Sexual Offences Act 2003, Section 11 (1) (c) – Sexual activity in the presence of a child
Case of R v B and L:  1 Cr. App. R. 35;  EWCA Crim 1439;  6 WLUK 820
Download full case here: 498 R v B and L.
Brent Martin achieved a landmark result in a case before the Court of Appeal in June 2018 that can only now be reported due to an earlier embargo by the Court. The case concerned the interpretation of section 11 (1) (c) of the Sexual Offences Act 2003.
The appellant male and female partners (B and L) appealed against their convictions for engaging in sexual activity in the presence of a child, contrary to the Sexual Offences Act 2003 s.11(1). B’s computer had been seized by the police. An undated video was recovered which showed B changing in and out of women’s clothing in a living room. He was naked at times and L could be heard encouraging him. Their child could be heard in the background and, on more than one occasion, was within the camera shot. The prosecution case was that the appellants were, for the purpose of obtaining sexual gratification, intentionally engaging in sexual activity in the presence of the child, and that they had known or believed that the child was aware that they were engaging in such activity. The appellants denied that the child’s presence was intentional and that they had engaged in sexual activity in her presence for sexual gratification. Their submission of no case to answer at the close of the prosecution case was rejected. The judge ruled, and directed the jury, that there did not have to be a proven link between the presence of the child and the sexual gratification.
The issue on appeal was whether the person engaging in sexual activity had the necessary purpose of obtaining sexual gratification by simply engaging in sexual activity in the knowledge or belief that a child was present or observing and aware of the activity, or whether the sexual gratification had, at least in part, to be obtained from the knowledge or belief that the sexual activity was being carried out in the presence of, or under the observation of, a child.
The issue had never come before the Court of Appeal for consideration on this specific point, and Brent’s detailed and comprehensive submissions, including meticulous research on speeches recorded in Hansard during the passage of the bill, were instrumental in persuading the Court to accept the interpretation advanced. Much of his written submissions were quoted in the judgement adopted by the Court.
The Court held:
The prosecution had to prove a number of elements to the offence, as set out in s.11(1)(a) to (d). One of those elements was, in s.11(1)(c), that the sexual activity had to be “for the purpose of obtaining sexual gratification”. That phrase was not superfluous. It did not stand alone, as a separate element. The phrase not only introduced, but qualified, the elements of the offence identified in s.11(1)(c). It followed that the prosecution had to prove a link between “for the purpose of obtaining sexual gratification” and the presence of, or observation by, a child.
The convictions were quashed and the Court certified a point of general public importance for consideration by the Supreme Court.