R v NJT

For an offence under section 11(1) of the Sexual Offences Act 2003, intentional sexual activity in the presence of a child and the purpose of obtaining sexual gratification from that presence are distinct elements. The jury must consider the purpose element separately. A potentially imperfect passage in the directions must be assessed in the context of the directions as a whole. Where the written directions, route to verdict and summing-up clearly separate the issues and require acquittal unless the jury is sure of the required purpose, the conviction is not unsafe.

The appellant was convicted at Newcastle upon Tyne Crown Court of engaging in sexual activity in the presence of a child, contrary to section 11(1) of the Sexual Offences Act 2003. He was acquitted on two other counts and received an 18-month community order.

He appealed against conviction with leave of the Single Judge. The appeal concerned whether the judge’s directions wrongly encouraged the jury to infer sexual gratification from the finding that the appellant had performed a striptease and exposed himself in the complainant’s presence. The central issue was whether the directions caused the jury to conflate sexual activity with the separate purpose requirement.

The appeal against conviction was dismissed.

1. Distinct statutory elements. The court referred to R v B [2018] EWCA Crim 1439. In a prosecution under section 11(1) of the Sexual Offences Act 2003, the prosecution must prove both intentional sexual activity in the presence of a child and a purpose of obtaining sexual gratification from the child’s presence. Those are separate elements.
2. Directions considered as a whole. The written directions identified sexual activity and the purpose of obtaining sexual gratification as distinct matters for the jury. Although the wording of one paragraph concerning the possible inference from the alleged striptease could have been clearer, the Route to Verdict separately identified the relevant questions. The oral summing-up also made clear that the appellant had to be acquitted unless the jury was sure that at least part of his purpose was to obtain sexual gratification from the complainant’s presence.
3. Safety of conviction. Read in context, the directions could not reasonably have misled the jury into treating proof of sexual activity as automatically establishing the required purpose. The conviction was therefore not unsafe. The appeal was dismissed.

• Crown Court at Newcastle upon Tyne: The appellant was convicted on count 3 on 10 February 2025, acquitted on counts 1 and 2, and sentenced on 7 April 2025 to an 18-month community order.
• Court of Appeal (Criminal Division): The appeal against conviction, brought with leave of the Single Judge, was dismissed.