The Need to Kill Off Zombie Law

AuthorCatarina Sjölin
Published date01 February 2017
Date01 February 2017
Subject MatterArticles
The Need to Kill Off Zombie
Law: Indecent Assault,
Where It Went Wrong
and How to Put It Right
Catarina Sjo
Nottingham Law School, Nottingham Trent University, Nottingham, UK
The law on indecent assault is currently misunderstood, leading to substantial injustice for some
who have been abused as children. The first half of the article explores the nature and causes of
these misunderstandings, discussing particularly the true nature of touching for indecent and
common assaults. In the second half the article argues that despite a correction of the law being
necessarily retroactive in effect it is not just permissible but necessary to make that correction.
Indecent assault, assault and battery, retroactivity, retrospectivity
In 1950 an adult man told a nine-year-old girl to touch his penis. She complied. Upon these facts, in the
case of Fairclough vWhipp,
Lord Goddard CJ in the Divisional Court held that although this was
‘disgusting’, it was not an indecent assault and the man’s conviction for that offence was quashed. The
principles from the decision—that (1) instructing V to touch D’s genitals is not an indecent assault, and
(2) neither is it an indecent assault if V complies—are still applied, most recently in 2015 by the Court of
Appeal in Dunn.
This article argues that the decision in Fairclough, together with three other decisions
in the 1950s involving commands by adults to children to touch the adults’ genitals (Beal vKelley,
DPP vRogers),
were wrongly decided in relation to (1) the meaning of touching, (2) the
Corresponding author:
Catarina Sjo
¨lin, 50 Shakespeare St, Nottingham NG1 4FQ, UK.
1. Fairclough vWhipp (1951) 35 Cr App R 138 DC.
2. Dunn [2015] EWCA Crim 724 CA.
3. Beal vKelley (1951) 35 Cr App R 128 DC.
4. Burrows (1951) 35 Cr App R 180 CCA.
5. DPP vRogers (1953) 37 Cr App R 137 DC.
The Journal of Criminal Law
2017, Vol. 81(1) 50–65
ªThe Author(s) 2017
Reprints and permissions:
DOI: 10.1177/0022018316685023
requirement of ‘hostility’ as an element of assault, (3) the role of consent in indecent assaults of children
and (4) the role of unlawfulness in assault. When these errors are understood the Fairclough line is left
unsupported and conduct in the paradigm situation– where adult D commands child V to make contact
with his/her genitals and also where V does as instructed—is properly classified as an indecent assault
(by assault or battery respectively).
This wrong turn in the law of indecent assault is not a matter of purely historical interest but a
continuing problem for the courts. Although all conduct which could be charged as indecent assault must
have occurred prior to midnight on 30 April 2004,
allegations concerning historical sexual abuse are
being made in ever-increasing numbers.
There is no reason to think that this trend will change in the
immediate future;
those who suffered from sexual offending as children may take many years to come
forward, particularly in familial cases where the desire to avoid family break-up or upset may lead
people not to complain until some family members have died. The paradigm situation has been
partially covered, since 1 January 1961, by the Indecency with Children Act 1960 (IWCA) s. 1 offence
of committing an act of gross indecency with or towards a child. This article will explain why the
IWCA is really no answer to the error at the heart of the Fairclough line and argue that the Court of
Appeal must confront and correct the mistakes in the Fairclough line and accept that conduct in the
paradigm situation constitutes indecent assault. Finally, the article contends that despite the retro-
spective nature of such a decision, it is the only proper decision which the appellate courts can take in
this situation.
Indecent Assault
It is common ground that indecent assault is common assault (assault or battery) aggravated by the
element of indecency.
The paradigm situation is unarguably indecent (as was accepted in Fairclough).
The errors appear when the cases consider the nature of assault in this context and it is important to
understand first how and why the Fairclough cases were decided as they were. The four cases were
decided between 1951 and 1953
and the very brief judgments were all given by Lord Goddard CJ.
6. When ss 14 and 15 of the Sexual Offences Act 1956 was repealed by the Sexual Offences Act 2003, Sched. 7 (Sexual Offences
Act 2003 (Commencement) Order 2004, SI 2004/874, art. 2).
7. Reporting rates for historical and current offending have been increasing since 2012, with the increase in reporting becoming
more pronounced in 2015. Office for National Statistics, Crime in England and Wales, Year ending September (Office for
National Statistics: London, 2015) Office for National Statistics online. Available at:
(accessed 12 April 2016) 49–50; Office for National Statistics, Crime Statistics, Focus on Violent Crime and Sexual Offences,
2013/14 (Office for National Statistics: London, 2015) Chapter 1, Available at:
statistics/focus-on-violent-crime-and-sexual-offences–2013-14/rpt-chapter-1.html?format¼print (accessed 7 January 2016)
Section 9. The term ‘historical’ is used to describe conduct which occurred one year or more before the date of report to the
police, so some of the ‘historical’ offending will be under the SOA 2003, but there will still be a number of allegations which
predate the SOA 2003.
8. The Office for National Statistics suggests that the ever-increasing number of reports of sexual offences is due to both better
police procedures and the recent reports, investigations and inquiries. Although Operations Yewtree and Midland may have
come to an end, the Independent Inquiry into Child Sexual Abuse is likely to continue for a number of years and cover the
whole country, with six regional offices (Office for National Statistics, Crime in England and Wales, Year ending September.
(Office for National Statistics: London, 2015). Available at:
eandjustice/bulletins/crimeinenglandandwales/yearendingseptember2015#sexual-offences (accessed 12 April 2016) 50).
9. See Beal vKelley (1951) 35 Cr App R 128 DC, quoting with approval from Archbold, 32nd edn, 1067, DPP vRogers (1953)
37 Cr App R 137 DC and Lord Griffiths in Court [1988] 1 AC 28 HL at 33.
10. The cases concern the earlier version of indecent assault found in the Offences against the Person Act 1861 ss 52 and 62 to
which consent could not be pleaded where V was aged under 16 (Criminal Law Amendment Act 1922, s. 1). The joint effect of
these provisions is the same as the offences of indecent assault against males and females under SOA 1965, ss 14 and 15
Sjo¨lin 51

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