R v Ricky Thompson

Touching which is not inherently sexual is not excluded from being sexual merely because it is below the knee. Under section 78(b) of the Sexual Offences Act 2003, the jury may decide that touching which may be sexual by its nature was sexual because of its circumstances or a person’s purpose.

A judge must leave the case to the jury where the prosecution evidence, taken at its highest, could properly support conviction and its strength depends on witness reliability. Inconsistencies about recollection ordinarily require jury assessment. They justify withdrawal only where no properly directed jury could convict.

The defendant was tried at Leicester Crown Court on three counts of sexual assault of a child under 13, contrary to section 7 of the Sexual Offences Act 2003. Counts 1 and 2 concerned allegations that he had rubbed complainant A’s legs when she was younger. Count 1 concerned touching above the knee and count 2 touching below it.

At the close of the prosecution case, HHJ Keith Raynor ruled on 10 September 2024 that there was no case to answer on counts 1 and 2. The judge considered that below-knee touching could not be sexual and that inconsistencies in A’s account meant that no properly directed jury could convict on count 1. The prosecution appealed, with the required undertaking. The issue was whether the counts should have been left to the jury under the test in R v Galbraith [1981] 1 WLR 1039.

1. The prosecution appeal was allowed. The judge was wrong in law to withdraw counts 1 and 2, and the court ordered the resumption of the trial in the Crown Court.

2. Section 7 requires intentional touching which is sexual. Under section 78(b) of the Sexual Offences Act 2003, touching may be sexual by reason of its nature and, additionally, its circumstances or a person’s purpose. The fact that alleged touching was below the knee did not make it incapable of satisfying that definition. Whether it might be sexual, and whether the jury could be sure that it was sexual in the circumstances, were questions for the jury.

3. The court’s approach was consistent with R v H [2005] EWCA Crim 732 and with the earlier treatment in R v Price [2003] EWCA Crim 2405 of leg-touching as potentially indecent. A properly directed jury could use the evidence concerning the alleged conduct towards the other complainant, subject to a cross-admissibility direction, in deciding whether the touching of A was sexual. Count 2 therefore could not be stopped on the basis that there was no evidence of an offence.

4. Applying R v Galbraith [1981] 1 WLR 1039, the inconsistencies about when and why A remembered the earlier incidents were matters a jury could assess. There was evidence of the alleged touching, contemporaneous material, and evidence that the defendant had said he had done the same to A. A reasonable jury could be sure that the alleged acts occurred. The judge should therefore have left both counts to the jury.

• Court of Appeal (Criminal Division)—In [2024] EWCA Crim 1146, allowed the prosecution appeal, reversed the terminating rulings, and ordered the resumption of the trial.
• Crown Court at Leicester—HHJ Keith Raynor ruled on 10 September 2024, following a half-time submission, that there was no case to answer on counts 1 and 2.