R v ACR

This case concerns an allegation of a sexual offence committed by a father against his young son, whom we shall call X. X is entitled to the lifelong protection of the provisions of the Sexual Offences (Amendment) Act 1992. Accordingly, during his lifetime, no matter may be included in any publication if it is likely to lead members of the public to identify X as the victim of this offence. To name the father would inevitably lead to the identification of the son. We have therefore directed that his name be anonymised by using the randomly chosen letters ACR. No report of these proceedings may include the father's true name or any details which would lead to his identification.

Further reporting restrictions apply to this case pursuant to section 71 of the Criminal Justice Act 2003. The effect at present of those provisions is that no publication may include a report of these proceedings save for certain specified basic facts. We shall return to these restrictions at the conclusion of this judgment.

ACR, whom we shall refer to as 'the defendant', stood trial on an indictment containing two counts: engaging in sexual activity in the presence of a child, contrary to section 11(1) of the Sexual Offences Act 2003 (count 1), and taking indecent photographs of a child, contrary to section 1(1) (a) of the Protection of Children Act 1978 (count 2). Both charges related to a video which the defendant had recorded. After all the evidence had been heard, the judge ruled that count 1 be withdrawn from the jury. The defendant thereafter pleaded guilty to count 2. The prosecution now apply, pursuant to section 58 of the Criminal Justice Act 2003, for leave to appeal against the judge's ruling on count 1.

The video which was the subject of the charges was found in the course of a police investigation into a man whom we shall call Z. Z had adopted an internet persona as a woman. He persuaded men and boys, including the defendant, to perform sexual acts and live stream them to Z. Z would record those acts and use them to blackmail his victims into committing sexual acts against their children and siblings.

At Z's suggestion, the defendant agreed to provide a live stream of himself masturbating in the presence of X, who was then aged 4. The police recovered two videos, recorded by Z on separate occasions, of the defendant live streaming. The charge related to the later of those two videos.

Each member of this constitution of the court has seen the recording, which is just under three minutes long. It shows the defendant sitting on a sofa next to X. X is playing a video game using a hand-held console, with images on the large television screen in the room. The defendant is holding his mobile phone in his left hand and at the start of the film uses his right hand to stroke his penis through his tracksuit bottoms. As the recording continues, the defendant appears to be either receiving communications or perhaps engaged in two-way text communications. Later in the recording, he pulled his tracksuit bottoms down, exposing his penis, and began to masturbate it. At that time the defendant moved his phone in such a way that it could be seen that he was masturbating his penis with his young son sitting beside him. At the end of the clip of film the phone was again moved to show the defendant's face, the defendant still sitting next to his son.

We should note that on our viewing of the film ,it does not appear that the defendant made any attempt whatsoever to conceal what he was doing from being seen by his son.

About ten weeks later, the defendant called the police to report that he was being blackmailed by Z.

By section 11(1) of the Sexual Offences Act 2003:

In R v B, L [2018] EWCA Crim 1439it was held at (29) that the ordinary and natural meaning of section 11(1) and the intention of the legislature is that:

It was therefore necessary for the prosecution in this case to prove as one of the legal ingredients of the offence that the defendant masturbated in the presence of his son for the purpose of obtaining some sexual gratification from the presence of that child.

We note that the decision in R v B, L, and the requirement of a link between the purpose of obtaining sexual gratification and the presence of the child, are referred to in the current (2025) Edition of Archbold at Chapter 20-87, and that a similar note has appeared in successive editions of Archbold for at least five years.

Unhappily, at the start of the trial neither counsel was aware of the decision in R v B, L. Nor was the judge. Counsel then appearing for the prosecution (not Mr Jarvis KC) conducted the case on the basis that the defendant would be guilty of the offence in count 1 if he simply committed the sexual act for his own sexual gratification in the presence of a child. The defendant gave evidence and was cross-examined on that basis.

It was only when the judge was preparing for his directions of law for the jury that he noticed the decision in R v B, L and brought it to counsel's attention. The judge asked prosecution counsel what evidence there was which established the necessary link between the sexual gratification and the presence of the child. Counsel submitted that the jury could properly infer that the defendant, after speaking to Z, decided to perform a sexual act which involved his child. Counsel accepted that he had not put that allegation to the defendant in cross-examination, but he pointed out the defendant had in any event given evidence that he had actively tried to prevent X from seeing what he was doing. Counsel suggested that if the judge was concerned the defendant had unfairly been deprived of an opportunity to answer specific questions, the defendant could be recalled; but his principal submission was that the defendant had given his account, and the jury could assess his sexual interest. Defence counsel had at one point referred to making a submission of no case to answer but did not in fact do so. It is nonetheless apparent from the transcript of proceedings as a whole that the judge approached the matter on the basis that he was considering a submission of no case to answer made at the conclusion of all the evidence.

Following the discussion between the judge and prosecution counsel, the judge said "So, those are your submissions. All right. Well, I'm against you." He indicated that he would give a ruling, and adjourned until the next day so that the prosecution could consider an appeal.

On the following day the prosecution gave notice of appeal. All necessary formalities were complied with and the "acquittal undertaking" required by Criminal Justice Act 2003 - section 58(8) was given. The judge gave his formal ruling in writing, later helpfully refined into a final form. The jury was discharged.

In his written ruling, the judge reiterated the view which he had expressed on the previous day that it would have been unfair to require the defendant to return to the witness box "to allow the prosecution to try to remedy a fundamental deficiency in their case".

Turning to the facts, the judge said that in his judgment the starting point was to consider the state of mind of Z. Having made some observations about that, he noted that the defendant had said in evidence that he had acceded to Z's request in order to ingratiate himself with Z, and had accepted that he had obtained some sexual gratification by masturbating. The defendant had however denied that he wanted his son to see what he was doing. The judge said the prosecution had therefore failed to establish an element of the offence. He concluded:

The prosecution seek leave to appeal on two grounds: first, that the judge's ruling involved an error of law or principle in the application by the judge of his jurisdiction to determine a submission of no case to answer at the conclusion of all the evidence; and secondly, that the ruling was one that it was not reasonable for the judge to have made in all the circumstances.

As to ground 1, Mr Jarvis KC accepts that in R v Brown (Davina) [2001] EWCA Crim 961 this court held that a judge has a power and a duty to withdraw a case from a jury at any time after the close of the prosecution case, whether or not a submission of no case to answer has been made, if the judge is satisfied that no jury properly directed could convict. The court added at [12] that the power should be very sparingly exercised.

Mr Jarvis submits that the power should not be exercised in such a way as to usurp the role of the jury by a judge making his or her own assessment of the credibility of the evidence of a defendant or of witnesses called on a defendant's behalf. Here, Mr Jarvis submits, it was for the jury, not the judge, to assess the credibility of the defendant's explanation for why he chose to masturbate in the presence of his young son.

As to ground 2, Mr Jarvis submits that in rejecting the submission that the jury could properly draw an inference that the defendant derived sexual gratification from the presence of his child, the judge reached a conclusion which it was not reasonable for him to reach. Mr Jarvis points out that the defendant was masturbating whilst sitting next to X. The defendant did not leave the room, or use a cushion, or anything else, to prevent X seeing what he was doing.

For the defendant, Mr Body submits that the judge's decision was clearly correct because the prosecution had adduced no evidence to prove an essential element of the offence and had not asked the defendant any questions about it. Although the judge made his ruling when all the evidence had been given, Mr Body makes the point that nothing in the defendant's evidence added anything to the prosecution's case on the essential element of the offence, which the prosecution had simply failed to address.

Mr Body further submits that the defendant has in any event pleaded guilty to count 2, which relates to the same activity and provides the court with appropriate sentencing powers. He suggests it would therefore not be in the public interest for this court to grant leave to appeal.

We are grateful to both counsel, whose submissions were admirably succinct and focused.

We begin by expressing sympathy for the judge, who did not receive the assistance from counsel to which he was entitled. We fully understand the pressure of work on counsel and judges in the Crown Court, and we are reluctant to criticise. But the law relating to the elements of the offence under section 11(1) of the Sexual Offences Act 2003 is not arcane, and it is very unsatisfactory that much of the trial was conducted on the basis of a communal misunderstanding of the law.

When that misunderstanding was appreciated, one course open to the judge was to discharge the jury and order a retrial. It is not clear to us whether that was ever considered. We think that is unfortunate. This was not a case of the prosecution trying to go behind a positive decision not to pursue a particular point; rather, it was a case of collective misunderstanding, and there was much to be said to the view that the fairest course was to discharge the jury and start again.

As R v Brown (Davina) confirms, a judge does have the power to withdraw a case from a jury at the conclusion of all the evidence, even if no submission of no case to answer was made at the conclusion of the prosecution case. However, we respectfully endorse and emphasise the view expressed by the court in that case, that the power should be very sparingly exercised.

Where a submission of no case to answer is made at the conclusion of the prosecution case, the familiar principles in R v Galbraith [1981] 1 WLR 1039 require the judge to leave the case to the jury where the strength or weakness of the prosecution evidence "depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury".

The same principle must apply where no such submission has been made, or one has been made but rejected, and the judge is considering, or again considering, the position at the end of all the evidence. It seems to us that there will be very few cases in which a judge can at that stage be satisfied that no reasonable jury could convict, without trespassing on the role of the jury in assessing the defence evidence. It seems to us that such cases are likely to be confined for the rare situation in which defence evidence has, in Mr Jarvis's phrase, delivered a knock-out blow to the prosecution case.

In the present case, the following matters are in our view important.

In the language of section 67 of the Criminal Justice Act 2003 and with all respect for the judge, we are satisfied that his ruling that count 1 be withdrawn from the jury involved an error of law or principle and was a ruling which it was not reasonable for him to have made. We are further satisfied that the defendant's guilty plea to count 2 is not a reason why count 1 cannot or should not be pursued.

For those reasons:

Having received helpful submissions from counsel, we have reached the following conclusion about the reporting restrictions under section 71 of the Criminal Justice Act 2003: