R v Allahnawaz Ishaqzai

Where a charge under section 9 of the Sexual Offences Act 2003 turns on whether the defendant reasonably believed that a child was 16 or over, the prosecution may prove the ingredient in either of two ways. It may make the jury sure that the defendant did not hold that belief. Alternatively, it may make the jury sure that any belief held, or possibly held, was not reasonable in all the relevant circumstances.

Directions must keep those inquiries distinct and state the burden accurately. A jury may properly be assisted by a fair, non-exhaustive list of relevant circumstances. A materially unclear or misleading direction on the sole live issue, given in answer to a jury question, may render the conviction unsafe.

The appellant was convicted at the Crown Court at Snaresbrook of sexual activity with a child, contrary to section 9 of the Sexual Offences Act 2003, and was sentenced to 18 months’ imprisonment with ancillary orders. The child was aged 14. The appellant accepted limited sexual activity but maintained that he reasonably believed she was 16 or over.

The jury acquitted the appellant on a further count and acquitted his co-accused of all charges. On the remaining count, the appellant’s belief about the child’s age was the only live issue. During deliberations, the jury asked for a legal definition of “reasonably”. The judge’s supplementary direction prompted the appeal against conviction.

1. Appeal allowed. The conviction was unsafe. It was quashed and a retrial on count 1 was ordered.
2. Under section 9(1)(c)(i) of the Sexual Offences Act 2003, where the child is aged 13, 14 or 15, the prosecution must prove both that the child was under 16 and that the defendant did not reasonably believe that the child was 16 or over. The latter ingredient may be proved by making the jury sure either that the defendant did not hold such a belief, which is a subjective inquiry, or that any belief held or possibly held was not reasonable in all the relevant circumstances.
3. A judge may assist the jury on the objective inquiry by identifying relevant circumstances. These will vary with the case and may include the child’s appearance, dress and behaviour; questions or comments about age; indications of age given by the child or others; and earlier encounters. The list must be fair to both parties and non-exhaustive. The court left open the extent to which characteristics of a defendant may be relevant to assessing the reasonableness of belief.
4. The judge’s supplementary direction was at best unclear and potentially misleading. It used wording designed for a different type of belief issue and did not clearly explain the statutory ingredient. The earlier written and oral directions had also contained a material error, by referring to belief that the child was over 16 rather than 16 or over. The listed circumstances omitted potentially favourable matters.
5. The jury’s question concerned the sole live issue on the count of conviction. Although there was evidence capable of proving that ingredient, the court could not regard the conviction as safe after the flawed answer. The interests of justice required a retrial.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the conviction on count 1, and ordered a retrial.
• Crown Court at Snaresbrook: In January 2020, a jury convicted the appellant on count 1 of sexual activity with a child, acquitted him on count 2, and acquitted his co-accused on all counts.