R v BJE

The scope of a police caution is determined by the caution process and contemporaneous interview material. Where the defendant admitted touching but denied masturbating the complainant, and the documents clearly maintained that distinction, a later allegation of masturbation fell outside the caution and was not ambiguous. Verdicts on corresponding counts may differ where the counts straddle a change in statutory regime and the jury is sure that offending occurred but is uncertain about its timing. Section 55 of the Violent Crime Reduction Act 2006 then selects the regime carrying the lower maximum penalty. Any contention that corresponding counts require identical verdicts should be raised at trial with a request for a specific direction. The application for leave to appeal was refused.

The applicant was convicted in the Crown Court at Teesside of two counts of indecent assault concerning alleged masturbation of a child before 1 May 2004. He was acquitted of two later sexual offences, while the jury could not agree on other counts. The applicant renewed his application for leave to appeal against conviction.

Ground 1 alleged that the convicted conduct was covered by a 2007 police caution, or that the distinction between touching and masturbation was unfairly unclear. Ground 2 alleged irrationally inconsistent verdicts because equivalent counts covering the period after 1 May 2004 remained unresolved. The central issues were the scope of the caution and the rational operation of the different statutory regimes.

1. Application refused. The renewed application for leave to appeal against conviction had no merit.
2. The abuse-of-process and PACE points had not been raised before the trial judge. No application had been made to withdraw counts 5 and 6 or to exclude evidence under section 78 of PACE. Although the court assumed, for fairness, that the abuse-of-process argument could be raised, it criticised the manner in which the point had been advanced.
3. The contemporaneous material made the scope of the caution clear. The complainant’s 2007 statement alleged masturbation. The interview summaries recorded that BJE denied masturbating the complainant but admitted touching his penis. The caution form accurately recorded touching on a number of occasions. There was therefore no ambiguity and no basis for saying that the caution covered masturbation. The jury did not require a lawyer to explain the ordinary distinction between touching and masturbation.
4. The judge was entitled to describe the alleged masturbation, in the circumstances of the case, as rubbing or movement. That distinction had been accepted during discussions about the directions and did not alter the scope of the conduct admitted in the caution.
5. Ground 2 fell away after the concession that it was not freestanding. The court nevertheless considered it briefly. Different verdicts on counts covering periods before and after the commencement of the Sexual Offences Act 2003 were not necessarily irrational. Under section 55 of the Violent Crime Reduction Act 2006, the jury could be sure that offending occurred during the indictment period while remaining uncertain whether it occurred before or after 1 May 2004, or jurors could differ on that timing. The provision allowed conviction under the regime carrying the lower maximum penalty, here section 15(1) of the Sexual Offences Act 1956.
6. If the defence contended that corresponding counts required matching verdicts, it should have asked the trial judge for a specific direction and a ruling. The authorities cited on that procedural point were R v W (Martyn) (unreported 30 March 1999) and Rex v Mundle [2024] EWCA Crim 1289. R v G [2014] EWCA Crim 2508 provided no assistance to the applicant’s argument.

• Court of Appeal (Criminal Division): the renewed application for leave to appeal against conviction was refused: [2025] EWCA Crim 534.
• Court of Appeal single judge: refused leave to appeal; the application was renewed before the constitution of the court.
• Crown Court at Teesside: convicted BJE on counts 5 and 6, acquitted him on counts 15 and 16, and the jury could not agree on the remaining counts. A retrial was ordered on those counts.