prosecution had not specified the particular sexual offence intended. He also challenged the sufficiency of the evidence, the absence of a unanimity direction, the exclusion of automatism and expert opinion, the good-character direction, and prosecuting counsel’s conduct. The central issue was the degree of particularity required for a section 63 count.

Appeal against conviction dismissed.

1. Section 63(1) requires proof that the defendant, while trespassing, intended to commit a relevant sexual offence. The statutory language embraces any offence within Part 1 of the Sexual Offences Act 2003. Parliament intended the provision to cover both cases in which a particular intended offence can be identified and cases in which the circumstances establish a sexual intent but do not permit precise identification of the intended offence or victim.

2. The controlling requirement is fairness. Under rule 10.2 of the Criminal Procedure Rules 2015, the indictment must make clear what the prosecutor alleges. In many cases the intended offence should be specified. In this case, however, the particulars and the Crown’s defined case made clear that the allegation was an intended sexual assault, at least, upon a member of the identified household, at the stated place and time. The trial was therefore fair. The approach was consistent with R v Jones [2008] QB 460.

3. The judge’s directions adequately required the jury to be sure both of the appellant’s knowledge or recklessness as to trespass and of his intention to commit a sexual offence. A child could not consent, and the directions sufficiently explained the different position if the intended victim was an adult.

4. No Brown direction was required. Jurors did not have to agree upon the same intended sexual offence, or the same intended victim, provided all were sure that the statutory ingredients of section 63 were proved. The limited circumstances in which such a direction is required could not properly be extended to this offence.

5. The remaining grounds did not undermine the safety of the conviction. There was no evidential basis for automatism. The judge was entitled to leave the ultimate issue of intent to the jury without expert opinion upon it. The omitted credibility limb of the good-character direction caused no prejudice, and the directions and summing-up were fair.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and held the conviction safe: [2016] EWCA Crim 569.
• Crown Court at Winchester — convicted the appellant on 18 September 2015 of trespass with intent to commit a sexual offence and sentenced him to three-and-a-half years’ imprisonment.