R v Raymond Harrison

In a prosecution for historic sexual offences, a jury must be directed on every essential ingredient of each offence, not merely whether the alleged acts occurred. For indecent assault this includes an intentional assault, the necessary indecency and the relevant mental element. For rape, lack of consent remains essential even where the complainant’s age is relevant to other counts. Directions must also address statutory age limits, material dates and the number of occasions alleged in multiple-offence counts. A defendant’s denial that events occurred, coupled with a conditional concession, does not permit the judge to omit mens rea or other ingredients. The judge must direct on any possible defence arising from the evidence. Material failures require convictions to be quashed; a retrial may be ordered where the case can fairly proceed.

The appellant appealed, with leave of the single judge, against convictions on a 12-count indictment alleging historical sexual offences. The Recorder directed the jury that the elements of the offences were agreed and that the only issue was whether the alleged conduct occurred. The appeal focused on whether the directions adequately addressed the ingredients of indecent assault, rape and indecency with children, including mens rea, consent, age, dates and multiple occasions. The Crown accepted that the directions were deficient. The central issue was whether the judge could treat those matters as conceded in circumstances where the appellant denied that the events had occurred.

Appeal allowed. The Court of Appeal held that the directions materially failed to identify the issues the jury had to decide.

1. For historical indecent assault under the Sexual Offences Act 1956, the prosecution had to make the jury sure of an intentional assault, that the assault was capable of being regarded by right-minded people as indecent, and that the accused intended the assault knowing that it was likely to be regarded as indecent.
2. Where rape was charged, rather than intercourse with a person under 13, the complainant’s age did not remove the need to prove lack of consent. Lack of consent was an essential ingredient. It might be inferred from the evidence, but could not be dispensed with in the circumstances of this case.
3. For offences under section 1 of the Indecency with Children Act 1960, the amendment specifying the age of 16 did not alter the requirement for offences committed before 1 October 1997 to prove that the child was under 14.
4. The appellant’s position that the events had not occurred, coupled with a conditional acceptance that they would constitute offences if proved, did not permit the Recorder to omit directions on mens rea or other essential ingredients. Counsel could not make that omission effective where the accused denied the events.
5. The jury also required directions on the need to prove that multiple-offence counts involved more than two occasions, that relevant incidents occurred before the complainant reached the applicable age, and that any material dates in the indictment were proved. The judge was required to direct on any possible defence arising from the evidence, regardless of the defence case as presented.

The Court did not conclude that the evidence was insufficient to support a properly directed trial. It quashed all convictions and ordered a retrial on all counts as amended. A fresh indictment had to be served within 28 days, with re-arraignment within two months. Venue and judicial allocation were left to the presiding judge for the Northern Circuit. Bail was left to the Crown Court, and reporting restrictions were imposed under section 4(2) of the Contempt of Court Act 1981 until conclusion of the retrial.

1. Court of Appeal (Criminal Division): In [2022] EWCA Crim 323, allowed the appeal against conviction, quashed all convictions and ordered a retrial on amended counts.
2. Single judge: Granted leave to appeal.
3. Trial court: Convicted the appellant on a 12-count indictment after the Recorder’s summing-up.