Court of Appeal (Criminal Division).

Court of Appeal (Criminal Division)

Regina v B.T.

[2003]

Lord Justice Malin, Mr Justice Stevens and Mr Justice Coughlin

The defendant, E, a boy aged 12 at the time of the offence, was charged with sexually assaulting his cousin, a 16 year old girl contrary to section 5 of the Sexual Offences Act 2003. On 26th February 2004, the appellant was convicted of sexual assault contrary to clause 2 of the Sexual Offences Bill 2003. He appeals against this judgement with the leave of the Full Court.

APPEAL from the Crown Court

The facts are stated in the opinion of Lord Justice Malin.

This is an appeal from the judgement of Heaton J which sets out with care the background to the application and his findings thereon. I will start this judgement by setting out what he said. He said this:

“On 16th January 2004 the applicant was accused of sexually assaulting his cousin. The circumstances of this assault were as follows; the appellant, aged 12 years at the time of the assault, is an orphan who attends an all-boys preparatory school run by a strict religious sect and spends the school holidays with his aunt, uncle and cousin F, who is 16 years old. He found a book called “The Joy of Sex” and was intrigued by the anatomical differences between men and women which are shown in the book.”

“After looking at the pictures in this book, he lifted the skirt of his sleeping cousin and pulled down her knickers. He proceeded to place his hand on her pubic area and then her private parts. At this point, his aunt, who has entered the room screamed, awaking F. The applicant disputes that his touching was in no way sexual and he was not sexually aroused by it.”

I interpolate that the meaning of the word “sexual” in section 5 (1)(b) of the Sexual Offences Act 2003 is a crucial point in this case.

The following points of law of general public importance were involved in the decision, namely:

“(a) Is a defendant entitled to be acquitted of the offence of sexual assault contrary to section 5 of the Sexual Offences Act 2002, if the touching could be defined as “non-sexual”? (b) If yes, what grounds must this belief be held on?”

I will now outline the main defences of the applicant and prosecuting authority.

Marcus Holden QC and Victoria Webb for E. It is a presumption of common law that actus reus is an essential ingredient of a criminal offence, and for the actus reus of this offence to be established, the meaning of “sexual” in section 5 of the Sexual Offences Act 2003 must be defined. There is an express indication in section 5 (1)(b) of the Sexual Offences Act 2003 that the touching of another person must be “sexual”. According to section 80 of the Sexual Offences Act 2003, it is clear that E’s touching of F was not sexual. Section 80 states that “touching or any other activity is sexual if (a) from its nature, a reasonable person would consider that it may (at least) be sexual, and (b) a reasonable person would consider that it is sexual because of its nature, its circumstances or the purpose of any person in relation to it, or all or some of those considerations.”

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The “nature” of the touching must then be examined. The nature of E’s touching of F would clearly not be considered to be sexual by a reasonable person. E obviously led an extremely sheltered life with no sex education and would be considered to be generally naïve. As a result of E’s background, he had never acclimatised to a reasonable person’s morals, especially in the area of accepted behaviour with females. The book “The Joy of Sex” was probably the first insight he had to relationships between men and women, and indeed the differences between their bodies. Therefore, he must have considered the compromising pictures in the book to be normal behaviour and did not believe he was acting wrongly by touching F, nor did he achieve any sexual gratification by touching F, he was simply intrigued by what he had learnt. So the nature of E’s touching was an investigation of what he believed was normal behaviour and was in no way “sexual”. Without this essential element of actus reus, E cannot be liable for sexual assault.

Christopher Fisher QC, Anthony Stanley and Samuel Harris for the prosecuting authority. There is a common law presumption that statutory interpretation requires an examination of the original statute, of which section 80 provides clear guidance. The conduct of E should not be judged according to the morals and beliefs of E, but of a “reasonable person” as clearly stated throughout the Sexual Offences Act 2003. The indecent touching of F would, by any reasonable person’s standards be seen as “sexual”. The act of lifting F’s skirt and pulling down her knickers and placing a hand on her private parts, is by its very nature, sexual. The reason behind section 5 (1)(b) is to eliminate legitimate touching of persons, for reasons such as clinical examinations or in routine medical operations. The circumstances of E’s assault are far removed from any that may be defined as acceptable and non-sexual.

Examining section 5 further, we can see that E’s conduct satisfies all of the requirements for liability for sexual assault, paying particular attention to subsection 2:

“This subsection applies if A does not believe that B consents (whether because he knows that B does not consent, gives no thought to whether B consents, or otherwise).”

E made no attempt to investigate whether F consenting to the touching. He either realised that she would not consent, or gave no thought to the matter. Considering this, it is obvious that E must have some sort of morals to make the decision to continue with the activity regardless of F’s lack of consent. Upon finding the book “The Joy of Sex” and being intrigued by the pictures, he must have realised that such activity involves participation and consent by both man and woman. Instead, he decided to ignore this, demonstrating clear consciousness of what is acceptable and unacceptable behaviour.

In reference to Justice Heaton’s comments on points of law of general public importance, I would say that an authority must be established to provide a definition of “sexual” for the Sexual Offences Act 2003. For this I would look back at the previous authority concerning sexual offences, the Sexual Offences Act 1956. This outlined the offence then described as “indecent assault”:

“(1) It is an offence, subject to the exception mentioned in subsection (3) of this section, for a person to make an indecent assault on a woman.”

In order to establish a definition of “sexual” we must look at how this has evolved from the 1956 Act. Here, the offence was termed as “indecent assault”. For the actus reus of this offence, the assault must be “accompanied by circumstances of indecency”. This presents the similar issues to those which face us now. The test of what is indecent is whether right-minded persons would consider the conduct indecent as being “offensive to contemporary standards of modesty and privacy” see Court [1989] AC 28. A further consideration must be that at the time of the assault, F was sleeping. According to the Sexual Offences Act 1959, if the assault is in the nature of a technical assault, it is necessary for the victim to be aware of the circumstances of indecency but if the assault is a battery there is no need to prove such awareness. The Sexual Offences Act 2003 was intended to improve upon the Sexual Offences Act 1956, not repeat it so we cannot apply exactly the same tests of indecency as one could argue that the term “sexual” is in many ways different to “indecent”. However, the test of “offensive to modern standards of modesty and privacy” is crucial in establishing a way of deciding liability. I agree with Mr Fisher QC that a wide definition of the term “sexual” must be established in order for section 5 of the 2003 Act to withhold its authority. Taking a narrow definition would allow for acts which would normally be defined as assaults and be punishable behaviour to go unpunished, leading to an injustice in this, and many cases to come.

Mr Holden QC’s argument that the touching was not “sexual” is unfounded. E’s own thoughts and beliefs constitute the mens rea of the act, and do not influence the actus reus. According to the Oxford English Dictionary, there are numerous meanings of the adjective “sexual”, one giving reference to sexual organs and the differences between the sexes. E’s application was based on the fact that Justice Heaton misdirected the jury about the meaning of section 5 of the Sexual Offences Act 2003. With respect, directing the jury to give one exclusive meaning to the word “sexual” would not be productive. Instead the jury must decide on their own meanings according to the statute and their own beliefs and standards. Would the touching of a person’s private parts without their consent cannot be defined as sexual according to a reasonable person’s standards?

We must not ignore that E represents that he found the touching in no way gratifying. However, this is not a requirement of the Sexual Offences Act 2003 section 5. It is the very fact that the act was sexual, touching sexual organs without consent which by contemporary standards of morality and privacy is clearly not acceptable. See George [1956] Crim LR 52, there was not an indecent assault where D attempted to remove V’s shoe even though this was something he found sexually gratifying. This was because there were no circumstances of indecency. In E’s case, the act was indeed indecent and could be described as “sexual”, even though he may not have been sexually gratified by the experience, so he is liable for sexual assault.

Returning to Justice Heaton’s comments on the points of law of general public importance which were involved in the decision, namely:

Examining Justice Heaton’s second point, we can uncover the final deciding point of this case. On what grounds did E hold the belief that his touching was non-sexual? I would say that this point whilst relevant, is not of the greatest importance. The most important question which we must ask is; on what grounds did E believe that he could pursue with the touching without F’s consent? The fact that E led a sheltered life does not provide him with lawful justification for not obtaining his cousin’s consent.

There is nothing in section 5 that allows for E’s conduct, and so I have no choice but to agree with my learned friend Justice Heaton. Having clarified the issue of the meaning of sexual to include all assault that right-minded persons would consider as being “offensive to contemporary standards of modesty and privacy”. It would have been a strange result to conclude that Parliament had created section 5(1)(b) to exclude cases where the touching had not lead to sexual gratification of the defendant, but could still be termed as “sexual” by reasonable standards.

For these reasons, I dismiss the appeal.

I add that any other conclusion would result in the unsatisfactory position that the offence of sexual assault would lose much of its authority and provide for a leeway for future offenders to escape conviction.