‘Sexual Gratification’ and the Presence of a Child: R v B & L [2018] EWCA Crim 1439;[2019] 1 WLR 3177

Abstract

Keywords

Sexual gratification presence of child link between gratification and presence Sexual Offences Act 2003 s 11

The Appellants B (male) and L (female) were in a relationship with two children of the family: the elder child, CL, who was the daughter of L from a previous relationship and the younger, CB, who was the daughter of both Appellants. In 2014, CL made an allegation of sexual assault against B (for which he was later convicted and sentenced). As part of the investigation, B’s computer was seized and examined. Police found deleted thumbnail images on the computer that formed part of a video. The video was recovered in part along with an audio track.

The video showed B changing in and out of women’s clothes with his genitals exposed and L encouraging him in these activities. In the background a child, accepted to be CB, was heard making noises and at times walking into the camera shot. L was heard to say that she was ‘getting in the way’. The age of CB could not be determined as the video was undated; however, it was suggested that she could have been as young as 1½ years and as old as 4 years (this was an issue at trial). In interview, the Appellants stated that they would both dress up as part of their sexual relationship but denied that any presence of CB in the video was for their sexual gratification. Both Appellants were charged with engaging in sexual activity in the presence of a child contrary to Sexual Offences Act 2003, s 11.

An application was made pre-trial by both Appellants for the charge to be dismissed. This application was rejected on the basis that there was evidence upon which a jury could conclude that they had engaged in the sexual activity knowing or believing CB was present so as to add to their sexual gratification. At trial, the Appellants made a half-time submission of no case to answer. The trial judge rejected the submission and ruled that the elements of the offence (which he subsequently repeated to the jury) were that: (1) they must have intentionally engaged in sexual activity for the purpose of obtaining sexual gratification; (2) that they did so in the presence of CB; (3) that they knew or believed that CB was aware of the sexual activity; and (4) the Crown did not have to prove that CB was aware that the activity that was taking place was sexual. The trial judge therefore gave a ruling in which he stated that the Crown did not have to be prove a link between the presence of the child and the sexual gratification.

As a result of the ruling, L pleaded guilty however B pleaded not guilty and was convicted by a jury. L received a community order and B received a sentence of 6 months’ imprisonment; both were made subject to a Sexual Harm Prevention Order.

The Appellants sought permission to appeal against conviction. The Registrar referred both applications to the Full Court, which granted permission. The Appellants submitted that the ruling given by the trial judge was erroneous in law (at [12]).

Section 11(1) provides that:

A person aged 18 or over (A) commits an offence if—(a) he intentionally engages in an activity, (b) the activity is sexual, (c) for the purpose of obtaining sexual gratification, he engages in it—(i) when another person (B) is present or is in a place from which A can be observed, and (ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and (d) either—(i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13.

Held, in allowing the appeals and quashing the convictions, that on a true construction of Sexual Offences Act 2003, s 11(1), the sexual gratification referred to had to be linked to the presence or observation of the child, therefore it was an essential element for the Crown to establish (at [25]).

Commentary

The issue in this case was not whether the Appellants were committing an offence by simply engaging in sexual activity in the presence of a child but, rather, whether sexual gratification could be evidenced by the mere fact that the Appellants engaged in sexual activity in the presence of a child.

For the purposes of s 11 (and 13 other provisions of the 2003 Act: ss 12, 14, 15A, 18, 19, 32, 33, 36, 37, 40, 41, 67 and 73) that the activity was done for the purposes of ‘sexual gratification’ is a key to obtaining a conviction. For example, one could draw a comparison with the offence of voyeurism under s 67 of the 2003 Act. Section 67(1) provides that:

A person commits an offence if—(a) for the purposes of obtaining sexual gratification, he observes another person doing a private act, and (b) he knows that the other person does not consent to being observed for his sexual gratification.

If the sexual gratification element was removed from s 67 then a person would commit an offence if they observed another person doing a private act and the other person did not consent to being observed. Such an offence would be extremely wide and could cover private acts such sexual intercourse as well as simply being observed doing something one wished to do unobserved, even if it were everyday or mundane.

Not all activity engaged in in the presence of another is done for the purposes of obtaining sexual gratification (at [16]) and there is a distinction between doing an act which gives sexual gratification and doing an act for the purposes of sexual gratification (at [17]). The case for the Appellants was that they were obtaining sexual gratification from the activity they were engaged in and not due to the presence of the child. Indeed, if the child had not been present at all, the Appellants would have still obtained the same sexual gratification. Let us assume, then, the factual scenario in this case but remove entirely CL and CB, the Appellants would still have obtained sexual gratification from the activity as the gratification was obtained from the activity and not by the activity. Now let us assume a factual scenario under s 67 of the 2003 Act: a person installs a camera in a disabled toilet in a John Lewis store (R v Henderson [2006] EWCA Crim 198). The purpose seems to have been to obtain sexual gratification from observing others using the facility. However, if no-one had used the disabled toilet, no sexual gratification would have been obtained: sexual gratification was dependent on the presence of another person. The key question therefore is: If the other person had not been present, would sexual gratification still have been obtained? If the answer is ‘yes’, then sexual gratification is not linked to the presence of another (or child). If the answer is ‘no’, then sexual gratification is linked to the presence of another (or child). This question is not however a legal one for the judge but rather a factual one for the jury.

The question of whether there was a need for a qualification of ‘sexual gratification’ was debated during the passage of the Sexual Offences Bill 2003. For example, Dominic Grieve MP enquired in the Standing Committee whether there was any purpose at all for the qualification in the context of clause 20 (now s 18 of the 2003 Act) (col 211). Paul Goggins MP, the Home Office Minister, emphasised (at col 212) however that the qualification was need as:

We want to capture an offence in which the fact that children are present and watching the sexual activity gives rise to the offender’s sexual gratification. We do not want to cover any other sexual activity that may be going on.

This was the point subsequently emphasised in the guidance issued by the Home Office on the 2003 Act (Home Office Circular 21/2004, para 62). From the judgment of the Court of Appeal, then, the acts of the Appellants was something that was simply ‘going on’ rather than activity which gave ‘rise to the offender’s sexual gratification’. The need for sexual gratification is not superfluous to the offence, but an essential element (at [25]).

Mr Goggins also suggested that the more outrageous the act the more likely it was done for the purposes of obtaining sexual gratification (col 213). Again, this could be a question for jury based upon their common knowledge of what could be considered ‘outrageous’, but it does not necessarily follow that the more outrageous the activity the more it was done for sexual gratification. Indeed, to equate outrageousness with gratification raises additional questions which may distract a jury from the real focus. For example, if a couple engaged in sexual activity in the middle of Trafalgar Square, it would be difficult to believe that their activity was done for anything other than to obtain sexual gratification from being outrageous and having sexual intercourse in public (leaving aside for the moment that such activity would be more appropriately charged as outraging public decency). But when the said activity takes place in a private residence, then a question of outrage is clearly shown as a distraction to the key question.

This case also sought to resolve an academic debate on the correct interpretation of s 11 (at [24]) even though the point had previously been considered in an appeal against sentence: R v W [2005] EWCA Crim 2448 [4]. The editors of Archbold favoured an interpretation given by the Crown i.e. that the offence was linked to the prevention of children being exposed to sexual activity (and thereby sexual harm) (at [22] and [28]), whereas the editors of Blackstone’s Criminal Practice and Rook & Ward, Sexual Offences Law and Practice (5th ed) favoured an interpretation given by the Appellants. The interpretation of Rook & Ward (at 4.117) was that:

A must also engage in the activity for the purpose of obtaining sexual gratification. It is not sufficient that A engages in it, for example, in order to shock B or simply by way of attention-seeking. A’s purpose must be to obtain sexual gratification from B’s presence or from being observed by B, rather than from the sexual activity itself.

When one considers this interpretation of the sexual gratification requirement, it is difficult to imagine that there was in fact any disagreement at all.

It seems that the Court of Appeal was aware of the possible evidential difficulties i.e. of that of the Crown to establish sexual gratification and of a defendant establishing a lack of such. The Court of Appeal therefore eased the sexual gratification qualification by stating that only ‘some’ sexual gratification from another’s presence is required (at [29]). In this case, there was no evidence of any sexual gratification obtained by the Appellants (for example, the reference to CB ‘getting in the way’ (at [4])) but it would seem that any evidence of sexual gratification, however brief or momentary, will be sufficient to establish the offence. Indeed, the Court of Appeal said nothing which could interfere with the conclusion of Sir Igor Judge P that sexual gratification can be both short or long term and immediate or deferred (R v Abdullahi [2006] EWCA Crim 2060; [2007] 1 WLR 225 [17]). In his comment on Abdullahi, Prof. David Ormerod suggested that proving an immediate purpose of sexual gratification would be difficult at the best of times and that establishing it under s 11 would be even more difficult ([2007] Criminal Law Review 184, 186). I echo these conclusions. If immediate sexual gratification is difficult to establish, then it may be that deferred sexual gratification may be impossible to evidence, indeed one may ask whether deferred sexual gratification is even possible: Can one obtain sexual gratification from activity which was not immediately sexually gratifying?

Despite its conclusions, the Court of Appeal agreed to the Crown’s request to certify a point of law of general public importance for the Supreme Court (at [34]–[35]). Despite this, the Crown appeared not to have made any application to the Supreme Court.

Andrew Beetham