R v H (Sexual assault: Touching)
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 2005 |
| Date | 01 February 2005 |
| Court | Court of Appeal (Criminal Division) |
COURT OF APPEAL Criminal Division
Before Lord Woolf, Lord Chief Justice, Mr Justice Davis and Mr Justice Field
Criminal law - sexual assault - touching clothing was sexual
A defendant who grabbed at the tracksuit bottoms worn by a female complainant had touched another person for the purposes of an offence of sexual assault.
In determining whether the touching was sexual within the meaning of section 78(b) of the Sexual Offences Act 2003 it was necessary to ask, first, whether the touching, because of its nature, might be sexual and, second, whether the touching, because of its circumstances or the defendant's purpose in relation to it, was sexual.
The Court of Appeal, Criminal Division so held in dismissing an appeal by H against his conviction at Teesside Crown Court (Judge Fox, QC and a jury) on October 1, 2004 of sexual assault, contrary to section 3 of the 2003 Act, for which he was sentenced, on October 29, 2004, to a detention and training order for 18 months.
Section 3 of the 2003 Act provides: "(1) 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…"
Section 78 provides: "… touching … is sexual if a reasonable person would consider that -…(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."
Mr Ian West, assigned by the Registrar of Criminal Appeals, for H; Miss Christine Egerton for the Crown.
THE LORD CHIEF JUSTICE, giving the judgment of the court, said that there were two requirements in section 78(b): first, that the touching, because of its nature, might be sexual and second, that the touching, because of its circumstances or the purpose of any person in relation to it, was sexual. Those were two distinct questions which had to be considered.
The nature of the touching referred to the actual touching that took place and, therefore, in considering whether the touching, because of its nature, might be sexual, the jury was not concerned with the circumstances before or after the touching or the purpose of the defendant in relation to the touching.
Their Lordships' attention had been drawn to section 62 of the 2003 Act, under which a person committed an offence if he committed any offence with the intention of committing a sexual...
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