R v BJE [2025] EWCA Crim 534

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 534Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Friday 11 April 2025
Before
LORD JUSTICE HOLGATEMR JUSTICE WALLRECORDER OF THE ROYAL BOROUGH OF KENSINGTON & CHELSEA(His Honour Judge Edmunds KC)
Between
REXCrownv
Between
BJE(1992 Sexual Offences (Amendment) Act applies)__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR MATTHEW PAUL appeared for Applicant_________APPROVED JUDGMENT
[1]The provisions of the Sexual Offences (Amendment) Act 1992 apply to these offences. 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 the offence or offences. This prohibition applies unless waived or lifted in accordance with section 3 of the Act.[2]Between 23 January 2024 and 1 February 2024 the applicant stood trial in the Crown Court at Teesside before His Honour Judge Smith in relation to sexual offences against two children. The trial indictment contained sixteen counts.[3]On 1 February 2024 the applicant (to whom we will refer as BJE) was convicted of counts 5 and 6 only, both offences of indecent assault on a male person (C1), contrary to section 15(1) of the Sexual Offences Act 1956. He was acquitted of counts 15 and 16, offences of causing or inciting a child under 13 (C2) to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003, and an offence of sexual assault of a child under 13 (C2), contrary to section 7(1) of the Sexual Offences Act 2003. The jury were unable to reach a verdict on the remaining counts, all of which related to C1. A retrial has been ordered, which is listed to take place on 6 May 2025. Sentence on counts 5 and 6 has been adjourned until the conclusion of the retrial.[4]‘BJE’ renews his application for leave to appeal against conviction in relation to counts 5 and 6 following refusal by the single judge.[5]‘B’ is C1's mother. In 2003 B began a relationship with BJE. At the time, BJE was 17 and B was twelve years older. C1 was around 9. In the summer of 2003, BJE and B began living together. In June 2004 they married. C1 was treated as BJE's stepson. BJE and B themselves went on to have two children together, one of whom was C2.[6]In 2020 C1 reported to police that he had been sexually abused by BJE during his childhood. The prosecution case was that BJE had sexually abused C1 between 2003 and 2006, when C1 was aged 9 to 12. At the time of this investigation BJE was living in Australia and so he was not interviewed about the allegations, but when he was informed of the proceedings, he voluntarily returned to the UK to be charged.[7]The indictment alleged four types of sexual abuse:• BJE placing his penis into C1's mouth (counts 1, 2, 7 and 8)• BJE placing his mouth on C1's penis (counts 3, 4, 13 and 14)• BJE masturbating C1 (counts 5, 6, 11, 12); and• BJE getting C1 to masturbate him (counts 9 and 10). Counts 5 and 6 related to the period 1 August 2003 to 30 April 2004. Counts 11 and 12 covered the period 1 May 2004 to 30 October 2006. Counts 5 and 11 each related to a single incident of masturbation. Counts 6 and 12 each alleged that at least two additional sexual assaults involving masturbation had occurred during the relevant period.[8]In the trial the prosecution relied upon four areas of evidence.[9]First, C1 gave evidence. He said that in 2020, when he was 26, he made a statement to police. In 2003 he had had a medical issue with his penis and BJE had helped by applying some cream. But BJE's behaviour changed. BJE became intrigued by C1's private parts. BJE would ask C1 to masturbate him and give him oral sex. In addition, BJE would perform oral sex on C1 and would also masturbate him. C1 said the sexual abuse started when he was aged around 9 and occurred repeatedly for about 3 years.[10]Second, B (C1's mother) gave evidence about an event in 2004. She said she found an envelope that contained pictures of C1's penis. She spoke to her son and confronted BJE. She said BJE admitted taking the photographs but after he provided an explanation she did not take the matter any further at that stage.[11]Subsequently in 2007 she walked in on BJE when masturbating to homosexual pornography. She discussed her concerns with a friend, who advised her to go to the police, which she did in February 2007. She separated for a time from BJE, before they reconciled, but eventually they divorced in 2015.[12]Third, B's friend gave evidence about that discussion in 2007 when B had spoken about her concerns.[13]Fourth, there was evidence of BJE's bad character. On 14 March 2007 BJE received from the police a formal caution relating to the sexual abuse of C1. The caution was administered for an offence of gross indecency, contrary to section 13 of the 1956 Act. The Caution Form states that BJE attended the police station on 5 February and 23 February 2007 and made admissions that between November 2003 and January 2004 he touched C1's penis on a number of occasions and had put C1's penis in his mouth. The applicant had voluntarily attended the police station. He was interviewed on 5 February and 23 February. C1 made a witness statement that he did not want to get BJE into trouble and did not want the police to take any further action. The Caution Form was admitted in the trial as an agreed fact.[14]The defence case was that BJE admitted the sexual abuse as set out in the police caution, namely that he had on one occasion placed C1's penis into his mouth and that he had touched C1's penis on a number of other occasions. However, he denied ever taking photographs of C1's penis and he denied all the other allegations, including that of masturbation and oral rape.[15]‘BJE’ gave evidence. He said that he had been asked to apply cream to C1's penis because of a medical issue. He said that his behaviour changed from something medical into something sexual. He accepted that he got sexual pleasure from touching C1's penis. He said this behaviour went on for around five or six weeks. He also accepted placing his mouth on C1's penis on one occasion. He then said he had been consumed by guilt because of his actions and he confessed to B a short time later. He said that he committed no further sexual abuse of C1 and after a difficult time in his relationship with B, they married in 2004. He accepted that the incident in 2007 when B had walked in on him whilst he was watching homosexual pornography had taken place and that that had led him to receiving the police caution. He denied masturbating C1's penis or ever taking pictures of the penis. He denied that he had repeatedly performed oral sex on C1 or that he had orally raped C1.[16]The judge provided the jury with written directions and a written route to verdict. He dealt with the caution BJE had received as follows:
"13. The defendant was not prosecuted for the offences he admitted in 2007, but it was explained to him that the formal police caution was an alternative to prosecution and the matter was concluded in that way. 14. For that reason the sexual assault which the defendant was cautioned for in February 2007 (when he admitted placing his mouth around [C1's] penis on a single occasion) is not part of the behaviour which forms part of the indictment. This is why the wording of counts 3 and 4 include the word[s] 'on an occasion/on at least two occasions ... other than as admitted in the formal caution'."
[17]The jury were directed on counts 5, 6, 11 and 12 within the route to verdict at Part C. In addition, within his summing-up the judge referred to masturbation as having involved in this case the rubbing of C1's penis or movement, as distinct from mere touching.[18]The proposed grounds of appeal make no complaint about either the directions given by the judge or his route to verdict.[19]We refer to two passages in the oral legal directions to the jury:
"Part C [which dealt with counts 5, 6, 11 and 12] I really can skip through because that is the rubbing of C1's penis ... Not touching but rubbing, which is what [C1] told you had happened, what the defendant says did not. You will be deciding whether you are sure that it happened on at least one occasion ... and the questionnaire is in every other respect identical to the questionnaires that we have looked at ... and so you have got some questions that you would only be thinking about if you were not sure of the timeframe."

The judge referred to 'rubbing' a second time when summarising BJE's evidence:

"Now there he is using word, 'Touching', and you see the word, 'Touching', in the interviews in respect of the caution, and I have not used that word in my route to verdict. I have used the word, 'Rubbing', to separate the two ... because of course what is alleged is masturbation which in the circumstances of this case I am going to suggest is about rubbing, it is about movement, which was how it was described by [C1], not as the defendant had admitted in the past touching ... So again, for the same reasons ... what was admitted in the caution process, and not using that against the defendant as the basis for finding guilt in this case. That is why I have drawn the distinction between those two actions."
[20]Mr Paul on behalf of the applicant submits that there are two grounds on which the convictions on counts 5 and 6 are unsafe.[21]First, the Crown conceded, and the judge agreed, that BJE should not be tried for conduct which was the subject of the 2007 caution. For that reason the allegations that BJE had performed oral sex on C1 were drafted so as to exclude the single occasion the subject of the caution in 2007 when BJE admitted putting C1's penis into his mouth. However, it is said that the judge erred in allowing the jury to convict BJE on counts 5 and 6 on the basis of rubbing or masturbating C1's penis when that conduct had also been the subject of the caution in 2007. Instead the judge should have withdrawn counts 5 and 6 from the jury. It was an abuse of process for the court not to do so(seeJones v Whalley [2006] UKHL 41; [2007] 1 AC 3). Alternatively the distinction between touching and masturbation had not adequately been put to BJE during the interviews leading up to the caution, so that it was unfair for the prosecution to treat counts 5 and 6 as falling outside the scope of the conduct admitted by BJE and the subject of the caution.[22]Before turning to summarise Ground 2, we should indicate how Mr Paul put his submissions under Ground 1 orally before the court today. Here he placed more emphasis on that alternative basis for Ground 1. He submitted that there was an unfair ambiguity between, on the one hand, masturbation and rubbing, and on the other, touching. However, he accepted that when there were discussions between counsel and the judge on the form in which legal directions should be given to the jury, it was agreed between counsel before the judge that it would be valid for him to explain the distinction between the scope of the caution in 2007, and the allegation in counts 5, 6, 11 and 12 in terms of a difference between, on the one hand, masturbation (otherwise rubbing) and, on the other, touching. We observe that that agreement on the validity of that distinction was put before the judge for him to accept on the basis that BJE and his counsel were fully aware of the way in which the applicant, BJE had given his own evidence.[23]The second ground is that the jury reached inconsistent verdicts on counts 5 and 6 as compared to counts 11 and 12, which alleged the same type of conduct. The latter counts alleged masturbation of C1 after the Sexual Offences Act 2003 came into force. It is said that there was no rational basis for the jury to treat C1 as a reliable witness for the purposes of counts 5 and 6 but not counts 11 and 12. In his oral submissions this morning Mr Paul, having emphasised what I would call for short the ambiguity point under Ground 1, accepted that if the court should reject Ground 1, that Ground 2 was not a free-standing ground of complaint.[24]The court has also received a Respondent's Notice, which we have read and considered. Discussion[25]We deal first with Ground 1. In our judgment this ground has come before the court in an unsatisfactory manner for reasons which we will set out. We should record first that the defence did not ask the judge to withdraw counts 5 and 6 from the jury because they coveredadmissions upon which the 2007 caution had been founded or because to try BJE on those allegations would involve an abuse of process. Likewise there was no submission put before the judge asking for evidence relating to counts 5 and 6 to be excluded from the trial pursuant to section 78 of PACE. There has been no real explanation for that course having been chosen during the trial. Accordingly, we do not have a ruling from the judge on the points which BJE's counsel (who was also trial counsel) now seeks to raise. In many instances that would be enough for this court to refuse to entertain the complaint.[26]Unfortunately we have received no assistance from either side on the issue as to whether the court should entertain this matter. The Respondent's Notice does not contend, for example, that the applicant is debarred from raising his abuse of process argument because it was not raised before the Crown Court. Despite these unsatisfactory circumstances, in order to ensure fairness to BJE we will assume in his favour that he may raise this argument in his application. However, we emphasise that we do not accept the propriety of the matter having been raised in this way.[27]The essential questions remain: What did the process which led to the caution and the notice itself cover? Was there any ambiguity in that documentation? There is no dispute that it covered BJE performing oral sex on C on one occasion. The issue is whether it also arguably covered BJE masturbating C1 during the indictment period.[28]In our judgment the position is clear beyond argument. In his witness statement dated 7 February 2007 C1 stated that BJE masturbated him but he never ejaculated. It must therefore have been clear to BJE in 2007 that that was one of the allegations made against him. Not surprisingly, therefore, the summary of BJE's interview on 27 February 2007 clearly states that he denied masturbating C1 on any occasion prior to the offence of oral sex. It is also clear from the earlier interview on 5 February 2007 that BJE denied committing any sexual assault on C1 after that single incident of oral sex. He also maintained in the second interview that the details he had given in his first interview were correct. So no one thought at the time that there was any inconsistency between that summary of the second interview and what had been said by BJE in the first interview or that there was any ambiguity as between the two. Accordingly, the Caution Form correctly stated that BJE had admitted, inter alia, that between November 2003 and January 2004 he had touched C1's penis on a number of occasions. Thus far there is no scope for arguing that in 2007 BJE admitted having masturbated C1 during that period or that there is the slightest ambiguity about what the documents are saying in terms of the scope of the admission.[29]With respect, Mr Paul's submissions confuse this straightforward position in two ways. First, he said that the meaning of masturbation was not "explored" in the interview of 5 February. C1 was not specifically asked whether or not his hand moved during the admitted touching. The distinction between touching and masturbation was insufficiently precise to allow the jury to distinguish "between conduct which was the subject of the 2007 caution and conduct which fell outside its scope".[30]Putting to one side for the moment what happened in the interview on 5 February 2007, it is plain from the materials to which we have already referred that BJE denied masturbating C1 but admitted touching his penis. The jury did not need a lawyer to explain to them the difference between the two. Not surprisingly, BJE did not suggest that he did not understand that difference, nor did he suggest that in 2007 what he really was admitting to was having masturbated C1. If he had done that, then first of all that would have been inconsistent with his case at trial that he never masturbated C1 at all. Secondly, whereas that might have resulted in the prosecution not proceeding on count 5, it would also have amounted to admissible bad character evidence on count 6, making it more difficult for him to defend that count. Third, it would also have contradicted Mr Paul's reliance upon evidence from C1 during the trial that none of the conduct complained of occurred before May 2004, both in a submission to the judge of no case to answer and in the proposed second ground of appeal presented to us. In our judgment the way in which these matters were presented in the Crown Court and in this court smacks of being highly tactical.[31]Next Mr Paul criticises the judge for saying to the jury that masturbation in this case was about rubbing C1's penis or movement. We see no merit in that argument, but in any event, it really has nothing to do with Ground 1, which is concerned with the scope of BJE's conduct upon which the caution was based.[32]We turn to the interview on 5 February 2007. We note the following points:(1) ‘BJE’ said that initially C1 asked him to look at a sore and swollen area of his penis. He explained that there were a few occasions when C1 asked him to take a look.(2) ‘BJE’ was asked about his having touched C1's penis. His reply was that he did not physically do anything to make C1 have an erection: "That happened of his own accord."(3) ‘BJE’ then said that he and C1 had a giggle about it and it was left at that. It only happened nine or ten times and it did not continue for long.(4) ‘BJE’ also said in response to a question that he had never seen C1 ejaculate at any time.[33]In our judgment there is nothing in the interview to suggest that BJE admitted to masturbating C1. For all these reasons we consider the first ground of appeal to be unarguable and we agree with the single judge. It follows also from the concession which was made by Mr Paul this morning that Ground 2 falls away. Nonetheless we will briefly consider Ground 2 as put before the court.[34]Mr Paul submits that no jury could rationally convict on counts 5 and 6 and be undecided on counts 11 and 12 because all those allegations depended upon the evidence of C1, who gave contradictory evidence. In his ABE evidence C1 said that the masturbation took place over a lengthy period both before and after 1 May 2004. However, after the jury had listened to that evidence, C1 also said, in answer to supplementary questions put by prosecuting counsel, that none of the conduct complained of had occurred before May 2004.[35]It is concerning that the advice in support of the appeal did not refer to the fact that this contradiction was also discussed with the judge during counsel's submission that there was no case for C1 to answer in relation to all counts charging offences prior to 1 May 2004 (that is, before the Sexual Offences Act 2003 came into force). At that point Mr Paul relied upon that part of C1's evidence in which he had said nothing happened before May 2004 to support the submission that there was no case to answer on counts 1 to 6. However, the judge rejected that submission. He decided that it was not his function to reject C1's ABE evidence and that it was for the jury to evaluate the conflict in C1's evidence. He decided that the jury might be sure that BJE, for example, masturbated C1 but unsure whether C1 was aged 10, 11 or 12 when that happened. In those circumstances section 55 of the Violent Crime Reduction Act 2006 applied so that BJE would be found guilty potentially in relation to an indictment period covering the period August 2003 to October 2006 of an offence under whichever statutory regime imposed a lower maximum penalty - in this instance, section 15(1) of the 1956 Act. There is no ground of appeal challenging the ruling on the submission of no case to answer.[36]The judge carefully crafted a route to verdict which accurately applied section 55 of the 2006 Act in its various permutations. He went to great lengths to take the jury through those permutations, explaining in practical terms and, as far as they needed to know, the effect of section 55. Counsel does not criticise the legal directions given to the jury. It follows that one outcome which the jury would have been entitled to reach was that they were sure the masturbation offences had occurred on at least three occasions at some stage during the indictment period but they could not be sure whether that was before, on or after 1 May 2004. If they had reached that view, they would have found BJE guilty under counts 5 and 6 and not guilty under counts 11 and 12. There would be no possibility whatsoever of alleging irrationally inconsistent verdicts.[37]Another rational possibility is that all of the jury were sure that the offending alleged had taken place but some were unsure as to whether it occurred before or after 1 May 2004 and others were sure that the offending occurred both before and after that date. For example, the latter could have preferred the ABE evidence to the oral evidence. That would be within the province of the jury. That could explain why the jury was unanimous in convicting on counts 5 and 6 but unable to agree on counts 11 and 12.[38]The real effect of the applicant's submissions as presented in writing to us is that if the jury reached a verdict on count 5, whether guilty or not guilty, then they had to return the same verdict on count 11, and likewise for the pair of counts 6 and 12. If that was the contention, then the authorities are perfectly clear: the defence should have asked the judge during the trial for a direction to that effect and asked the judge to rule on the matter if there was an issue about it. If the jduge had accepted such a submission, the directions would have been cast in a very different form (see Lord Bingham CJ in R v W (Martyn) (unreported 30 March 1999) and Rex v Mundle [2024] EWCA Crim 1289). There is therefore no merit in the way in which this argument was presented in the written grounds of appeal. We would add that in these circumstances the decision in R v G [2014] EWCA Crim 2508 is of no assistance to the applicant at all.[39]The introduction of the 2003 Act was the only reason why offending between August 2003 and October 2006 was split between, on the one hand, counts 5 and 6 and, on the other, counts 11 and 12. At the end of the day, section 55 of the 2006 Act was designed to prevent an injustice either to the public interest or to defendants where a jury is sure that an offence has occurred during the indictment period but is unsure when it occurred relative to 1 May 2004 or where some members of the jury are unsure on that point. We would wish to pay tribute to the care which the judge took in drafting the route to verdict and in his legal directions.[40]The conclusion we reach is that there is no merit at all in either of the two proposed grounds of appeal and for that reason we agree with the single judge that the application for leave to appeal against conviction must be refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk