Indecent Assault in UK Law

So long as the examination is carried out for genuine medical purposes in a manner and in circumstances consistent with those purposes, then in our view the fact that the doctor or midwife happens to have some secret indecent motive, or happens to obtain some sexual B gratification known only to himself from carrying out his legitimate work, cannot, in our view render the circumstances indecent.

Any apparent donflict between the last two cases and the Act on the one hand, and the earlier cases on the other, can be reconciled in this way. The Act bars consent from preventing an act being an indecent assault. Hence, if the act alleged to constitute the assault is itself an indecent act, consent will not avail. But in the present case the touching, which was merely to indicate a pose, was not of itself indecent, and was consented to.

But that was not the situation here, and on the facts of this case we think plainly it would have been a wrong exercise of discretion not to leave this question of indecent assault to the jury, because this was a case where the appellant himself had given evidence and had said on oath 'True I did not have intercourse, but I did do that which amounts to an indecent assault'.

If he did not intend to do this, he is entitled to be found not guilty; and if he did not so intend because he believed she was consenting, the prosecution will have failed to prove the charge. It is the defendant's belief, not the grounds on which it was based, which goes to negative the intent.

The issues addressed in these cases were the result of two things: the increase in the maximum penalty for indecent assault from two years' imprisonment to 10, enacted by section 3(3) of the Sexual Offences Act 1985; and the practice of prosecutors to lay charges under section 14 when the time for doing so under section 6 had expired. In R v Hinton (1994) 16 Cr App R(S) 523 it did so because the section 6 time limit had expired.

Thus, from beginning to end of the process, the charge here was, in substance, one of rape under the 2003 Act. As far as the judge, jury, prosecution and defence were concerned the appellant was tried on and convicted of the right offence (rape) under the right Act. The appellant was properly before the Crown Court, the indictment was in every other respect in proper form and, therefore, valid, and the Particulars of Offence could and did support a conviction of rape contrary to the 2003 Act.

The test must be—is the evidence capable of tending to persuade a reasonable jury of the accused's guilt on some ground other than his bad character and disposition to commit the sort of crime with which he is charged? The similarity would have to be so unique or striking that common sense makes it inexplicable on the basis of coincidence.