R v "ALJ"

In a sexual assault trial, the prosecution must prove every statutory element that is genuinely in issue. It need not invite the jury to examine an element that the defence has not raised and on which the evidence permits only one conclusion. Where the defendant seeks to rely in the alternative on consent or reasonable belief in consent, fairness ordinarily requires that case to be put to the complainant. A primary case of factual denial does not automatically make consent an issue. If the alternative case is not advanced, a direction that proved touching would constitute sexual assault may be sufficient, and omission of a fuller consent direction will not necessarily make the conviction unsafe.

The appellant was convicted at the Crown Court at Mold of four counts of sexual assault and one count of causing or inciting a child to engage in sexual activity. His defence was a categorical denial that any sexual touching had occurred. The judge therefore directed the jury that consent was not in issue and did not give full directions on consent or reasonable belief in consent, although he invited the jury to request assistance if needed. The appellant appealed against conviction, arguing that, under the Sexual Offences Act 2003, consent was an element which the prosecution had to prove and on which the jury had to be directed. The central issue was whether consent remained a live issue despite not being raised by the defence.

The appeal against conviction was dismissed.

1. The court accepted that a judge may sometimes be required to sum up an issue which the parties have not raised. That principle did not apply here because consent had not been made an issue by the defence.
2. The prosecution must prove any element of the offence which is genuinely in issue. That obligation does not require the jury to be taken through matters which are not disputed or which the evidence could not reasonably establish in the defendant’s favour. The relevant elements of sexual assault under the Sexual Offences Act 2003 included intentional sexual touching, its sexual character, absence of consent and absence of a reasonable belief in consent.
3. If a defendant wishes to run consent or reasonable belief in consent as an alternative case to a primary denial, the case must be put to the complainant where the evidence provides a possible basis for it. That requirement reflects fairness to the complainant. The defendant may then decide whether to challenge the complainant’s evidence by giving evidence of his own.
4. Here, the complainant’s evidence about repeatedly moving away, refusing to remove her clothes, leaving the room and otherwise ending the incidents was unchallenged on the issue of consent. If the jury accepted that evidence, it could reach only the conclusion that she did not consent and that the appellant could not reasonably have believed that she did. Consent was therefore not in issue.
5. The judge’s direction that touching, if proved as alleged, would constitute sexual assault was correct and sufficient. His invitation to the jury to request further assistance was unconventional, but the jury’s failure to do so did not make the convictions unsafe.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 1600, the appeal against conviction was dismissed.
• Crown Court at Mold — The appellant was convicted and sentenced to a total term of seven years and three months’ imprisonment.