“Whatever its Circumstances”: Odd Behaviour and Sexual Touchings
| DOI | 10.1177/00220183221101951 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Case Notes |
“Whatever its Circumstances”:
Odd Behaviour and Sexual
Touchings
R v Abdulahi [2022] EWCA Crim 412
Keywords
Sexual assault, sexual, touching, automatism, appeal
Section 78 Sexual Offences Act (SOA) 2003 describes the circumstances in which a penetration, touch-
ing or any other activity is treated as being “sexual”for the purposes of the SOA. It prescribes that such
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. Abdulahi concerns a relatively narrow circumstance where the question of whether the “odd
behaviour”of a defendant, brought about by low blood sugar, affected the application of the test in s
78. Closer scrutiny of Abdulahi also brings into question whether the law in s 78 was applied accurately.
The appellant, Abdulahi, (A), was charged with sexual assault, contrary to s 3 SOA 2003 (Count 1),
and common assault, contrary to s 39 Criminal Justice Act 1988 (Count 2). Having allegedly attempted to
punch a pedestrian (what would eventually become Count 2), A was taken into custody. A’s behaviour
was described as “grandiose and flamboyant or simply drunk”(at [3]) and, as a result, he was examined
by a nurse in the custody centre. The nurse, referred to in the judgment as “CS”, examined A and con-
cluded that his blood sugar level was low, measuring at 2.1 millimoles per litre (mmol) (the normal range
being between 5–8 mmol). Having prescribed glucose gel and food and drink, CS reassessed A four
hours later, retesting his blood sugar levels. Concluding that his blood sugar levels were within the
normal range, CS proceeded to examine A. CS accepted that A’s behaviour was still somewhat
strange, explaining that his mannerisms had not changed, with A still being flamboyant and saying
“odd things”. Despite this, however, A looked better, was able to communicate with CS, and understood
why he was in the medical room.
During the examination, A was alleged to have raised his arm, and placed the back of his hand on CS’
right breast. Whilst it was confirmed by CS that no grabbing of the breast took place, the touching did last
a number of seconds, with CS in evidence contending that it could not have been accidental. CS reported
the matter to the police; A was subsequently charged with sexual assault.
At trial, A pleaded not guilty. In respect of Count 1 (the alleged sexual assault), A contended that he
did not intentionally touch CS’breast. Rather, A accepted that he may have moved his arms around and,
as a result, accidentally brushed against CS. A contended that whilst he had no recollection of the matter,
if any such touching did take place, it was entirely accidental. The prosecution’s case was that A’s touch-
ing was deliberate. In respect of Count 2 (the alleged common assault), A denied that he had attempted to
Case Note
The Journal of Criminal Law
2022, Vol. 86(3) 216–220
© The Author(s) 2022
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DOI: 10.1177/00220183221101951
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