‘Sexual Gratification’ and the Presence of a Child: R v B & L [2018] EWCA Crim 1439; [2019] 1 WLR 3177
| Author | Andrew Beetham |
| Published date | 01 October 2019 |
| Date | 01 October 2019 |
| DOI | http://doi.org/10.1177/0022018319878030 |
| Subject Matter | Case Notes |
Case Note
‘Sexual Gratification’
and the Presence of a Child
RvB&L[2018] EWCA Crim 1439; [2019]
1 WLR 3177
Keywords
Sexual gratification, presence of child, link between gratification and presence, Sexual Offences
Act 2003, s 11
The Appellants B (male) and L (female) were in a relationship with two children of the family: the elder
child, CL, who was the daughter of L from a previous relationship and the younger, CB, who was the
daughter of both Appellants. In 2014, CL made an allegation of sexual assault against B (for which he
was later convicted and sentenced). As part of the investigation, B’s computer was seized and examined.
Police found deleted thumbnail images on the computer that formed part of a video. The video was
recovered in part along with an audio track.
The video showed B changing in and out of women’s clothes with his genitals exposed and L
encouraging him in these activities. In the background a child, accepted to be CB, was heard
making noises and at times walking into the camera shot. L was heard to say that she was ‘getting
in the way’. The age of CB could not be determined as the video was undated; however, it was
suggested that she could have been as young as 1½ years and as old as 4 years (this was an issue at
trial). In interview, the Appellants stated that they would both dress up as part of their sexual
relationship but denied that any presence of CB in the video was for their sexual gratification. Both
Appellants were charged with engaging in sexual activity in the presence of a child contrary to
Sexual Offences Act 2003, s 11.
An application was made pre-tria l by both Appellant s for the charge to be dismissed. This appli-
cation was rejected on the basis that there was evidence upon which a jury could conclude that they
had engaged in the sexual activity knowing or believing CB was present so as to add to their sexual
gratification. At trial, the Appellants made a half-time submission of no case to answer. The trial judge
rejected the submission and ruled that the elementsoftheoffence(whichhesubsequently repeated to
the jury) were that: (1) they must have intentionally engaged in sexual activity for the purpose of
obtaining sexual gratification; (2) that they did so in the presence of CB; (3) that they knew or believed
that CB was aware of the sexual activity; and (4) the Crown did not have to prove that CB was aware
that the activity that was taking place was sexual. The trial judge therefore gave a ruling in which he
stated that the Crown did not have to be prove a link between the presence of the child and the sexual
gratification.
As a result of the ruling, L pleaded guilty however B pleaded not guilty and was convicted by a jury. L
received a community order and B received a sentence of 6 months’ imprisonment; both were made
subject to a Sexual Harm Prevention Order.
The Appellants sought permission to appeal against conviction. The Registrar referred both applica-
tions to the Full Court, which granted permission. The Appellants submitted that the ruling given by the
trial judge was erroneous in law (at [12]).
The Journal of Criminal Law
2019, Vol. 83(5) 416–419
ªThe Author(s) 2019
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DOI: 10.1177/0022018319878030
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