R v H (Karl Anthony)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 01 February 2005 |
| Neutral Citation | [2005] EWCA Crim 732 |
| Docket Number | No: 2004/06152/C2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 February 2005 |
[2005] EWCA Crim 732
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
The Lord Chief Justice Of England And Wales
(The Lord Woolf Of Barnes)
Mr Justice Davis
Mr Justice Field
No: 2004/06152/C2
MR I WEST appeared on behalf of THE APPLICANT
MISS C EGERTON appeared on behalf of THE CROWN
The Registrar has referred to the full court this application for leave to appeal against conviction. He granted a representation order for counsel, namely Mr West who has appeared on behalf of the applicant, for the preparation and presentation of the application and, if granted, the appeal itself. At the beginning of the hearing of the case we granted leave to appeal and Mr West then made his submissions in support of the appeal.
This is the first appeal against conviction under the provisions contained in section 3 of the Sexual Offences Act 2003, which came into force on 1 May 2004. The Sexual Offences Act 2003 ("the 2003 Act") repealed the majority of the provisions relating to sexual offences in earlier legislation.
On 1 October 2004, in the Crown Court at Teesside, before the Recorder of Middlesborough, the appellant was convicted of an offence of Sexual Assault contrary to section 3 of the 2003 Act. On 29 October 2004, he was sentenced to a detention and training order for eighteen months. It was also proved that he had breached the supervision requirement of a twelve month detention and training order imposed for an offence of battery at the Teesside Magistrates' Court on 29 December 2003. For that breach he was sentenced to a further detention and training order for four months to run consecutively to the previous order.
Before setting out the parties' respective submissions on this appeal it is desirable to refer to the relevant provisions of the 2003 Act. In expressing our views of the relevant provisions it is right that we should acknowledge the assistance that we have received from an article in the Criminal Law Review for 2004 at page 328 by Professor Jennifer Temkin and Professor Andrew Asworth. In particular under the heading "Sexual Assault" at page 330 it is stated:
"Under the Sexual Offences Act 1956 indecent assault had to cover a wide range of activities. The effect of the 2003 Act is to reclassify forced oral sex as rape, and to reclassify other penetration of the vagina or anus as assault by penetration. The new offence of sexual assault is triable either way and carries a maximum sentence of 10 years on indictment."
The article goes on to identify the four elements of a sexual assault, which we will refer to in conjunction with the statutory provisions. As to the meaning of "sexual" it says at page 331:
"The term 'sexual', as used to describe penetration, touching or any other activity mentioned in the Act, is explained in section 78. This section cannot be said to provide a definition of the term; rather it sets out an approach for 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 the purposes of the offence of indecent assault."
The article goes on to identify the different situations under section 78 of the Act, which are more conveniently dealt with when we come to examine the actual provisions of section 78. However, this part of the article concludes by saying:
"…. as under the Court test, conduct, which on the face of it is not sexual, cannot be brought within that description by pointing to its circumstances and/or purpose. The Court test and its application have been criticised as 'vague' and unclear, but a superior alternative remains to be found. In practice, in most cases, it will not be difficult to apply the test in section 78(a). It will be in unusual cases only that section 78(b) will be brought into play. Whilst section 78 might require some fine-tuning, it was wise to have included a provision of this kind. In Canada a decision to exclude any such provision from the legislation has led to a costly proliferation of cases in which courts have been called upon to rule in what circumstances a particular assault may be described as sexual."
The expectation indicated in that part of the article that it will only be in unusual cases that section 78(b) will be brought into play is probably over-optimistic, as the facts of this case indicate.
The Statutory Provisions
Section 3(1) of the Sexual Offences Act 2003 provides:
"A person (A) commits an offence if —
(a) he intentionally touches another person (B),
(b) the touching is sexual,
( c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents."
Subsection (2) provides:
"Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents."
There is then a reference to sections 75 and 76, to which it is not necessary to refer. The section concludes by indicating that such an offence is punishable by a term of imprisonment not exceeding six months on summary conviction or a fine, and in the case of a conviction on indictment, by imprisonment for a term not exceeding ten years. In addition, certain other consequences may follow from a conviction, for example the requirements of notification under section 97 of the Act which can continue for a substantial period of time.
"Touching" in section 3 has to be considered together with section 79(8). The section provides:
" 79 Part 1: general interpretation
….
(8) Touching includes touching —
(a) with any part of the body,
(b) with anything else,
(c) through anything,
and in particular includes touching amounting to penetration."
"Sexual" is defined in section 78. It reads:
"For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that —
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual."
In this case we are concerned with section 78(b). Miss Egerton who appears on behalf of the Crown accepts that (a) has no application. The nature of the touching with which we are concerned was not inevitably sexual. It is important to note that there are two requirements in section 78(b). First, there is the requirement that the touching because of its nature may be sexual; and secondly, there is the requirement that the touching because of its circumstances or the purpose of any person in relation to it (or both) is sexual.
Miss Egerton agreed with the view of the court expressed in argument that if there were not two requirements in (b), the opening words "because of its nature it may be sexual" would be surplus. If it was not intended by the legislature that effect should be given to those opening words, it would be sufficient to create an offence by looking at the touching and deciding whether because of its circumstances it was sexual. In other words, there is not one comprehensive test. It is necessary for both halves of section 78(b) to be complied with.
It is no doubt because of this aspect of section 78(b) and the article in the Criminal Law Review that Mr West who appears on behalf of the appellant referred to R v Court. That case dealt with an alleged indecent assault. An assistant in a shop struck a 12 year old girl visitor twelve times, for no apparent reason, outside her shorts on her buttocks. The assistant was convicted. Both this court and the House of Lords dismissed the assistant's appeal. At pages 42B-43E of his speech Lord Ackner set out his general approach. On reading that passage it is understandable why the article should have made the comment to which we referred. It is quite clear to the court that the staged approach which we have observed in section 78 is reflected in Lord Ackner's speech. The only difficulty that we have with applying Lord Ackner's approach is that he referred to R v George [1956] Crim LR 52. In that case the prosecution relied on the fact that on a number of occasions the defendant had removed a shoe from a girl's foot. He had done so, as he admitted, because it gave him a perverted sexual gratification. Streatfeild J ruled that an assault became indecent only if it was accompanied by circumstances of indecency towards the person alleged to have been assaulted and that none of the assaults in that case (namely the removal or attempted removal of the shoes) could possibly amount to an indecent assault.
We would express reservations as to whether or not it would be possible for the removal of shoes in that way, because of the nature of the act that took place, to be sexual as sexual is defined now in section 78. That in our judgment may well be a question that it would be necessary for a jury to determine.
The fact that in section 78(b) there are two different questions which we have sought to identify complicates the task of the judge and that of the jury. If there is a submission of "no case" the judge may have to ask himself whether there is a case to be left to the jury. He will answer that question by determining whether it would be appropriate for a reasonable person to consider that the touching because of its nature may be sexual. Equally, the judge will have to consider whether it would be possible for a reasonable person to conclude, because of the...
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