R v Wayne Davis

Where Sexual Offences Act 2003, section 78(b) applies, whether conduct is sexual requires a two-stage inquiry. A reasonable person must first consider whether, because of its nature, the conduct may be sexual. The circumstances or the purpose of any person must then be considered. The prosecution need not prove that the defendant intended the touching to be sexual, and sexual gratification is not a separate element, although purpose may be relevant. In an unusual medical context, jury directions should be sufficiently bespoke to explain how the statutory test applies, including where an examination may be medically inappropriate but not sexually motivated. Leave was granted on that issue. The remaining conviction and sentence grounds were not arguable.

The applicant was convicted by a majority of two sexual offences at the Crown Court at Manchester following intimate medical examinations of two complainants. He was sentenced on 13 January 2025 to eight years’ imprisonment, with concurrent sentences on the two counts.

His application for leave to appeal against conviction was made 383 days out of time. His application concerning sentence was made in time. A single judge refused permission, and the applicant renewed both applications before the Court of Appeal (Criminal Division).

The application raised issues concerning the jury directions on the meaning of sexual and indecent conduct, the admission and exclusion of evidence, fresh expert evidence, alleged failures by trial counsel, and the adequacy of the sentence. The central issue was whether the directions sufficiently explained the statutory test for sexual conduct in the context of medical examinations.

Disposition. Leave to appeal was granted on conviction ground 1. The question whether time should be extended for the conviction appeal was left to the full court. The other conviction grounds and all grounds concerning sentence were not arguable.

1. The court applied section 78(b) of the Sexual Offences Act 2003. The applicable inquiry is whether a reasonable person would consider that, because of its nature, the activity may be sexual and, because of its circumstances or the purpose of any person, it is sexual. The prosecution need not prove that the defendant intended the touching to be sexual. Purpose may nevertheless assist at the second stage. Sexual gratification is not a separate element. The court treated Attorney General’s Reference (section 36 of the Criminal Justice Act 1972) (No 1 of 2020) [2020] EWCA Crim 1665 as the leading authority on this approach.
2. Although the directions contained the statutory ingredients, the unusual medical context and the jury’s requests for further assistance made it properly arguable that the judge should have given a fact-specific or bespoke direction. The directions should have explained more clearly what the jury had to be sure of where an examination might be medically inappropriate or incompetent but not sexually motivated.
3. The remaining conviction grounds disclosed no arguable error. Medical Practitioners Tribunal Service evidence was admissible to correct a potentially misleading impression of the applicant’s practice under section 101(1)(f) of the Criminal Justice Act 2003, and the directions on its relevance were adequate. Evidence about chaperones was contextual evidence directly relevant to the circumstances of the complaints, not expert evidence requiring treatment under Part 19 of the Criminal Procedure Rules. The exclusion of late and insufficiently explained expert evidence was open to the trial judge, as were the conclusions concerning other complaints and the detailed directions on distress, complaint evidence and inconsistencies. The decision not to testify was an informed tactical decision.
4. The proposed fresh expert evidence did not satisfy section 23(2) of the Criminal Appeal Act 1968. The issues had long been central to the proceedings, the evidence was potentially available before trial, and no sensible explanation for its late production had been given.
5. The sentence of eight years’ imprisonment was neither manifestly excessive nor wrong in principle. The sentencing judge had properly considered the absence of proven sexual gratification, the applicant’s personal mitigation, his character, and totality. The sentence appeal was therefore not arguable.

• Court of Appeal (Criminal Division) — On the renewed applications, leave to appeal was granted on conviction ground 1. The extension-of-time question was reserved for the full court; the remaining grounds were rejected as not arguable. [2026] EWCA Crim 671
• Crown Court at Manchester — The applicant was convicted by a majority of two counts and sentenced to eight years’ imprisonment, with concurrent sentences.
• Single judge — Refused the applicant’s applications for leave to appeal.