Although the law is aimed at ensuring the justice of the case is met for both the accused and the complainant, the deterrent effect envisaged when the Sexual Offences Act 2003 was drafted has, to some extent, resulted in ambiguous language and wide powers granted to the police and prosecutors. As famously noted in 2005 by the then Vice-President of the Criminal Division of the Court of Appeal, Rose LJ: ‘If a history of criminal legislation ever comes to be written it is unlikely that 2003 will be identified as a year of exemplary skill in the annals of Parliamentary drafting’.
While many of the initial issues raised by the 2003 Act have since been addressed, it remains the case that the law on sexual offences is vast and complex, resulting in some of the most serious and difficult of police investigations and criminal cases. Allegations of sexual offences are particularly serious, complex and fact-specific matters, covering a multitude of situations and incidents that raise highly delicate issues for both the defendant and the complainant.
In recent years, the law has developed with a particular emphasis on protecting the rights of complainants in order to tackle high attrition rates. Unfortunately, protection of the rights of those accused of sexual offences has not been given similar attention. The result is that it is more important than ever that the rights of defendants are safeguarded and the cardinal principles of a fair trial and the presumption of innocence underpinning the criminal justice system are respected and upheld.
As part of a series of articles highlighting some of the issues associated with allegations of sexual abuse, we have drafted a guide below providing an overview of the law on sexual offences in England & Wales, as well as some of the issues that can arise when defending against allegations of sexual crime.
We have also added a new FAQs section with answers to some of the most common sexual offence defence questions (click here for the FAQs).
“Stuart’s real value is twofold. You don’t realise it at first but his ability to capture tiny details and bring them out in the appropriate way is critical to the scope of a defence and therefore its potential for success. Secondly, his confidence and quick thinking in the early stages of the legal process saved us from a potentially debilitating restriction to my family which cannot be underestimated. Unreservedly recommended.”
“When you are challenged in your professional career it can be a very stressful time. Stuart Sutton and his team have been nothing but excellent throughout my ordeal. Never judgemental or dissuading, just positive and factual. By always being approachable, down to earth and able to see logic when all around are losing theirs, it was comforting to know that Mr Sutton was on my team. I wish them all the best for the future and am truly indebted to them”.
“You worked tirelessly and diligently to clearly and precisely develop a very clear and incisive case. You are great at listening, your combination of hard-nosed honesty, professionalism, your caring attitude and humour always seemed appropriate whatever the situation.”
Overview of the Law on Sexual Offences
Broadly, the Sexual Offences Act 2003 covers non-consensual indictable offences, such as rape, attempted rape and sexual assault, as well as either-way and summary offences relating to child pornography, prostitution and trafficking. Indictable offences are considered more serious sexual offences and can only be tried at a Crown Court after a preliminary hearing. Summary sexual offences are considered less serious and may be tried in a magistrates’ court without a jury. Either-way offences may be tried in either court, depending on the seriousness of the case.
Serious Sexual Offences & Consent
Perhaps one of the most difficult issues raised by allegations of a serious sexual offence, such as rape or sexual assault, is consent. Consent is often central to serious sexual offence investigations and can be very difficult to prove or disprove. The law provides that a serious sexual offence will not have been committed where a complainant consented and the accused had a reasonable belief that the complainant had given their consent, or was old enough to give their consent (i.e. aged 16 or over – consent is irrelevant when the complainant is under 13, see more on child sex offences below).
Whether a belief in consent is reasonable is determined objectively and according to all the circumstances of the case, raising evidential issues for both the prosecution and the defence. In some circumstances, such as where the complainant was asleep or unconscious when the incident is alleged to have taken place, the law presumes that there was no consent or a belief in consent. This places a burden on the defence to show sufficient evidence to raise an issue about consent or their belief in consent.
Where an allegation is made that rape was committed prior to May 2004, an accused person may be charged under the Sexual Offences Act 1956, which has a different definition of consent. Under that Act, the crime of rape will not be committed if the accused honestly, and subjectively, believed the other party consented. Similarly, where an accusation is made of sexual assault occurring before 2004, adefendant person may be charged with indecent assault under the 1956 Act, which is also likely to require an absence of consent in order to establish criminal liability.
A particular difficulty with such historic cases is the lack of evidence. Often it will be the complainant’s word against the defendant’s, with the result that the defendant may find that they have to vigorously lead a defence, despite the presumption of innocence.
You can read more about the issues raised by allegations of historic sexual abuse here. See also our guide: Review of Sexual Offence Investigation Evidence & Forensic Strategy
Child Sex Offences
Although many of the sexual offences contained in the Sexual Offences Act 2003, such as rape and sexual assault, can be committed against any person no matter their age, consent is irrelevant when it is alleged that a serious sexual offence was committed against a child. There are also equivalent offences that can only be committed against children under 13 or 16, and other specific offences relating to children, such as meeting a child after sexual grooming.
The age of those accused of a sexual offence against a child is relevant, with some specific offences that can only be committed by those under 18. The law also provides offences for those who engage in sexual activity with a child with whom they are in a position of trust or in a family relationship with, such as teachers, care workers, foster parents and step-families who have quasi-parental responsibilities for a child.
The vulnerable position of child complainants and witnesses, as well as the likely close relationship between them and a defendant, means particular care must be taken when dealing with allegations of child sexual abuse. Such issues place all those involved under acute emotional pressure, and it is often in everyone’s best interests to ensure to those subject to trying investigations and questioning are represented by legal professionals who can deal with the issues clearly and coherently.
Sexual Communication with a Child
It is an offence to be involved in sexual communication with a child. The offence, under s67 Serious Crime Act 2015, came into force on April 3rd 2017, and will carry a maximum jail sentence of two years as well as being automatically placed on the sex offenders register.
The offence criminalises conduct of an adult who intentionally communicates with a child under the age of sixteen (or in the absence of a reasonable belief that the child is sixteen or over) with the purpose of obtaining sexual gratification where the communication is sexual in nature or if the intent is to encourage a sexual response. The term ‘sexual gratification’ is already used in context of offences at sections 11 and 12 of the Sexual Offences Act 2003 which prohibit engaging in sexual activity in the presence of a child and causing a child to watch a sexual act respectively, and case law has given the term a wide interpretation.
Chatting sexually to a child in an online chatroom, sending sexually explicit text messages to a child and inviting a child to communicate sexually (whether the invitation itself is sexual or not) is a criminal offence as well as all online and offline communications, including on social media, email, and letters.
The offences relating to the accessing of child abuse and other indecent images online are found in the Protection of Children Act 1978, the Criminal Justice Act 1988 and the Coroners and Justice Act 2009. In more serious cases, offences contained in the Sexual Offences Act 2003 may also be charged.
You can find out more about the legal implications of accessing child abuse images online here.
The accessibility of indecent images online has drawn the attention of law enforcement agencies, resulting in complex and far-reaching criminal investigations by both the National Crime Agency (NCA) and police forces across the UK. Recently, the use of secret software during Operation Notarise, that tracks peer-to-peer sharing of illegal images, resulted in the identification of over 25,000 individuals suspected of accessing child abuse images online, 660 of whom were arrested.
The difficulties of investigating and identifying those suspected of accessing child abuse images has resulted in the NCA examining new techniques for gathering and sharing intelligence, particularly following reported failings of the Child Exploitation and Online Protection Command (CEOP) to share information on suspects with the police. Yet the scale of alleged offending means not all suspects are investigated, with attention being focused on those in positions of trust, such as doctors and teachers.
The priority that is being given to investigating those in positions of trust, such as health care professionals, social workers and police officers, can have particularly damaging consequences. As well as facing criminal proceedings, they may also face fitness to practise investigations that may result in suspension and loss of livelihood.
More information about professional regulation and the criminal justice system is available here.
Defending Allegations of Indecent Assault & Sexual Offences
While criminal justice agencies increasingly hone their techniques for identifying suspects who commit offences online, such as accessing indecent images, and allegations made against those in the public eye or positions of trust continue to draw the attention of the press and public, it can occasionally be overlooked that many individuals alleged of committing a sexual offence have not been previously cautioned or convicted of a sexual crime. As such, it is important to remember that accusations of serious sexual offences do not create impossible situations – there are always options.
What is common to all sexual offence cases is their complexity and fact-specific nature, raising many issues for both the prosecution and defence when it comes to the cogency of legal arguments and evidence. Although individuals are increasingly being targeted by those under pressure to prosecute sexual offences, robust and thought-out representation at all stages, from initial police interview and investigation to criminal proceedings, ensures the rights of those accused are protected.
When defending allegations of indecent assault or other sexual offences, the importance of defence statements and the quality of the production of third party evidence and medical evidence cannot be overstated. They involve a deep engagement of the facts of the case and require forensic investigations into the credibility and reliability of witnesses and the accuracy of the evidence. There are many situations where a case may be terminated early or a defendant discharged because of the force of a properly drafted defence statement. For example, defence statements can highlight:
- the accuracy of allegations, which may be false or exaggerated, either due to false memory or arising out of malice;
- medical evidence which assists the defendant, admonishing the accused, such as illnesses that affect sexual performance; or,
- insufficient evidence as to identification of the suspect, alleged motive or withholding of consent.
Also, disclosure requests may be made which result in the production of material held by third parties such as social services, which can often shed a different light on the relationship between the complainant and the defendant. This is especially the case in relation to foster carers.
By raising such issues, defence statements seek to identify points overlooked by the police and prosecution that show that the case is manifestly unfounded and unlikely to result in conviction. Alternatively, an initial charge may be downgraded to a less serious offence.
Witness Statements and Special Measures
Although medical statements, hospital admissions, forensic examinations, independent witness statements and other forms of evidence are often relevant to a sexual offence case, the prosecution’s principal form of evidence is likely to be a witness statement made by the complainant. Such evidence is often decisive to the case against a defendant and demands special attention.
In all sexual cases, the complainant is first recorded on video answering questions asked by police. During this interview, police must adhere to the Achieving Best Evidence (ABE) code and not ask questions that are leading or forced-choice or otherwise contaminate the interview process and the witness’s account. They are also under a duty to identify evidential inconsistencies or omissions.
Where a case goes to trial, special measures are available in court for those giving evidence who are considered vulnerable or allege sexual misfeasance by the defendant. Such special measures include giving evidence from behind a screen or, sometimes, via video link or in private. Video recorded statements or interviews may also be (and usually are) admissible as evidence-in-chief. Importantly, whether special measures are suitable is decided by the court, which must ask itself whether measures are likely to improve the quality of the evidence given by the witness and in the interests of justice.
Although the ABE code and special measures have been introduced to support complainants, they can have profound implications for defendants. An element of the right to a fair trial is the requirement that a defendant be given an adequate and proper opportunity to challenge and question a witness, yet special measures may diminish the effectiveness of cross-examination, putting a defendant at a substantial disadvantage. For instance, where a video recorded statement, obtained without following the ABE code, is admissible as evidence-in-chief, it may not be possible for a meaningful cross-examination to take place. It is therefore vital that criminal defence lawyers are aware of these potential issues and minimise, as best they can, the chances of the defendant suffering prejudice.
Unfortunately, the disproportionate protections afforded to witnesses compared to defendants aren’t restricted to those identified above. Those accused of serious sexual offences, such as rape, may wish to be protected from the damaging consequences of false allegations. Yet defendants aren’t offered the same lifelong anonymity provided to complainants of rape and other sexual offence. Find out more about defendant anonymity here.
Expert Criminal Defence in Serious Sexual Offence Cases
At Sutton Defence Lawyers, we have an exceptionally well-regarded reputation, not only for our extremely capable and professional approach to criminal defence, but also for our treatment of clients and sympathetic understanding of the distress caused when facing serious allegations of criminal behaviour. We also have an excellent record successfully defending sexual offence cases.
Crown-v-W (Lancashire): Obtaining detailed instructions in relation to a multi-count Indictment concerning sexual misfeasance with a girl under the age of 16. Many and various witness statements were taken, as well as documentary evidence, such as cards and letters sent by the Complainant to W, obtained. An extensive Defence Statement was drafted and lodged, resulting in the Crown offering no evidence and the Judge formally passing not guilty verdicts to W.
Crown-v-C (Woolwich): Representation of a young man accused, and subsequently acquitted after a one week trial, of sexual misfeasance in relation to two underage girls. An extensive Defence Statement was drafted following a full forensic examination of the evidence, detailed editing of the Complainant’s evidence for the Crown to consider (and accept), taking of extensive instructions, attending and photographing the site of one of the alleged crimes, drawing plans of the area and obtaining site maps and evidence from third party material.
Crown-v-F (Surrey): Successful defence of a multi-count sexual offence Indictment in relation to one girl. Having obtained extensive instructions, a forensic examination of the evidence was conducted, as well as the taking of photographs and drafting of floor plans relevant to the location of the alleged incident. Further information was obtained from F in relation to birthday cards and other documentation passed by the complainant to F. A detailed Defence Statement was drafted, requesting extensive third party disclosure in relation to the complainant. After a one week trial, F was acquitted on all Counts.
Crown-v-M (Bedfordshire): A multi-count Indictment in relation to sexual misfeasance with an underage girl, followed by additional Counts in relation to the complainant’s sister, was successfully defended resulting in the acquittal of M following a one week trial. Prior to the Defence Statement being served, a forensic analysis of the evidence was conducted, various witness statements, photographs and floor plan of the premises where the incident allegedly took place were obtained. Many and various witness statements from friends and former friends of the initial complainant were taken, as well as requests made for extensive third party material.
Crown-v-S (West Yorkshire): Following a one week trial of accusations of sexual misfeasance in relation to the main complainant and assault in relation to her friend, S was acquitted. We conducted a forensic analysis of the evidence, took length and detailed instructions and obtained copies of documentation sent by the complainant to S. A detailed Defence Statement was drafted and filed, and requests for disclosure of extensive third party material in relation to the main complainant sought.
R v J (London): D was found not guilty of sexual touching in various ways over many years. At the first trial, the jury couldn’t reach a decision on any of eight Counts. At the retrial, D was found not guilty of the first four Counts at the end of the prosecution evidence, following an application of no case to answer on the evidence. The jury couldn’t reach a verdict on the remaining four Counts. The Crown did not want to proceed to a third trial and offered no evidence. The Judge formally entered not guilty verdicts.
Contact Our Sexual Offences Defence Lawyers (London, Birmingham, Manchester)
We are known for our diligent preparation and robust and professional representation. These key traits are essential to safeguarding the rights of our clients from allegations of criminal activity. We discuss all the available options in order to find and implement the best course of action.
Sexual Offences Criminal Defence – Frequently Asked Questions
Need more information? Facing allegations can be stressful and finding information relating to your case can be complex and frustrating. This section can assist you in answering some of the most common questions relating to criminal allegations and also direct you to more information on other specific areas of law.
Can I protect my identity if accused of a sexual offence?
Police practice is to not release the name or any identifying details of individuals who are suspected of carrying out a sexual offence, or have been arrested in connection with a sexual offence, other than in exceptional circumstances.
Exceptional circumstances may be where disclosure of identity is in the public interest.
This exception is particularly relevant to allegations of historic sexual abuse cases as the crimes are of such a serious nature that police are more likely to believe disclosure to be in the interest of the public.
Can I protect my identity if falsely accused of a sexual offence?
There is no general right to anonymity if you have been charged with an offence. However, there are restrictions on reporting which may limit the disclosure of material that could identify you at various stages of criminal investigation and during a trial.
During a trial the court has discretionary powers to restrict the reporting of the proceedings, which may include the identity of the defendant…however, it rarely does.
How is consent proved? What is the required standard of consent?
A serious sexual offence will not have been committed where the complainant consented to the actions of the accused or the accused had reasonable belief that consent had been given by the complainant. The complainant must also have been old enough to give their consent under the law (i.e. aged 16 or over – consent is irrelevant when the complainant is under 13).
Where the complainant was asleep or unconscious during the alleged incident, the law presumes consent was not given or that there was no belief consent had been given.
Belief that consent had been given is to be determined objectively and will be judged in light of all the circumstances of the case.
Will a criminal charge or conviction affect my fitness to practise my profession?
Many professions are regulated to make sure that members of that profession meet certain standards that are expected of them and required to carry out their role.
If allegations of criminal conduct in relation to a professional person arise, this may raise concerns about fitness to practise that profession.
Criminal allegations may lead to a regulatory investigation by the body responsible for regulating the profession of the accused in order to assess their fitness to practise in light of any alleged criminal behaviour.
What will happen if I am accused of failing to meet professional conduct standards?
A referral or complainant about your fitness to practise can be made by public organisations responsible for reviewing performance, colleagues, managers, other members of the profession, police or a client or patient.
If a complaint is made the relevant investigating committee or interim orders panel will assess whether the complaint can be dealt with informally or justifies a fitness to practice investigation and hearing.
How can I defend an allegation of a sexual offence made against me?
Defending an allegation of sexual offences has two exceptionally important components:
- a well drafted defence statement; and
- third party evidence.
The importance of these elements cannot be overstated. Both command a deep analysis of the facts of the case and require extensive independent investigation into the credibility and reliability of witnesses and the accuracy of evidence.
Defence statements are crucial and sometimes lead to the early termination of a case or discharge of the defendant if properly drafted. This is because statements can:
- call into question the accuracy of the allegations that may be false or exaggerated. This may be as a result of false memory or have arisen out of malice;
- bring to light medical evidence which absolves the accused, such as an illness that would have affected sexual performance; or,
- produce documents that cast doubt on the credibility of the complainant.
When such issues are raised in a defence statement, it highlights important points that may have been overlooked by the police or prosecution. This may mean that there is now doubt surrounding the allegations, which may cause the CPS to withdraw their case on the basis that it is unlikely to lead to conviction.
What is a defence statement?
A defence statement, drafted by a criminal defence solicitor, sets out the nature of the accused’s defence. It must be submitted to the prosecutor and the court, and contains details of any witnesses, an interpretation of the prosecutor’s evidence and requests for disclosure of third party documents.
In the defence statement, all of the issues the defence has with reliability and credibility of evidence must be raised and addressed. Furthermore, where ‘course of conduct’ allegations are made (where multiple incidents are alleged to have occurred over a certain period of time), accusations and impressions that are misleading can be countered in the defence statement.
Is there a time limit on historic sexual abuse investigations and charges?
There is no time limit to when sexual offences may be prosecuted in the UK.
A formal complaint of sexual abuse may be made even decades after the alleged incident occurred but this will not affect how the police and Crown Prosecution Service (CPS) will investigate and enforce the law.
The complaint will be investigated by police and if sufficient evidence emerges and it is deemed to be in the public interest, then an individual may be prosecuted by the CPS.
What can I be charged with following a historic sexual abuse investigation?
This will depend on when the alleged crime was committed. Most individuals charged with historic sexual sexual abuse offences will be prosecuted under the Sexual Offences Act 1956.
However, incidents alleged to have occurred after 1 May 2004 will be prosecuted under the Sexual Offences Act 2003. If it is not possible to determine whether the incident occurred before or after 1 May 2004, the earlier law will apply if it attracts a lesser maximum penalty.
What kind of evidence can be used in a historic sexual abuse allegation?
As with all criminal cases, the credibility, reliability and consistency of witness statements and evidence are the most important factor in establishing the truth.
However, ensuring the reliability of evidence in historic sexual abuse cases is exceptionally challenging – especially when the evidence may be decades old.
As a result of the long period of time which may have elapsed since the alleged sexual abuse occurred and when it is finally reported to police, it is unlikely there will be any physical or scientific evidence.
This means that the most common types of evidence are witness statements and ‘third party disclosure’ – such as social services reports, psychologist reports and education and medical records.
The complexity of some disclosure issues may mean forensic examination of vast amounts of material which, when viewed by the prosecution, may lead them to believe that there are no longer reasonable prospects of a successful prosecution.
Therefore, requesting this party disclosure evidence is an important part of defence strategy.
What are the legal implications of accessing indecent or child abuse images?
Indecent images have become increasingly accessible in recent years, resulting in law enforcement agencies conducting complex and far-reaching criminal investigations.
Software was recently used during Operation Notarise to track peer-to-peer sharing of illegal images. This resulted in over 25,000 individuals being identified as suspects in cases of accessing child abuse images, with 660 arrest being made in August of 2014.
The evidently large scale of alleged offending and the difficulty of investigating allegations means that authorities focus on those in positions of trust such as doctors, teachers, foster carers, social workers and police officers.
However, in some of these professions not only is there the potential for facing criminal proceedings but also proceedings relating to fitness to practise, suspension or dismissal.
What are child sex offences?
Many offences, such as rape and sexual assault can be committed against any person, regardless of age.
However, there are equivalent offences that can only be committed against children. In these cases consent is irrelevant, as consent in the eyes of the law cannot be given by anyone under the age of 16. Furthermore, there are specific child related offences such as meeting a child after sexual grooming.
Child sex offences are separated into offences committed against a child under 16 and a child under the age of 13, the latter being more serious. However, the government recognised that people under 18 may also commit such offences and legislated accordingly (section 13 of the the Sexual Offences Act 2003).
There are also specific crimes reserved for those in a position of trust in relation to a child or those in a family relationship with the complainant.
Contact Our Sexual Offences Defence Lawyers (London, Birmingham, Manchester)
Our robust defence preparation, attention to detail and professional representation makes us the first choice for criminal defence. These key traits are essential to safeguarding the rights of our clients from allegations of criminal activity. We discuss all the available options in order to find and implement the best course of action.
Our expert sexual offence solicitors are available 24 hours a day, 7 days a week, ready to advise and assist. For more information, please contact Stuart Sutton on 07798 753 720 or get in touch via our online contact form.