Grout, R v [2011] EWCA Crim 299

Case No 201001237 C1

[2011] EWCA Crim 299

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM KINGSTON CROWN COURT

HIS HONOUR JUDGE LEONARD Q.C.

T20090945

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01/03/2011

Before

LORD JUSTICE AIKENS

MR JUSTICE IRWIN

HIS HONOUR JUDGE ROBERTS Q.C.

Between

RRespondent

PHILLIP GROUTAppellant

(Transcript of the Handed Down Judgment of

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Ms Alison Morgan for Appellant

Mr Guy Ladenburg for Crown

Hearing Hearing date: 11 February 2011

Judgment

[1]On 5 February 2010, following a trial before HHJ Leonard QC and a jury in the Crown Court at Kingston, the appellant, who is now aged 21, was convicted of “intentionally causing or inciting a child under 13 to engage in sexual activity”, contrary to section 8(1) of the Sexual Offences Act 2003 (“the SOA”). The jury acquitted the appellant of a second count under the same section and the judge withdrew from the jury a third count also alleging an offence under the same section but involving a different complainant. The judge sentenced the appellant to a Community Sentence with a requirement that he carry out 40 hours of unpaid work.

[2]On 11 February 2011 we heard submissions on Mr Grout’s appeal against conviction. At the end of the hearing we announced that the appeal would be allowed and the conviction quashed. We said we would give our reasons in writing, which we now do in this judgment of the court.

The facts which led to the charges

[3]The appellant and the complainant, whom we will call H, were both members of a local church group known. At the relevant time, December 2008 – January 2009, the appellant was 18 and at university. H was then 12. The appellant was a helper with the church group which consisted of children between the ages of 12 and 16. The two became friendly and they had one another’s mobile phone numbers and e-mail addresses. During December 2008 to early January 2009 the appellant was living at home during the university vacation. The two sent text and MSN messages to one another. The appellant’s computer had a webcam facility and the complainant was able to use her elder sister’s computer with a similar facility. They would send MSN messages to one another and at the same time could see one another via the webcam.

[4]The series of text messaging, MSN chats and webcam communications that led to the exchanges which were the foundation of counts 1 and 2 began around 5 January 2009. It was difficult to reconstruct the text and MSN conversations because the appellant deleted all the texts relating to H from his mobile phone at some stage. Furthermore, on 27 January 2009, the day before the appellant’s arrest, the appellant re-formatted his computer, so that his computer contained no MSN history of any kind before that date. However, an examination of H’s mobile phone showed that although some texts had been deleted, not all of them had been and a schedule of the surviving texts was compiled. H’s MSN account was also examined and a schedule of those MSN texts between the appellant and H during January 2009 was also prepared. Both were put in evidence before the jury.

[5]At the trial the complainant’s evidence in chief was based on an ABE interview in which she talked about the MSN messages and the texts between her and the appellant and what they meant. The messages were generally of a jokey character. However, it was the prosecution case that on occasions between 7 - 11 January 2009, the tone of the texts changed significantly. At one stage the appellant asked H to ask him “a more sexual question”. The complainant said that was not right. The appellant then asked her the question: “would you go in a room with me naked” which was the subject of count 2. She said that she was scared of that question and did not answer it.

[6]The complainant’s evidence at the trial was that there were then further questions and answers. The first relevant one for the purposes of this appeal is where the appellant asked H to show him her bra.

The judge said this about it in his summing up, at page 13 C-E:

“She [said] she got scared and just did it. She pulled the strap out of the top. He said “Nice. Would you take any more off”

And she said no. She said in answer to Ms Morgan (counsel for the appellant) that she didn’t think that this was serious and she didn’t think anything was going to happen. To her it just seemed strange and uncomfortable because an adult was asking her to do these things. She said she felt silly replying”.

[7]In short, the evidence of H, which was not contested by the appellant, was that H had shown her bra strap by pulling back the corner of the neck of her jumper so that it was visible to the appellant on his computer screen via the webcam link. In relation to this particular exchange the evidence of the appellant was that he did not mean it to be construed in a sexual way. He accepted that it might have been something that H was embarrassed about and that it was very silly and stupid. But he denied he got any sexual gratification from it and he said that it was a joke amongst friends.

[8]In his summing up the judge referred to MSNs that indicated that the two had talked about the appellant taking clothes off on the webcam. The judge did not refer in his summing up to any evidence about messages asking H whether she would take clothing off.

[9]At some stage on the same day that the exchange about the bra took place, but it is not clear when in the whole sequence of text and MSN messages, there was a further exchange of text messages which were found on H’s mobile phone. One text from the appellant was “what happens to a guy’s thing when he gets excited” and she replied that she did not know and the appellant sent a text back saying “LOL”, meaning “lots of love” or “lots of laughs”. He also wrote “Durex”. In evidence in court H said that she found it weird that an adult should send her this stuff and it made her feel uncomfortable and sick and horrible. She agreed with the suggestion that it was scary for a 19 year old to send her sexual questions when she was only 12 and she was scared of her mum finding out.

[10]At the trial H’s sister gave evidence that on 12 January 2010 she had borrowed H’s phone and that she had seen a text message on it which was from the appellant and read:

“Do you know what happens to a boy’s willy if he gets excited”

. She also said that she saw two other separate messages, which were from the appellant, which read:

“What do you call your upper bits and your lower bits” followed by “do you call them your boobs and your fanny”

. It was at that point that the sister called to her mother and showed her the text messages. Subsequently the police became involved.

[11]The appellant was interviewed on 28 January 2009. On the advice of his solicitor he declined to answer questions. His computer was seized but because it had been re-formatted no relevant information could be retrieved from it.

The Indictment and the relevant provisions of the Sexual Offences Act 2003

[12]Count 1 of the Indictment stated:

“Statement of offence Causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003. Particulars of offence PHILIP GROUT between the 1st day of December 2008 and the 14th day of January 2009 intentionally caused or incited [H] a child under the age of 13, namely 12 years, to engage in sexual activity, namely taking part in a WEBCAM conversation when you asked [H] to show you her bra and asked her if she would take off clothing.”

Particulars of offence

[13]Sections 8(1) to (3) of the Sexual Offences Act 2003 provide: “8. Causing or inciting a child under 13 to engage in sexual activity (1). A person commits an offence if—(a) he intentionally causes or incites another person

(b) (B) to engage in an activity, (b) the activity is sexual, and

(c) B is under 13. (2). A person guilty of an offence under this section, if the activity caused or incited involved— (a) penetration of B’s anus or vagina, (b) penetration of B’s mouth with a person’s penis, (c) penetration of a person’s anus or vagina with a part of B’s body or by B with anything else, or

(d) penetration of a person’s mouth with B’s penis, is liable, on conviction on indictment, to imprisonment for life. (3). Unless subsection (2) applies, a person guilty of an offence under this section is liable— (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years”.

[14]Section 78 of the SOA sets out a definition of “sexual” for the purposes of section 8 of the Act as well as other provisions. It provides: “78 “Sexual” For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that—(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”. For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that— (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual”.

[15]It will be noted that there is no definition of “activity” in the SOA.

The Trial

[16]At the start of the trial the defence made a submission that all three counts on the Indictment should be withdrawn from the jury because the facts set out in the particulars of offence could not amount to offences under section 8(1) of the Sexual Offences Act 2003. The judge ruled that count 3 should not go further. However, he said that he would review the position of the other two counts at the end of the prosecution evidence.

[17]At the end of the prosecution case the defence submitted that there was no case to answer on both counts one and two. The judge rejected that submission. In relation to count 1 he held that, a jury could, when properly directed, conclude that the activity referred to in the particulars of offence amounted to “sexual activity”. In relation to count 2 he held that the evidence was not so weak that a jury could not safely convict. The trial continued and the appellant gave evidence.

[18]When the judge summed up the case to the jury he gave them written directions on the law, which he called “steps to verdict”. He went through those directions orally with the jury. In relation to the “ingredients of offence” charged in counts 1 of the Indictment, the judge directed as follows (pages 3F to 7C): “Count 1. Before you can convict the Defendant of Count 1 on the Indictment, the prosecution must make you sure that:(a) [H] was 12 years old at the relevant time. You have her birth certificate and this is not in dispute.

(b) Phillip Grout intentionally caused or intentionally incited [H] to engage in an activity. Incitement includes making a suggestion to someone, proposing something to someone, persuading someone to do something, and inducing someone to do something. Activity should be given its ordinary meaning. The conduct which you can consider is as follows: (i) The MSN messaging itself during which it is alleged Phillip Grout asked [H] to show him her bra, and asked her if she would take any more clothes off; and/or (ii) inciting her to show him her bra; and/or (iii) the showing of the bra strap itself; and/or (iv) inciting her to take off clothing. You must be sure that any of (i) – (iv) above took place before considering whether Phillip Grout intentionally caused or intentionally incited [H] to engage in an activity.

(c) This is the next element that the prosecution have to prove. That the activity was sexual. An activity is sexual if, whatever the circumstances or any purpose in relation to it, it is because of its nature sexual. If you are sure that the activity which you are considering can be regarded as sexual because of its nature, then that element of the offence is proved. If you are not sure that the activity you are considering is sexual as defined above, then you should go on to consider whether it is sexual because; (i) looking at the activity in isolation a reasonable person would consider because of its nature the activity which took place could be sexual. If you are not sure that it was then this element of the offence would not have been proved, If you are sure that it was then you must go on and consider (ii) – so this is the second half of this alternative way of looking at the meaning of sexual; (ii) whether a reasonable person in view of the circumstances and/or purpose of Phillip Grout in relation to the activity, the activity was in fact sexual. When considering this you may take into account the background against which this activity took place. “If the prosecution has made you sure of both (i) and (ii) then this element of the offence will have been proved. So just to go back to make it clear in your understanding, (c) – if you go back to page one – is a further element of the offence that the activity was sexual. And there are two ways that would be open to you to come to that conclusion. The first way is included within the body of paragraph (c). But if you don’t find that the prosecution have proved that it is sexual following my direction there, you can then go on to look at it a second way in which it can be considered to be sexual. And that would require you to look at (i) and (ii) and be sure that both parts of that, (i) and (ii) had been proved. Now, I continue. Paragraph 2 – please read paragraphs 6 to 8 below which are relevant to both counts on the Indictment. So let’s go to paragraph 6. 6. If you find that [H] was consenting to the sexual activity because of her age, that provides no defence to Phillip Grout. 7. If you think what is alleged may have been no more than a hypothetical question posed by him, then the prosecution will have failed to prove that he was intentionally inciting [H] to act in this way. If, on the other hand, you are sure that this was a suggestion or proposal that she did it, or that he was persuading her or inducing her to do it, then elements 1 and 2 of the offence will have been proved., To decide what he meant by the words which you are considering, you should consider the context in which they were set… And then 8 – it is the Defendant’s case that in respect of those things which he accepts were transmitted by text or MSN messaging between them that it was done in a jokey way or as part of a truth and dare game, and that [H] was responding accordingly. And he had not intended it to be taken seriously. If you think that was or may have been what happened, the prosecution will have failed to prove that he intended there to be sexual activity. So that’s count 1.” (i) The MSN messaging itself during which it is alleged Phillip Grout asked [H] to show him her bra, and asked her if she would take any more clothes off; and/or (ii) inciting her to show him her bra; and/or (iii) the showing of the bra strap itself; and/or (iv) inciting her to take off clothing. (i) looking at the activity in isolation a reasonable person would consider because of its nature the activity which took place could be sexual. If you are not sure that it was then this element of the offence would not have been proved, If you are sure that it was then you must go on and consider (ii) – so this is the second half of this alternative way of looking at the meaning of sexual; (ii) whether a reasonable person in view of the circumstances and/or purpose of Phillip Grout in relation to the activity, the activity was in fact sexual. When considering this you may take into account the background against which this activity took place.

The judge then went on to give directions on count 2 and to review the evidence.

[20]After the jury had retired, they sent two questions to the judge. Only the second one is relevant to this appeal. It stated:

“we are split on point 1(c)(ii). [That is a reference to that paragraph in the written directions]. Specifically was the act of asking H to show Mr Grout her bra, was that a sexual activity”

. The jury also asked the judge to clarify the phrase “beyond reasonable doubt” in that context.

[21]Following a discussion with counsel, the judge gave a further direction to the jury. This stated (at 32F -33A):

“I think you’ve been asked to bring down your Steps to Verdict document so that you can follow this through to me. With me. The first thing I’m going to point out in respect of paragraph 1 (b), which sets out the four circumstances that you, or the four bits of conduct, which you can consider in relation to whether it’s an activity. And just to remind you that you do not have to be sure on all four of those. Any one of those will do, so long as at least ten of you are agreed upon it. Secondly, your question goes directly to the way in which I have set out in 1(c) how you reach your conclusion as to whether the activity was sexual. …..”

[22]The judge then repeated to the jury the directions he had given on the meaning of “sexual”, which we have already set out above. The judge then continued (at 33E-33F):

“That brings me to the heart of your question, “whether a reasonable person in view of the circumstances and/or purpose of Phillip Grout in relation to the activity, the activity “was in fact sexual.”

When considering this you may take into account the background against which this activity took place. If the prosecution have made you sure of both (i) and (ii) then this element of the offence will have been proved.” So again, I underline, you’ve got to be sure in relation to (i) and (ii) if you’re going down the second route as to whether the activity was sexual”.

[23]The judge gave a further direction on the standard of proof and the jury then continued their deliberations. As already recounted, the jury convicted only on count 1 and did so by a majority of 10 to 2.

The grounds of appeal

[24]Four grounds of appeal were advanced. The single judge gave leave on the first three. They are: i) The trial judge incorrectly ruled that the words used by the appellant could amount to “sexual activity”; ii) The trial judge incorrectly ruled that any of the suggested activity in this case could amount to “sexual activity”; iii) The trial judge incorrectly directed the jury as to the meaning of “activity” for the purposes of section 8(1) of the SOA.

[25]The fourth proposed ground was that the judge had incorrectly directed the jury as to the meaning of “sexual” for the purposes of section 8 and 78 of the SOA. Before us Mr Ladenburg for the Crown points out that the single judge did not expressly give leave on that ground. There was no specific renewed application for leave in relation to this ground was made. However, we have concluded that, given the way the judge directed the jury, we will have to deal with his directions on both “activity” and “sexual”.

Analysis: general

[26]Before we deal with the grounds of appeal, we make some general points. First, R v Walker (Simon John)

[2006] EWCA Crim 1907

, para 30 stated that section 8(1) of the SOA creates two basic offences. In the first case a defendant must intentionally cause a child (B) to engage in “sexual activity”. In the second a defendant must intentionally incite a child (B) to engage in “sexual activity”. In the latter case the essence of the offence is the intentional “incitement”, that is the intentional seeking to bring about something by encouragement or persuasion, by the defendant. The “something” in this case is that the child (B) engage in sexual activity. The causing or inciting must be intentional, ie. deliberate; recklessness or less will not do: see R v Head

[2008] QB 43

at para 22, per Hughes LJ. Further, the child (B) must know what the defendant is saying or doing. If the offence charged is that of intentional incitement the prosecution does not have to prove that defendant intended that the actual sexual activity should take place, because the essence of the offence is the intentional incitement of the person under 13 to engage in sexual activity.

[27]As the authors of Rook & Ward on Sexual Offences, Law and Practice (4th Ed. 2010) point out at para 3.92, because there are higher maximum punishments for offences committed under section 8(2) of the SOA, the effect of the House of Lords’ decision in R v Courtie

[1984] AC 463

, when applied to section 8 of the SOA is that, in practice, it creates four different offences, each of which must be carried out intentionally. The first is causing penetrative sexual activity; the second is inciting such activity; the third is causing non- penetrative sexual activity and the fourth is inciting such activity. As the authors emphasise, with good reason, it is therefore important that the charge or indictment specifies which of these offences is being alleged.

[28]The second general point we would make is that the offences created by section 8 are directed towards a defendant who intentionally causes or incites the child, that is (B) himself or herself, to engage in “sexual activity”. The offence is not concerned with whether the defendant engages in sexual activity.

[29]Thirdly, as already noted, there is no definition of “activity” in the SOA. We are prepared to accept, for the purposes of this appeal, that “activity” on the part of the child could embrace “the activity” of conversation or sending text or MSN messages, depending on the circumstances. Whether a child sending a text or MSN message could amount to being engaged in “sexual” activity would depend on whether that “activity” came within the definition of “sexual” set out in section 78 of the SOA. Mr Ladenburg argued strenuously on this appeal that the questions and remarks of the appellant in texts and MSN messages in this case could amount to him intentionally causing or inciting “sexual activity” on the part of H, even if her response had been confined to her giving answers in the form of texts or MSN messages.

[30]Fourthly, with regard to the definition of “sexual”, in R v H

[2005] 1 WLR 2005

at paras 8 and 9 Lord Woolf CJ identified three questions that may have to be considered when deciding whether a particular “activity” is “sexual” within the statutory definition. Each has to be asked by reference to whether a “reasonable person” would consider whether the activity in question is “sexual”. The first question, under section 78(a), is whether a reasonable person would consider that the relevant “activity”, whatever its circumstances or any person’s purpose in relation to it, is by its very nature “sexual”. In short, would a reasonable person consider that the relevant “activity” is intrinsically “sexual”. If the answer is “yes”, there is no need to go further. But if the answer is “no”, then the second question arises. This second question, under section 78(b), is whether a reasonable person would consider that the relevant “activity”, because of its nature may be “sexual”. It appears that if the answer is “yes it might be, depending on the circumstances”, then the third question becomes relevant. That is: would a reasonable person consider(i) because of the circumstances or

(ii) the purpose of any person in relation to it, (or both (i) and (ii)), that the relevant “activity” is “sexual”.

[31]The Lord Chief Justice went on to point out, at para 12, that there are threshold questions a judge may have to consider before leaving to the jury the issue of whether the relevant “activity” of the child in question is “sexual” activity, notwithstanding the reference to what “the reasonable man would consider” in the opening words of section 78. We have to consider this aspect below.

Analysis: count 1 of the Indictment

[32]The fact that section 8 of the SOA creates two, if not four, separate offences means that a count charging a defendant must be drawn with particular care. In the present case we have to say that count 1 was not so drawn and that is what gives rise to the difficulties which have led us to conclude that this conviction is unsafe. On any view count 1 alleges at least four different offences. These are:(1) intentionally causing H to engage in sexual activity in taking part in a webcam conversation when the defendant asked H to show her bra;

(2) intentionally inciting H to engage in sexual activity in taking part in a webcam conversation when the defendant asked H to show her bra;

(3) intentionally causing H to engage in sexual activity in taking part in a webcam conversation and asking her to take off clothing; and

(4) intentionally inciting H to engage in sexual activity in taking part in a webcam conversation and asking her to take off clothing. It might be thought that the count also contains allegations of (a) intentionally causing and (b) intentionally inciting H to engage in “sexual activity” in the form of a webcam conversation in the circumstances alleged. Technically speaking, the count was bad because it contained within it allegations regarding a multiplicity of offences, which depended on proof of different facts and different actions, and a different state of mind by the defendant (an intention to cause and an intention to incite) for each allegation. More importantly and practically, this jumble of offences in one count created difficulties for both judge and jury.

[33]The count should have been broken down. In essence there were two prosecution allegations that mattered in this case. The first allegation was that the appellant had intentionally caused H to engage in “sexual activity” by asking her to show her bra on the webcam, which, all were agreed, she had actually done by showing her bra strap. The two key questions in relation to that allegation were whether, in the circumstances, the action of showing the bra strap amounted to “sexual activity” and whether the appellant had “intentionally caused” H to engage in such “sexual activity”.

[34]The second relevant allegation was that the appellant had intentionally incited H to engage in “sexual activity” by asking her if she would take off clothing. Whether that activity was meant to be on the webcam or otherwise is not clear. H did not, of course, take off clothing. The key questions in relation to that allegation would be whether, in the circumstances, “taking off clothing” amounted to “sexual activity” by H and whether the appellant had “intentionally incited” H to engage in that “sexual activity”.

[35]In our view the judge erred in not making this analysis of count 1 at the beginning of the trial. He should have directed the prosecution to decide what specific offences it wished to allege. Then, for the benefit of the jury, if not to ensure that there was no “duplicity” or even “quadruplicity” or “sextuplicity” in the count, he should have directed that there be separate counts for each specific alleged offence. If this analysis had been undertaken, it would have become immediately clear that there was no evidence at all to support an allegation that the appellant had intentionally caused H to engage in “sexual activity” in the form of taking off clothing. H had not done so at any stage, so the appellant could not have “intentionally caused” her to do so. In addition, in our view, the evidence in support of an allegation that the appellant had “intentionally incited” H actually to take off clothing, ie. deliberately encouraged her to do so by a text or MSN message which asked her if she would do that, was either non-existent or so vague that no jury could have safely convicted of that offence. We note that nowhere in the summing up did the judge refer to any MSN or text exchange in which the appellant even asked H the question “would you take off clothing”.

[36]Therefore, if a careful analysis of Count 1 had been undertaken at the outset of the trial, the judge would have had to conclude that two out of the four parts of it should not go before the jury, viz. those alleging that the appellant had intentionally caused or had intentionally incited H to engage in “sexual activity” by taking off clothing. Those allegations, should have been withdrawn on the simple ground that there was insufficient evidence on which a jury, properly directed, could convict of those offences. Moreover, it is clear that the offence of “intentionally inciting” H to show her bra was itself duplication, because the evidence was that she had actually shown her bra strap, so that the offence of “intentionally causing” H to do so was sufficient to cover those facts.

[37]We have concluded that this failure in itself makes the conviction unsafe because the jury were asked to consider, within the one count, two possible offences which they should not have been asked to consider. We do not know on what basis the jury did, in fact, convict the appellant.

[38]The consequence of permitting the count to go before the jury in the form that it did was that the judge had necessarily to construct an elaborate direction on the law. We wish to say nothing to discourage giving juries written directions on the law, in particular on the ingredients of the offence or offences charged, as this court pointed out in R v Walker, para 29. But the judge in this case had the difficult task of having to give clear and accurate written directions which coped with all the different permutations which count 1 envisaged.

Analysis: the directions to the jury on the ingredients of the offences in count 1

[39]Unfortunately, because the judge had not conducted an analysis of what was contained in count 1, we have concluded that there were errors in the judge’s directions to the jury in relation to what they had to find on the ingredients of “the offence” before it could convict. Paragraph 1(b) of the written directions, which the judge dealt with orally at page 5 of the summing up, refers to the “conduct” which the jury “can consider” in deciding whether the appellant “intentionally caused” or “intentionally incited” H to “engage in an activity”. The judge sets out four categories of “conduct” and says that the jury can consider them either individually or collectively – hence the use of “and/or” in the written directions.

[40]We make the following comments on those directions: first, given the view we have expressed above, the judge should not have included the reference to inciting H to take off clothing because there was insufficient evidence to go to a jury on that allegation. Secondly, the judge does not sufficiently analyse for the jury the different elements of the offences to be considered. Unfortunately, he elides “conduct” on the part of the appellant with “conduct” on the part of H. Thus he tells the jury in (b)(ii) that they can consider the “conduct” of “inciting her to show him her bra”. What, with respect, the judge should have done in relation to that particular species of “conduct” was to state that the jury had to consider three aspects: first, were they satisfied that the appellant had said or done something that intentionally (deliberately) incited (encouraged) H do something viz. show her bra. Secondly, was that a deliberate encouragement of H to engage in an “activity”, viz. show her bra. Thirdly, was that “activity” which the appellant was deliberately encouraging H to do a “sexual” one. The same exercise should have been done with any other relevant “conduct”. The jury’s confusion on whose activity and what type of activity was relevant is obvious from the nature of the question that they asked the judge after their retirement, to which we have already referred and with which we deal below.

[41]Next, because the judge had not sufficiently differentiated between the different offences alleged in count 1, he not only said that the jury could consider one or all of the four classes of “conduct” that he set out, but he also went on to say “you must be sure that any of(i) to (iv) above took place before considering whether Phillip Grout intentionally caused or intentionally incited H to engage in an activity”. Thus he did not indicate what particular conduct was referable to which offence, whether it be “intentional causing” or “intentional inciting”. Nor does he indicate which particular activity on the part of H, the child, the “conduct” of the appellant was said to be intentionally causing or intentionally inciting. Further, the judge did not say that the jury must be agreed on which “conduct” it is satisfied had taken place. So some jurors might consider conduct (i) relevant and some others might consider conduct

(ii) and so forth.

[42]Lastly, although the single judge did not grant leave on the question of the judge’s direction on the meaning of “sexual”, we have grave misgivings about it. We accept that the judge did go through the three stages set out in the Lord Chief Justice’s judgment in R v H, referred to above. But, in our view the judge did not sufficiently emphasise that it is the activity of the child, H in this case, that the jury must be satisfied was “sexual”. Thus, just after the judge has given his directions on what “conduct” the jury can consider to see whether the appellant had intentionally caused or incited H to engage in an “activity”, the direction on “sexual” says (paragraph (c)) that the jury must be sure “the activity was sexual”. This could have led the jury into error in this case because, when the judge had given his direction concerning “activity” in paragraph 1(b) of his written directions, he had stated that the “conduct” which the jury could consider to decide whether the appellant had intentionally caused or incited H to engage in “activity” consisted of the items he identified in sub-paragraphs (i) to (iv) of paragraph 1(b). But the “conduct” set out in those paragraphs is a mixture of “conduct” on the part of the appellant and “conduct” on the part of H herself. Therefore the jury might have thought that it could consider the appellant’s conduct as part of the exercise in deciding whether the activity that the appellant was causing or inciting H to engage in was “sexual”. The jury was not clearly directed that it must concern itself with the question of whether the activity of H, as opposed to that of the appellant, was “sexual” within the statutory definition.

Analysis: the judge’s direction following the jury question

[43]It looks as though the jury was indeed confused about whose “sexual activity” was relevant, judging by the second question that they put to the judge. That was, by reference to a paragraph in the judge’s written directions:

“we are split on point 1(c)(ii). Specifically was the act of asking H to show Mr Grout her bra, was that a sexual activity”

. That suggests that they were discussing whether the act of Mr Grout asking H to show her bra was a “sexual activity” rather than concentrating on whether the act of H showing her bra would itself be a “sexual activity”; or it may be the jury was asking whether either the appellant or H’s activity was a “sexual activity”.

[44]Unfortunately, when the judge answered the jury’s question, his further directions did not remedy the earlier errors. He referred the jury back to paragraph 1(b) of his written directions and reiterated that the jury could consider those four items of “conduct” “…in relation to whether it is an activity”. That again confuses whose “activity” is relevant and for what purposes, for the reasons we have already given. The judge then said:

“you do not have to be sure on all four of those. Any one will do, so long as at least ten of you are agreed on it”

. In other circumstances where alternative facts had been put to the jury as part of the prosecution’s case it would have been correct to say that the jury must be agreed on one particular series of facts. However, the further direction given fails to deal with the fundamental difficulty that the “conduct” the judge had referred to embraces both “conduct” by the appellant as well as the alleged “sexual activity” of H that it was being said that the appellant’s conduct was causing or inciting H to engage in.

[45]After the judge had repeated his written directions on how the jury should decide whether an “activity” was sexual or not, he said:

“this brings me to the heart of your question”

. However, the judge did not then direct the jury that they must keep separate in their minds (a) the acts or words of the appellant that are said to have deliberately caused or incited an “activity” on the part of H; and (b) whether that “activity” on the part of H was “sexual” or not, within the definition of the SOA.

Analysis: conclusions

[46]We summarise our conclusions as follows. First, count 1 alleged at least four offences and, if they were to be pursued then those offences should have been the subject of separate counts. Secondly, at the outset of the trial, the problems of count 1 should have been tackled. If they had then it would have become obvious that an allegation that the appellant had intentionally caused H to engage in “sexual activity” in the form of taking off clothing had to be withdrawn, because there was no evidence that that had occurred. It would also have been clear that there was no point in charging the appellant with both causing and inciting H to engage in “sexual activity” in the form of showing her bra on the webcam. Thirdly, at the end of the prosecution case, at the latest, the judge should have withdrawn from the jury the allegation that the appellant had intentionally incited H to engage in “sexual activity” in the form of taking off clothing as the evidence to support that charge was too vague and flimsy for the jury safely to convict of that charge. Fourthly, because count 1 was left for the jury’s consideration in its portmanteau form, it was almost inevitable that the jury would be uncertain as to what elements of a particular offence had to be proved before they could find the appellant guilty of one or other offence alleged. This was clearly demonstrated by the terms of the second question put to the judge by the jury after their retirement. Fifthly, the judge’s directions to the jury on the ingredients of the offences set out in count 1 were unsatisfactory, for the reasons we have set out in detail above. Furthermore, they were not corrected when he gave further directions when the jury asked its second question when considering its verdicts.

[47]For all these reasons, we were satisfied that the conviction of the appellant on count 1 was unsafe and so we allowed the appeal and quashed that conviction.