R v Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON |
| Judgment Date | 17 October 1986 |
| Judgment citation (vLex) | [1986] EWCA Crim J1017-1 |
| Docket Number | 1446/D/86 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 October 1986 |
[1986] EWCA Crim J1017-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Ralph Gibson
Mr. Justice Hirst
and
Mr. Justice Otton
1446/D/86
MR. T. HALBERT appeared on behalf of the Appellant.
MR. R. SPENCER appeared on behalf of the Crown.
REASONS FOR JUDGMENT
(As approved)
On 19th February, 1986 in the Crown Court at Caernarfon before Mr. Justice Mars-Jones this appellant, Robert Christopher Court, who is aged 27, was convicted of an indecent assault on a girl under the age of 13. On 20th February he was made the subject of a probation order for three years with a condition that he should receive psychiatric treatment for 12 months. He appealed against conviction on a point of law and his appeal was heard by this court on 17th July. We announced on 31st July, 1986 that his appeal was dismissed for reasons to be given at a later date. They are as follows.
The appellant was an assistant in his family's gift sho in Abersoch. The victim of the assault was aged 12. She and her family were on holiday and she had visited the shop on several occasions. On two of those occasions the appellant had asked her if she had ever been spanked. When she said "No" he had replied: "That's the kind of girl I like". On 13th September, 1985 the girl again went into the shop with her brother. The appellant again asked her if she had ever been spanked. She said "No". He asked her if she would let him spank her. She said "No" and walked away to another part of the shop. A little later when she passed him to get to the front of the shop he seized her arm, pulled her across his knees and struck her twelve times on her buttocks outside her shorts. He stopped when her brother appeared. He got up and gave the children some items on sale in the shop, saying: "If you don't tell you can have these". The girl went home and told her mother that the appellant had spanked her for no apparent reason and scared her. When her father went to the shop the appellant apologised profusely. The father complained to the police and the appellant was arrested and interviewed. He admitted spanking the girl and when asked why said: "I don't know buttock fetish". He went on to say that it was something he had experienced over the past nine years, but that the urge came over him "only once in a blue moon". This was the first time he had ever done it.
At the trial the appellant admitted assault and pleaded guilty thereto. He denied that the assault was indecent. His counsel invited the judge to rule that the evidence of the appellant's admission of having a "buttock fetish" should be excluded on the ground that, being a secret uncommunicated motive, it could not make indecent an assault which by reference to the overt circumstances was not indecent. The judge refused to exclude the evidence. We have no transcript of the submission or ruling. The appellant did not give evidence.
The submissions for the appellant in this court were that the learned judge was wrong in law in admitting evidence of the appellant's secret motive, and in directing the jury that they could consider that secret motive in considering whether the assault was committed in circumstances of indecency. The judge should, it was said, have directed the jury to decide objectively whether or not the assault was indecent on the basis of what was revealed to or apprehended by the victim at the time and without regard to any secretly held motive.
The directions of the judge on the law as to what was required to be proved for conviction were as follows. After telling the jury that the accused admitted assaulting the girl he continued: "indecent assault has been defined as an assault accompanied by circumstances of indecency on the part of defendant towards the girl, and 'indecent' has been defined as overtly sexual. What has the Prosecution got to prove to establish the defendant's guilt on this charge of indecent assault? They must prove two things. Firstly, that the defendant's conduct was such that it would appear to an ordinary observer as an affront to modesty: conduct which contravened right-thinking people's ideas of standards of decent behaviour. Secondly, that the defendant had an indecent intention in doing what he did. So first you must have conduct which would appear to the ordinary observer as an affront to modesty, and secondly you must have an indecent intention on the part of the defendant in doing what he did. The Prosecution do not have to prove that the girl Joanne realised that this was an indecent assault."
The learned judge thus told the jury that proof of the indecent intention of the accused was a requirement additional to and separate from proof of objectively decent conduct but there was no direction at that point upon the relevance if any of a proved indecent intention to the consideration by the jury of the question whether the conduct was objectively indecent.
For the prosecution in this court it was accepted that if the circumstances of the assault were incapable of being regarded as indecent, then the secret motive of the accused could not make an assault indecent. The secret motive or intention of the accused would then be irrelevant. If, however, the circumstances of the assault were such that the jury could hold them to be indecent, then the secret motive of the accused could be taken into account by the jury in deciding whether the circumstances were in fact indecent. The offence of indecent assault included both a battery, or touching, and the psychic assault without touching. If there was touching, it was not necessary to prove that the victim was aware of the assault or of the circumstances of indecency. If there was no touching, then to constitute an indecent assault the victim must be shown to have been aware of the assault and of the circumstances of indecency.
In the view of this court the first concession by the prosecution was rightly made: if the circumstances of the assault are incapable of being regarded as indecent, they cannot become indecent because of a secret motive of the accused. Streatfeild J. so held in R. v. George (1956) C.L.R. 52, where the accused attempted to remove a girl's shoe from her foot because it gave him some sexual gratification, but there were not overt circumstances of indecency towards the victim. Further, in R. v. Kilbourne (1972) 1 W.L.R. 1365, Lawson J. had directed the jury that an indecent assault meant "a deliberate touching of somebody else's body, clothed or unclothed, with an indecent intention. That is to say, a deliberate touching which is activated by some indecent purpose." The Court of Appeal (Lawton L.J., Mackenna and Swanwick J.J.) held that direction to be much too wide because it could cover acts which were nothing more than preliminary steps towards committing an indecent assault as for example in touching a woman's hand.
This principle, however, provides no answer to the issue raised in this case. The rejection by the court in Kilbourne of the definition proposed by Lawson J. establishes that indecent purpose by itself is not enough. It does not decide whether or not an indecent purpose or intention is an essential ingredient of the offence, which is the key question in the present case. We should first note that the words "indecent intention" or "indecent purpose" in our view appear at first sight to have greater precision of meaning than they retain on closer examination. So far as the indecent circumstances of an assault are overt, the intention of the accused may, of course, be regarded as indecent if, knowing of those circumstances, he makes the assault. But if "indecent intention" or "indecent purpose" were to be taken to mean the ulterior intention or motive of the accused, then it would be necessary to determine whether such motive need relate only to the gratification which the accused seeks from his act, or also to the desired effect upon the victim, or whether either would suffice. A man might make an assault in circumstances which were known to him, and which were objectively indecent, but entirely without prurient interest on his own part and solely from anger or with the purpose of chastising. Further, on the same assumption, would it be sufficient that the accused was proved to have an intention or purpose which the jury regards as indecent, or must the accused also be shown to have realised that his purpose was indecent? Such questions, and the difficulty of answering them, cannot lead the court to answer the key question in the negative if it is clear that the law otherwise requires an affirmative answer, but they are, in our view, relevant to consideration of the construction of what Parliament is to be taken as having intended by the words of its enactments.
The offence of indecent assault is now contained in s.14 (1) of the Sexual Offences Act, 1956. It provides omitting words which are irrelevant: "It is an offence for a person to make an indecent assault on a woman." The section is silent as to the necessary mental element in the offence. In R. v. Kimber (1983) 77 Cr. App. R. 225 the appellant was charged with indecent assault on a woman who was a patient in a mental hospital. The Recorder ruled that a defendant charged with an indecent assault on a woman could not raise the defence that he believed that the woman had consented to what he did. This court (Lawton L.J., Michael Davies and Sheldon J.J.) held that the ruling of the Recorder was wrong. In giving the judgment of the court, and in applying Morgan's ca...
To continue reading
Request your trial
-
Sachchindanand Kumar v The Queen
...who has appeared on this appeal for the appellant submits that the judge's direction falls foul of the decision of the House of Lords in R v Court [1989] AC 28. Moses J. gave leave to appeal because, he said, it was strongly arguable in the light of Court that using a legitimate breast exam......
-
The People (at the suit of the DPP) v FN (A Minor)
...is concerned with contravention of standards of decent behaviour in regard to sexual modesty or privacy” (per Gibson LJ in R v Court [1987] 1 QB 156, 163); “conduct that right thinking people will consider an affront to … sexual modesty” (per Lord Griffiths R v Court at 34); “sexually indec......
-
R v H (Karl Anthony)
...determining whether the activity in question is sexual where this may be in doubt. This approach appears closely to mirror the decision in Court [1989] AC 28, in which the House of Lords distinguished three types of case in order to decide when an activity could be designated indecent for t......
-
R v Heard (Lee)
...necessary to decide whether or not it is possible to conceive of a reckless, but unintentional, sexual touching. Like their Lordships in R v Court [1989] 1 AC 28, we think that such a possibility is a remote one, but we are unable wholly to rule it out. One theoretical possible example migh......
-
The Doctrine of Incapability and the Emperor's New Clothes: A Protected Defendant or Non-Existent Offences?
...century when the publication of Lady Chatterly’s Lover by Penguin provoked a high-profile prosecution for obscenity 73 R v Court [1987] 1 All ER 120 at 122.74 Hodgson, Marshall and Moon had intercourse with the victim who was 14 years old, and Douglas attempted to do so. It is submitted tha......