R v Sutton (Terence)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 28 April 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0428-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 265/A2/77 |
| Date | 28 April 1977 |
[1977] EWCA Crim J0428-8
The Lord Chief Justice of England (Lord Widgery)
Mr. Justice Park
and
Mr. Justice Parker
No. 265/A2/77
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. C. CONWAY appeared for the Appellant.
MR. R. A. FITZPATRICK appeared for the Crown.
On 15th December last, at Woodford Crown Court before His Honour Judge Sir Harold Cassell, the Appellant pleaded guilty to possessing obscene articles for publication for gain, and he was convicted on three counts of indecent assault on a male person. The jury was discharged from returning a verdict on three further counts, each of which alleged indecency with a child, and it was ordered that those counts remain on the file. On each of the counts upon which he was convicted, the Appellant was sentenced to twelve months' imprisonment concurrent. The material facts may be shortly stated.
The Appellant was the coach and manager of a football club for small boys. Three of the boys who played for the club, all aged eleven or twelve, were taken by the Appellant to his home in order that he might photograph them. Each of them was photographed partially unclothed and two of them were photographed in the nude. The photographs, whether partially clothed or in the nude, were taken so as to draw attention to the boys' genitals. The Appellant's purpose was to sell the photographs to Scandinavian Magazines. The Appellant remained fully clothed throughout and did not invite any of the boys to touch him in any way at all, nor did he stroke or fondle any of the boys. He did, however, touch each of them on the hands, arms, legs or torso for the purpose of indicating how he wished them to pose. These actions were not threateming or hostile in any ordinary sense of the word and none of the three boys showed any unwillingness, indeed they consented.
There can be no doubt that the Appellant's conduct was utterly shameful, the more so as he abused his position in order to exploit these three small boys who were in his charge, so that he might obtain financial regard for himself by selling photographs of them to foreign magazines in which the photographs would be published for the enjoyment of those who gain sensual pleasure from gazing at the bodies and particularly the genitals of small boys. However disgusting his conduct may have been, however, the question which arises for examination is whether the touching which took place amounted in law to indecent assault.
The learned Judge ruled that any touching in the knowledge that the other party was not consenting was an assault and that, in the case of persons under sixteen, the law did not permit consent if the touching was accompanied by circumstances of indecency.
It is submitted to us, as it was to the learned Judge, that this was incorrect; that before there can be an assault at all there must be some threatening or hostile act and that, unless this is shown, the question of indecency never arises. If this submission is correct it would mean that, if an innocent child had sufficient trust in an adult to co-operate when asked, the adult could most shamefully abuse him without being guilty of indecent assault. On the other side, if the learned Judge is right it would mean that, if the circumstances were generally indecent, a person might be guilty of indecent assault if he did no more than brush a wasp off a child's neck at the child's specific request. Both results offend against commonsense.
We turn to consider what assistance can be gained from the authorities. Prior to the Sexual Offences Act, 1956, a series of decisions made it plain that, before there can be an indecent assault, there must be. an assault; that an assault involves a hostile or threatening act; and that an act will, for these purposes, be hostile if the person alleged to be assaulted demonstrates unwillingness but not if,...
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The People (at the suit of the DPP) v FN (A Minor)
...striking her buttocks is an affront to that child's sexual integrity and is objectively an indecent assault. Nor should a case such as R v Sutton (Terence) [1977] 3 All ER 476 be accepted as authoritative; since it involved a man photographing boys stripped in order to be presented as imag......
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