R v EGC [2026] EWCA Crim 342

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.[2026] EWCA Crim 342Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday 3 March 2026
Before
LORD JUSTICE MALESMR JUSTICE PICKENHIS HONOUR JUDGE DREW KC(Sitting as a Judge of the CACD)
Between
REXCrownv
Between
EGC__________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)_________LORI TUCKER appeared for Appellant.JERRY HAYES appeared for Crown._________JUDGMENT(Approved)
[1]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.[2]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”.[3]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 30th September 1998 by section 34 of the Crime and Disorder Act 1998.[4]The applicant is EGC, who is now 38 years old. On 30th 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.[5]Previously, on 22nd April 2024, the applicant pleaded guilty to two offences of sexual assault of a child under 13, three offences of possession of indecent photographs of children and a single offence of possession of prohibited images of children. The victim in the sexual assault counts was an 8-year-old girl (his partner's daughter). The facts[6]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.[7]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.[8]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.[9]The applicant's case was that this had not happened. He said that the complainants, including C1 (the complainant on the rape count on which he was acquitted), were not independent and had discussed their allegations together, and that they were influenced against him by the matters to which he had pleaded guilty. The period covered by count 3[10]The prosecution were not able to identify the date or even the year on which the offence against C3 was alleged to have happened. The period covered by the indictment ran from 31st December 1999, at which time the applicant would have been 11 years old, to 1st January 2001, when he would have been 12. However, after counsel’s closing speeches and in the light of the evidence, the judge directed the jury, with the agreement of both counsel, that they were entitled to convict, the precise date not being critical, if they were sure that the offence had happened between 10th February 1998 (the applicant's 10th birthday) and 1st May 2004 (the date when the Sexual Offences Act 2003 came into force and abolished the offence of indecent assault with which the applicant was charged). The effect of this direction was to expand the date range for the offence to include the period when the rebuttable presumption of doli incapax was still in force before its abolition with effect from 30 September 1998. Unfortunately however, this was not noticed at the time. The rebuttable presumption[11]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.

The judge did direct the jury in the following terms:

"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. Intention bears its ordinary, natural meaning but in determining the intention of the defendant who was young at the time, you will wish to proceed with care. If, for example, you were sure that the defendant had behaved as alleged, then however much you may disapprove of it, you would still need to consider whether as an 11 year old, this was some sort of game or conduct falling short of indecent and intentionally indecent. As you consider all the surrounding circumstances, especially what was said and what was done, you will wish to do so with the defendant’s age, development and maturity at the forefront of your mind."
However, this falls short of what was required.[13]In these circumstances, the applicant submits that the conviction on count 3 cannot stand. That is conceded by the prosecution and, for the reasons we have given, we agree. The effect of the jury's verdict is that they must have been sure that the applicant did the acts alleged and intended to do them, and that this may have occurred at a time when the applicant was only 10 years old. But the judge's direction did not require them to consider whether he knew that this was seriously wrong and, in particular, did not require them to consider whether there was evidence independent of the acts themselves to prove the applicant's guilty knowledge. In the case of a defendant only 10 years old, that would be particularly important. Accordingly, we grant leave to appeal against the conviction on count 3, we allow the appeal and we quash the conviction. The impact on count 2[14]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.[15]In our judgment however, there is no real possibility that the jury proceeded in this way. The judge gave a careful direction as to the relevance of the applicant's convictions. She explained that the prosecution case was that the offences to which the applicant had pleaded guilty demonstrated that he was an adult with a sexual interest in female children, as shown by indecent images of children aged up to 15 and the fact that in 2023 he had acted on that sexual interest by touching an 8-year-old girl. She made clear that any such sexual interest in female children was irrelevant to the rape allegation on count 1, where the complainant was an adult, and that it was equally irrelevant to count 3 when both the applicant and C3 were young children at the time of the events alleged. She directed the jury not to take any sexual interest of the applicant in female children into account when considering their verdicts on counts 1 and 3, and that its relevance, if any, was to count 2, touching of C2's breast at a time when the applicant was an adult and C2 was between the ages of 15 and 17. She said:
"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."
That was in the circumstances a proper direction to give.[16]It is unrealistic, in circumstances where the jury were directed in clear terms that the relevance of the serious matters which the applicant had admitted was to his state of mind as an adult, and where there was clear and obvious evidence that he did have (as an adult) a sexual interest in female children, to think that the conduct which formed the subject of count 3, at a time when the applicant was only 10 years or a little older, would have played any material role in the jury's consideration of count 2. In our judgment, it is not arguable that the conviction on count 2 is unsafe. We refuse leave to appeal against that conviction. Disposal[17]Accordingly, we grant leave to appeal against conviction on count 3, we allow the appeal and we quash the conviction. We refuse leave to appeal against the conviction on count 2. 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 18. Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk