R v ACR

For an offence of sexual activity in the presence of a child under the Sexual Offences Act 2003, the prosecution must prove a link between the defendant’s purpose of obtaining sexual gratification and the child’s presence or observation. A judge may withdraw a case after all the evidence, even without an earlier no-case submission, but the power is very sparingly exercised. The judge must consider what a properly directed jury could find, rather than substitute a personal view of the evidence. Withdrawal is justified only in the rare case where defence evidence delivers a knock-out blow to the prosecution case. The appeal was allowed and a new trial directed.

The defendant was tried on charges arising from a video showing sexual activity in the presence of his young son. The trial judge withdrew the count under section 11(1) of the Sexual Offences Act 2003 after all the evidence had been heard, and the jury was discharged. The defendant then pleaded guilty to a separate count relating to the same activity. The prosecution applied under section 58 of the Criminal Justice Act 2003 for leave to appeal. The central issues were whether the judge could withdraw the count at that stage, whether the ruling was unreasonable, and whether the guilty plea affected the pursuit of the count.

1. Disposition. The prosecution’s application for leave to appeal was granted. The appeal was allowed and the judge’s ruling withdrawing count 1 was reversed. Under section 61(4)(a) of the Criminal Justice Act 2003, the Crown Court proceedings were directed to resume, practically by way of a new trial before a different judge and at a different Crown Court centre.
2. Elements of the offence. Section 11(1) of the Sexual Offences Act 2003 requires proof that the defendant engaged in sexual activity for the purpose of obtaining sexual gratification from the child’s presence or observation. The requirement was identified in R v B, L [2018] EWCA Crim 1439. Personal sexual gratification while a child happens to be present is not, by itself, sufficient.
3. No-case principles. Under R v Brown (Davina) [2001] EWCA Crim 961, a judge may withdraw a case after the close of the prosecution evidence, including where no submission of no case to answer was made. The power remains available after all the evidence, but must be exercised very sparingly. The principles in R v Galbraith [1981] 1 WLR 1039 apply at that stage. Where the result depends on witness reliability or matters within the jury’s province, the case must ordinarily be left to the jury. Withdrawal will generally be confined to the rare case in which defence evidence has delivered a knock-out blow to the prosecution case.
4. Application. The video and the defendant’s conduct provided evidence from which a properly directed jury could infer the necessary link between sexual gratification and the child’s presence. The judge wrongly assessed the evidence himself instead of asking what the jury could properly find. The defendant’s explanation remained for the jury. The failure to ask particular questions about the overlooked element was a matter for the jury and did not justify withdrawal because the defendant’s position and likely answer were already apparent and no unfair prejudice had resulted. The subsequent secret recording and blackmail were irrelevant to the defendant’s state of mind when he acted.
5. The guilty plea to count 2 was not a reason why count 1 could not or should not be pursued. The reporting restrictions under section 71 of the Criminal Justice Act 2003 were relaxed under section 71(3) to permit publication of the anonymised judgment only. The restrictions protecting the victim’s identity under the Sexual Offences (Amendment) Act 1992 remained in force.

• Court of Appeal (Criminal Division): In [2025] EWCA Crim 1220, the prosecution obtained leave to appeal, the appeal was allowed, the ruling was reversed, and the proceedings were directed to resume for a new trial.
• Crown Court: After all the evidence, the trial judge withdrew count 1 from the jury and the jury was discharged. The defendant subsequently pleaded guilty to count 2.