Key Facts
- •Ricky Thompson was charged with three counts of sexual assault of a child under 13.
- •Counts 1 and 2 related to one complainant (A), alleging touching above and below the knee respectively.
- •Count 3 related to another complainant (B), involving leg and thigh massage witnessed and video-recorded by A.
- •The trial judge ruled there was no case to answer on counts 1 and 2.
- •The prosecution appealed this ruling.
- •A's evidence contained inconsistencies regarding when she remembered the alleged assaults.
- •A's friend received messages from A describing the events as they happened.
Legal Principles
Test for a submission of no case to answer (R v Galbraith)
R v Galbraith [1981] 1 WLR 1039
Definition of 'sexual' touching under section 7 of the Sexual Offences Act 2003
Sexual Offences Act 2003, section 7(1) and section 78
Previous case law on indecent assault (R v Court, R v George, R v Price, R v H)
R v Court [1989] AC 28, R v George [1956] Crim LR 52, R v Price [2003] EWCA Crim 2405, R v H [2005] EWCA Crim 732
Prosecution's right of appeal under section 58 of the Criminal Justice Act 2003 and the Court of Appeal's powers under sections 61 and 67.
Criminal Justice Act 2003, sections 58, 61, 67
Outcomes
The prosecution's appeal was allowed.
The trial judge erred in finding no case to answer on counts 1 and 2. The judge incorrectly concluded that touching below the knee could never be sexual and misapplied the Galbraith test in assessing the inconsistencies in A's evidence. A reasonable jury could convict based on the evidence presented.
Count 2 (touching below the knee) should be reinstated.
Whether the touching was sexual was a question for the jury, considering the circumstances and purpose. The possibility of cross-admissibility with evidence from count 3 (the video evidence) was also relevant.
Count 1 (touching above the knee) should be reinstated.
The inconsistencies in A's evidence were for the jury to weigh. Contemporaneous evidence supported A's account, and a reasonable jury could find the prosecution's case sufficient for conviction.