Issue 172  12th December 2020

On 17 October 2019, in the Crown Court at Teesside (Judge Armstrong) the defendant was acquitted of an offence of sexual assault contrary to section 3 of the Sexual Offences Act 2003. He was also acquitted of the alternative offence, common assault. The Attorney General, pursuant to section 36 Criminal Justice Act 1972 ("CJA"), has referred to this court a point of law which arose in the trial proceedings upon which she desires the opinion of the Court, as follows: "Is it necessary for the prosecution to prove, as an element of the offence of sexual assault, not only that the offender intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but that the offender intended his touching of that person to be sexual?"

... Notwithstanding Ms Heeley's cautionary submission that this is an offence that carries serious consequences on a conviction, we are confident that the answer to the question posed by the Attorney General is that it is not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the offender not only intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but also that the offender additionally intended his touching of that person to be sexual. Instead, under section 78 (b) the accused's purpose in relation to the activity may be relevant if a reasonable person would consider that, given the nature of the activity, it may be sexual and, because of the accused's purpose, it was sexual.

Her Majesty's Solicitor General seeks leave to refer the sentences of two unconnected prolific sexual offenders (McCann and Sinaga) to the Court of Appeal on the grounds that their multiple life sentences with minimum terms of 30 years are unduly lenient. He submits that the scale and nature of the offending calls for whole life tariffs to be attached to the life sentences. We have been unable to accept that submission but conclude that the minimum terms should be raised to 40 years. The third case before us is an application for leave to appeal by a doctor convicted of multiple sexual offences against his patients. He was sentenced to life imprisonment with a minimum term of 15 years. We give leave to appeal but dismiss the appeal...

...The offending in the cases of McCann and Sinaga, very serious indeed though it is does not, in our judgment, call for either to receive a whole life tariff. This is not to minimise the seriousness of their offending but instead to ensure that the most severe sentence in our jurisdiction is reserved, save exceptionally, either for the most serious cases involving loss of life, or when a substantive plan to murder of similar seriousness is interrupted close to fulfilment...

Charles Elphicke was sentenced on 15 September 2020. In advance of his sentencing hearing, the Defence uploaded 34 character references to the digital case system... After the sentencing hearing, on the same day, I received an email from the Guardian Newspaper requesting sight of the character references. That was followed by a similar request on behalf of the Times Newspaper. As matters have developed, three media organisations have now joined in making the present application for disclosure of the character references (the three are Associated Newspapers Ltd, Guardian News and Media Ltd, and Times Newspapers Ltd, the “Media”). Their application is advanced under Crim PR 5.8(7)...

The character references as a class are not confidential documents. They were put before a public hearing as evidence. The open justice principle applies and the default position is disclosure. It is necessary, however, to conduct a “fact-specific balancing exercise” (Cape Holdings, Guardian, Khuja) in relation to each reference before determining whether, and if so in what form and to what extent, it should be disclosed. I complete the quote from Cape Holdings above. That exercise involves: “... weighing the potential value of the information sought in advancing the purpose of the open justice principle against any risk of harm which its disclosure might cause to the maintenance of an effective judicial process or to the legitimate interests of others.”