R v EGC

This is an application for leave to appeal against the applicant's conviction on two counts of sexual offending, which has been referred to the Full Court by the Registrar. Accordingly the complainants in this case are entitled to anonymity, pursuant to the Sexual Offences (Amendment) Act 1992 , and nothing must be included in any publication if it is likely to enable them to be identified.

An order has been made under section 4 of the Contempt of Court Act 1981 restricting reporting of this judgment until after the conclusion of any retrial. However, counsel confirmed that this judgment may be reported in anonymised form and we therefore refer to the applicant by the randomly chosen letters “EGC”.

The application arises out of the fact that at the time of the earliest offence the applicant was between 10 and 14 years old. This was at a time before the abolition of the rebuttable common law presumption that a child aged between 10 and 14 is not capable of committing a criminal offence, known in Latin as doli incapax . This presumption was abolished with effect from 30 th September 1998 by section 34 of the Crime and Disorder Act 1998 .

The applicant is EGC, who is now 38 years old. On 30 th July 2025, after a trial in the Crown Court at Norwich lasting 12 days, he was convicted of sexual assault (count 2) and indecent assault (count 3). He was acquitted of rape (count 1). There were three separate complainants (to whom we will refer as "C1", "C2" and "C3"). There were also two further counts of rape, not included in the trial, on which the prosecution offered no evidence and not guilty verdicts were recorded.

The facts

The earliest offence in time (count 3, the indecent assault) was in respect of the applicant's cousin, C3. C3 alleged that when she was about 10 years of age, during one of the last visits to England by the applicant’s family prior to their return home from Germany, where the applicant's father was stationed while serving in the Army, she, the applicant and a number of other children were at the home of the grandparents. C3 was in the spare bedroom looking for net curtains to use for dressing up. The applicant entered the bedroom and asked her if he could show his body parts. She said no, but then agreed. The applicant unfastened his trousers and removed his penis, pulling back his foreskin. The applicant told C3 to lie down, pulled her lower clothing down to her ankles, laid on top of her and thrust his penis towards her genitals, counting to 10 each time he did so. He then got up and left the bedroom. The applicant's defence was that this had never happened.

The sexual assault (count 2) was in respect of the applicant’s then sister-in-law, C2. C2 alleged that when she was between 15 and 17 years old, and both she and the applicant were living with her parents, the applicant returned home from work late one night having consumed a quantity of alcohol. At the time covered by the indictment, which was between 13 November 2011 and 1 September 2014, the applicant would have been between the ages of 23 and 26.

C2 alleged that the applicant engaged her in sexual conversation, which made her feel uncomfortable, and that he was continuing to drink alcohol. Eventually she got up to go upstairs to go to bed followed by the applicant. When she was on the third stair the applicant reached under her right arm and squeezed her breast. She pushed him off and continued upstairs into the bathroom and did not see him again until the following morning.

The period covered by count 3

The rebuttable presumption

The judge gave appropriate directions, which the applicant does not criticise, as to the need to consider each count separately and as to bad character and cross-admissibility. However, although she directed the jury that they had to be sure that the applicant did the act alleged on each count, she did not direct them that they had to be sure that he knew that what was alleged on count 3 was seriously wrong as distinct from mere naughtiness or childish mischief, and that in order to be satisfied about this there had to be clear positive evidence to that effect distinct from the doing of the act itself. The requirement for such a direction was stated in C (A Minor) v DPP [1996] 1 AC, 38D-F and has been affirmed more recently by this Court in R v DM [2016] EWCA Crim 674 , [2016] WLR 146 and other cases.

"When you consider whether the unlawful touching and the circumstances accompanying the touching are capable of being considered by right-minded people as so offensive to contemporary standards of modesty and privacy as to be indecent and when you consider whether the defendant intended to touch in such a way, you must bear in mind all the circumstances including in particular the age of the defendant. He is approximately 15 months older than [C3]. If she was 10 years old, he would have been either 11 or 12. If the incident occurred during the summer holidays whilst she was 10, then the defendant would have been 11 years old.

The impact on count 2

However, the applicant goes further and submits that the failure to give the necessary direction on count 3 also renders the conviction on count 2 unsafe. The submission is that the jury may have considered count 3, which was first in time (even though last on the indictment) before considering count 2 and that having convicted the applicant on count 3, without proper directions as to the applicant's state of mind, they may have treated the erroneous conviction on count 3 as providing support for a conviction on count 2. In support of this submission Ms Tucker, for the applicant, submits that this was a real risk, not only because count 3 was the earliest offence in time, so that the jury may have considered it first, but also because of the sequence in which the verdicts were delivered. In fact, the verdicts on counts 2 and 3 were delivered together at the end of one day, while the not guilty verdict on the rape offence (count 1) was delivered on the following day.

"This is because if, as an adult, he has always had that sexual interest and a tendency to touch them sexually, it makes it more likely that he behaved as [C2] alleged."

Disposal

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