R v Court (pet.all.)
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1987 |
| Court | House of Lords |
| Year | 1987 |
| Date | 1987 |
Crime - Sexual offences - Indecent assault - Mental element in offence - Whether proof of indecent intention or motive required - Whether evidence of secret motive admissible -
The appellant, an assistant in a shop, struck a 12-year-old girl visitor some 12 times, for no apparent reason as she thought, outside her shorts on her buttocks. In response to a question by the police as to why the appellant had done so he said “I don't know — buttock fetish.” He was tried on a count charging indecent assault contrary to section 14(1) of the Sexual Offences Act 1956.F1 He pleaded guilty to assault, denied that it was indecent and submitted that his statement about “buttock fetish” should be excluded as being a secret uncommunicated motive and could not make indecent an assault not overtly indecent. The trial judge refused to exclude the statement, the appellant did not give evidence and he was convicted. The Court of Appeal (Criminal Division) dismissed the appellant's appeal against conviction.
On appeal by the appellant:—
Held, dismissing the appeal (Lord Goff of Chieveley dissenting), that where a charge of indecent assault contrary to section 14(1) of the Sexual Offences Act 1956 was founded on facts capable of being given an innocent as well as an indecent interpretation, it was necessary for the prosecution to prove not only that the accused intentionally assaulted the victim but that in doing so he intended to commit an assault which right-minded persons would think was indecent; and that evidence as to the accused's motive tending to explain the cause for his conduct was admissible to establish whether he intended to commit not only an assault but an indecent assault; that accordingly the evidence concerning the appellant's statement about buttock fetish had been admissible and the verdict was not unsafe or unsatisfactory (post, pp. 1072G–H, 1073C–D, E–F, 1075E–G, 1082F–G, 1084C–E, 1085B–D).
Per curiam. If the circumstances of an assault are incapable of being regarded as indecent, the undisclosed intention of the accused cannot make the assault an indecent one (post, pp. 1072G–H, 1073C–D, E–F, 1081G).
The following cases are referred to in their Lordships' opinions:
Beal v. Kelley [
Faulkner v. Talbot [
Reg. v. Baker, The Times, 31 July and 3 August 1875
Reg. v. George [
Reg. v. Kilbourne [
Reg. v. Kimber [
Reg. v. Pratt [
Sherras v. De Rutzen [
Sweet v. Parsley [
The following additional cases were cited in argument:
Reg. v. Culgan (
Reg. v. Johnson [
Reg. v. Leeson (
Reg. v. Resener (
Reg. v. Rolfe (
Reg. v. Sutton (Terence) [
Reg. v. Thomas (Emrys) (
Reg. v. Turner (
Rex v. Abrahams [
Rex v. Ball [
Rex v. Chong (
Rex v. Quinton (
Appeal from the Court of Appeal (Criminal Division).
This was an appeal by the appellant, Robert. Christopher Court, against the decision of the Court of Appeal (Criminal Division) (Ralph Gibson L.JJ., Hirst and Otton JJ.) [
The Court of Appeal (Criminal Division) certified that the following point of law of general public importance was involved in the decision (post, p. 1079H), but refused leave to appeal.
On 16 July 1987 the Appeal Committee of the House of Lords (Lord Bridge of Harwich, Lord Ackner and Lord Oliver of Aylmerton) allowed a petition by the appellant for leave to appeal.
The facts are set out in the opinion of Lord Ackner.
Martin Thomas Q.C. and Trevor Halbert for the appellant.
Alex Carlile Q.C. and Robin Spencer for the Crown.
Their Lordships took time for consideration.
28 April. Lord Keith of Kinkel. My Lords, I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friends Lord Griffiths and Lord Ackner. I agree with them entirely, and will add only a few observations of my own.
A wicked intention is an essential ingredient of the offence of indecent assault, as indeed it is of most other crimes against the person. For the most part, the wicked intention can readily be inferred from the facts found proved as to the circumstances of the assault, unless there are indications that those features of the circumstances which are capable of being considered indecent were not intended — as in the instance put of a common assault accidentally involving damage to a woman's clothing. In a narrow range of cases, however, the circumstances may not point unequivocally to the requisite wicked intention. The delivery of chastisement to the buttocks of a child is capable of presenting a case of that nature, since such chastisement is not necessarily indicative of an intention to do something indecent. Where, however, there is direct evidence, as there was in the present case in the shape of the appellant's statement about buttock fetish, that it was the assailant's intention to use the victim for the purpose of gratifying a peculiar sexual instinct, and that his action did in fact amount to a using of her for that purpose, such evidence can, in my opinion, properly be taken into account so as to resolve any ambiguity about the nature of the act. The contrary view seems to me to fly in the face of all common sense.
I would therefore hold that the trial judge correctly admitted the evidence in question, and dismiss the appeal.
Lord Fraser of Tullybelton. My Lords, I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Keith of Kinkel, Lord Griffiths, and Lord Ackner. I agree that, for the reasons given by them, the evidence of the appellant is admissible and that this appeal should be dismissed.
Lord Griffiths. My Lords, this appeal turns on the answer to the following question. On a trial of indecent assault arising out of a spanking delivered by a man to the buttocks of a Young girl, is the evidence that he told the police that he did it because of a “buttock fetish” admissible evidence which the Jury may consider when deciding whether the assault was indecent? I am bound to say my instinctive answer was, yes of course it is. I have now had the advantage of reading the speeches of my noble and learned friends, Lord Ackner and Lord Goff of Chieveley. My answer remains the same. I agree that for the reasons given by my noble and learned friend, Lord Ackner the evidence is admissible and that this appeal should be dismissed.
It is only because of the difference of judicial opinion to which this case has given rise that I venture to add some observations of my own.
The gravamen of the offence of indecent assault is the element of indecency. It is this element of indecency that distinguishes the offence from common assault and makes it such a potentially serious offence carrying a maximum term of imprisonment of ten years. By indecency is meant conduct that right-thinking people will consider an affront to the sexual modesty of a woman.
Although the offence of indecent assault may vary greatly in its gravity from an unauthorised teenage sexual groping at one end of the scale to near rape at the other, it is in any circumstances a nasty, unpleasant offence for which a conviction is likely to carry a far greater social stigma than a conviction for common assault. There is agreement that the offence cannot be committed accidentally as, for instance, in the example given by Lord Ackner of ripping a woman's clothing whilst attempting to force an exit from a tube train. Once this concession is made it is apparent that some extra mental element is required than that necessary for common assault, for, in the example given, a person using unnecessary violence to push through the crowd would have the necessary intent to commit an assault. It seems natural to me that this extra mental element should be that which constitutes the essence of the offence, namely, an intent to do something indecent to the woman in the sense of an affront to her sexual modesty or, in other words, an intent to do that which the Jury find indecent. Indecent assault is after all a sexual offence appearing in the Sexual Offences Act 1956 and one should on general principle look for a sexual element as an ingredient of the offence.
In none of the authorities before the present decision of the Court of Appeal [
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