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[2026] EWCA Crim 451 IN THE COURT OF APPEAL CRIMINAL DIVISION ON APPEAL FROM THE CROWN COURT AT NEWCASTLE UPON TYNE (HHJ GAVIN DOIG) [T20220134] CASE NO 202500859/B3 |
Royal Courts of Justice
Strand
London
WC2A 2LL
Before:
LORD JUSTICE STUART-SMITH
MRS JUSTICE O’FARRELL
COMMON SERJEANT OF LONDON
(HIS HONOUR JUDGE MARKS KC)
(Sitting as a Judge of the CACD)
REX
V
NJT
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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground, 46 Chancery Lane, London WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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MR G GATLAND appeared on behalf of the Appellant.
DR C WOOD appeared on behalf of the Crown.
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JUDGMENT
The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. Under those provisions, where an allegation has been made that a sexual offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the victim of that offence. This prohibition applies unless waived or lifted in accordance with s.3 of the Act.
MRS JUSTICE O'FARRELL:
On 10 February 2025 at the Newcastle-upon-Tyne Crown Court before HHJ Doig, the appellant was convicted on one count of engaging in sexual activity in the presence of a child, contrary to section 11(1) of the Sexual Offences Act 2003 (count 3). He was acquitted of counts 1 and 2.
On 7 April 2025 the appellant (then aged 62) was sentenced on count 3 to a community order for 18 months with an unpaid work requirement of 150 hours and a rehabilitation activity requirement of up to 40 days. A restraining order was made until further order.
The appellant appeals against his conviction on count 3 by leave of the Single Judge.
The material background facts are as follows.
The appellant and his co-accused, who was acquitted, were in a relationship between 2009 and 2014. The co-accused's child ("the complainant") was born on 25 November 2004 and was around 6 years old when he first met the appellant.
On 8 October 2020, the complainant made disclosures to professionals regarding alleged offending by the appellant between 25 November 2011 and 31 January 2014, when the complainant was under 13 years of age.
Count 3 was said to have happened when the complainant was about 7 or 8 years old.
The background to the count was somewhat unusual. The appellant had worked at HMRC in Newcastle for many years. In 2007 for ‘Red Nose Day’ the appellant and three colleagues had performed ‘the Full Monty’ striptease in front of over a thousand HMRC colleagues at their headquarters in Newcastle. The event had been video recorded and put on to YouTube. It was also recorded by the BBC news and played on the 6.00 pm news broadcast.
The complainant was aware from YouTube that the appellant had performed ‘the Full Monty’ as he apparently had looked at YouTube to see if he could spot his mother in the large audience.
The prosecution case was that the complainant was on the bed and the appellant and the co-accused were also present in the bedroom. The co-accused was wearing a dressing gown and pretended to do a striptease as a joke. She then gave her dressing gown to the appellant, who was only wearing boxer shorts at the time. The appellant then began to perform a Full Monty striptease in front of the complainant. Having put on the dressing gown, he removed his underwear and showed the complainant his penis.
The co-accused's evidence was that the appellant had been asked by the complainant to show them some moves, the appellant had done so but any showing of his penis was unintentional as he had just twanged his shorts open.
The appellant's defence was that he had no recollection of doing the Full Monty routine in front of the complainant. However, he accepted the evidence of his co-accused that it must have happened. He denied stripping off in order to show the complainant his genitals. If he did perform any part of the Full Monty in front of the complainant it was not for sexual gratification.
The issue for the jury in respect of each count was whether the incident happened; if so, whether the appellant's actions were intentional, whether they amounted to sexual activity in the presence of the complainant and whether they were for the purpose of obtaining sexual gratification.
Written Legal Directions
The written legal directions were the subject of discussion with counsel having regard to the decision of the Court of Appeal in R v B [2018] EWCA Crim 1439, that in a prosecution under section 11(1) of the Sexual Offences Act 2003, it is necessary for the prosecution to prove, as one of the elements of the offence, that the defendant engaged in the sexual activity in the presence or under the observation of a child in order to gain some sexual gratification from that presence or observation.
The relevant parts of the agreed written legal directions include as follows:
The prosecution must make you sure of all of the elements of the offence. So in respect of the [defendant] whom you are considering and the offence you are considering the prosecution must make you that the [defendant] concerned:
Intentionally engaged in sexual activity
In the presence of [the complainant]
For the purpose of obtaining sexual gratification
At the time the Defendant was over 18
At the time [the complainant] was under 16
The Defendant did not reasonably believe [the complainant] was aged 16 or over."
It was common ground that (d), (e) and (f) were not in issue but that (a), (b) and (c) were very much in issue.
The judge explained the issues for determination by the jury including:
In respect of each allegation, you must first determine what you are sure happened.
If they did, there is no doubt that the actions of [the appellant] in respect of count 3 were intentional.
If you are sure the event happened the next decision is whether what happened amounts to sexual activity.
An act is a sexual act if a reasonable person would consider that (a) whatever its circumstances, or any person’s purpose in relation to it, the act is, because of its nature, sexual.
Or (b) because of its nature the act may be sexual and because of its circumstances or the purpose of any person in relationship to it or both, it is sexual.
And (v) The prosecution must also prove so that you are sure, that the actions of the defendant you are considering were for the purpose of obtaining sexual gratification."
Specifically in relation to count 3, the judge gave the following directions:
If CG did strip off his clothing and in so doing show his penis to TM, the prosecution must prove that part of his purpose, or one of his purposes, was sexual gratification obtained from the presence of TM.
But IF – and that is the key word – IF you are sure the event subject of Count 1 occurred, you may conclude that a person deliberately playing with or touching their penis in the presence of a child for 10 or 20 seconds is at least partly doing so for the purpose of sexual gratification obtained from the presence of that child.
Similarly IF the striptease occurred and CG thereby showed TM, a young child at the time, his penis, you may conclude that the purpose of acting in this way was at least partly for the purpose of sexual gratification obtained from TM’s presence.
The intended sexual gratification does not have to be obtained at the moment the D you are considering acted as alleged. The purpose may involve either immediate or deferred gratification (or both).
It is for you to decide if you are sure that the actions of the Ds were at least partly for the purpose of obtaining sexual gratification, or for some other reason.
You must answer that question separately for each count and for each D. Unless you are sure that at least part of the purpose of the D for acting as he/she did was for the purpose of obtaining sexual gratification from the presence of TM, the D concerned must be acquitted of that count."
The written Route to Verdict identified the following questions in respect of count 3:
"Question 1:
Are we sure that [the appellant] intentionally engaged in sexual activity as alleged in this count?
Question 2:
Are we sure that [the appellant] did this in the presence of [the complainant]?
Question 3:
Are we sure that [the appellant’s] purpose, or one of his purposes, in so doing was to obtain some sexual gratification from [the complainant's] presence?"
There was no issue for the jury in respect of question 4.
In his summing-up, orally, the judge clarified these issues. He stated:
"In respect of each allegation, you must first determine what you are sure happened.
…
But let’s assume for a moment you’ve all concluded that these events occurred, now what are the other elements of the offence that have to be proved? Firstly, it has to have been an intentional action on behalf of the Defendant."
…
"Next, sexual activity. If you’re sure the event happened, the next decision is whether, whether what happened amounts to sexual activity.
Once you’ve decided what he did, ask yourselves, are we sure a reasonable person would conclude his actions were, because of their nature, sexual."
…
"Next, the Prosecution must prove that the activity was for the purpose of obtaining sexual gratification..."
In relation to count 3:
"... if the strip tease occurred, [the appellant] thereby showed [the complainant], a young child at the time, his penis, you may conclude that the purpose of acting in this way was at least partly for the purpose of sexual gratification from [the complainant's]’s presence."
…
"The purpose may involve either immediate or deferred, that is future sexual gratification, or indeed both.
…
"Unless you’re sure that at least part of the purpose of the Defendant for acting as he or she did was for the purpose of obtaining sexual gratification from the presence of [the complainant], that Defendant must be acquitted of that count."
Grounds of appeal
The ground of appeal for which leave has been granted is that the judge's directions to the jury on count 3 were wrong. The direction may have led to the jury to consider that the conclusion that the conduct was for the purpose of sexual gratification, followed as a matter of course from a conclusion that it was sexual in nature.
Mr Gatland, the appellant's counsel, submits that the judge in his summing-up directed the jury that if the striptease occurred and the appellant thereby showed the complainant, a young child at the time, his penis, you may conclude that the purpose of acting in this way was at least partly for the purpose of sexual gratification from his presence.
It is submitted on behalf of the appellant that this direction was wrong. Even if a person carries out a sexual act, one cannot conclude that it is at least probably for the purpose of sexual gratification. If the appellant's penis was exposed (and he has no recollection of the event), it was, at most, a fleeting glimpse and neither the co-accused nor the complainant suggested it was erect. It is therefore submitted that even if it is accepted that this amounted to a sexual act, it was wrong to direct the jury that they could conclude from that fact that it was partly for the purpose of obtaining sexual gratification. There is the requirement under section 11 that the sexual act was done for sexual gratification and in this case there was no evidence of sexual gratification from the presence of a child.
Discussion and conclusion
The judge's written directions set out a very clear statement of the elements of the offence on which the jury had to be sure in order to convict. The elements of (a) sexual activity and (b) purpose for obtaining sexual gratification were identified as distinct elements that had to be considered separately by the jury.
We accept that the phrasing of paragraph 71 in the written directions could have been more helpfully formulated but it was agreed, and in the context of the other clear directions, it is not arguable that the jury could have been misled. The Route to Verdict made it clear beyond doubt that the jury should not conflate questions 1, 2 and 3 in the Route to Verdict. In particular the judge emphasised in his oral summing-up that unless the jury were sure that the purpose of the appellant's actions were for the purpose of obtaining sexual gratification from the presence of the complainant, they must acquit.
For those reasons, we do not consider that the conviction was unsafe.
Accordingly the appeal is dismissed.
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