H, R. v [2005] EWCA Crim 732

[2005] EWCA Crim 732Case No 2004/06152/C2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of Justice, The Strand London WC2A 2LLDate Tuesday, 1 February 2005
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(The Lord Woolf of Barnes)
MR JUSTICE DAVIS
and
MR JUSTICE FIELD
Between
R E G I N ACrown- v -
Between
H
Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
MR I WEST appeared for APPLICANTMISS C EGERTON appeared for CROWN
J U D G M E N T (As Approved by the Court)THE LORD CHIEF JUSTICE:
[1]The Registrar has referred to the full court this application for leave to appeal against conviction. He granted a representation order for counsel, namely Mr West who has appeared on behalf of the applicant, for the preparation and presentation of the application and, if granted, the appeal itself. At the beginning of the hearing of the case we granted leave to appeal and Mr West then made his submissions in support of the appeal.[2]This is the first appeal against conviction under the provisions contained in section 3 of the Sexual Offences Act 2003, which came into force on 1 May 2004. The Sexual Offences Act 2003 (“the 2003 Act”) repealed the majority of the provisions relating to sexual offences in earlier legislation.[3]On 1 October 2004, in the Crown Court at Teesside, before the Recorder of Middlesborough, the appellant was convicted of an offence of Sexual Assault contrary to section 3 of the 2003 Act. On 29 October 2004, he was sentenced to a detention and training order for eighteen months. It was also proved that he had breached the supervision requirement of a twelve month detention and training order imposed for an offence of battery at the Teesside Magistrates’ Court on 29 December 2003. For that breach he was sentenced to a further detention and training order for four months to run consecutively to the previous order.[4]Before setting out the parties’ respective submissions on this appeal it is desirable to refer to the relevant provisions of the 2003 Act. In expressing our views of the relevant provisions it is right that we should acknowledge the assistance that we have received from an article in the Criminal Law Review for 2004 at page 328 by Professor Jennifer Temkin and Professor Andrew Asworth. In particular under the heading “Sexual Assault” at page 330 it is stated:
“Under the Sexual Offences Act 1956 indecent assault had to cover a wide range of activities. The effect of the 2003 Act is to reclassify forced oral sex as rape, and to reclassify other penetration of the vagina or anus as assault by penetration. The new offence of sexual assault is triable either way and carries a maximum sentence of 10 years on indictment.”
The article goes on to identify the four elements of a sexual assault, which we will refer to in conjunction with the statutory provisions. As to the meaning of “sexual” it says at page 331:
“The term ‘sexual’, as used to describe penetration, touching or any other activity mentioned in the Act, is explained in section 78. This section cannot be said to provide a definition of the term; rather it sets out an approach for determining whether the activity in question is sexual where this may be in doubt. This approach appears closely to mirror the decision in Court [1989] AC 28, in which the House of Lords distinguished three types of case in order to decide when an activity could be designated indecent for the purposes of the offence of indecent assault.”
The article goes on to identify the different situations under section 78 of the Act, which are more conveniently dealt with when we come to examine the actual provisions of section 78. However, this part of the article concludes by saying:
“.... as under the Court test, conduct, which on the face of it is not sexual, cannot be brought within that description by pointing to its circumstances and/or purpose. The Court test and its application have been criticised as ‘vague’ and unclear, but a superior alternative remains to be found. In practice, in most cases, it will not be difficult to apply the test in section 78(a). It will be in unusual cases only that section 78(b) will be brought into play. Whilst section 78 might require some fine-tuning, it was wise to have included a provision of this kind. In Canada a decision to exclude any such provision from the legislation has led to a costly proliferation of cases in which courts have been called upon to rule in what circumstances a particular assault may be described as sexual.”
The expectation indicated in that part of the article that it will only be in unusual cases that section 78(b) will be brought into play is probably over-optimistic, as the facts of this case indicate.

The Statutory Provisions

[5]Section 3(1) of the Sexual Offences Act 2003 provides:
“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.”
Subsection (2) provides:
“Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.”
There is then a reference to sections 75 and 76, to which it is not necessary to refer. The section concludes by indicating that such an offence is punishable by a term of imprisonment not exceeding six months on summary conviction or a fine, and in the case of a conviction on indictment, by imprisonment for a term not exceeding ten years. In addition, certain other consequences may follow from a conviction, for example the requirements of notification under section 97 of the Act which can continue for a substantial period of time.[6]“Touching” in section 3 has to be considered together with section 79(8). The section provides:
“79 Part 1: general interpretation .... (8) Touching includes touching -- (a) with any part of the body, (b) with anything else, (c) through anything, and in particular includes touching amounting to penetration.” .... (8) Touching includes touching -- (a) with any part of the body, (b) with anything else, (c) through anything, and in particular includes touching amounting to penetration.”
[7]“Sexual” is defined in section 78. It reads:
“For the purposes of this Part (except section 71), penetration, touching or any other 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.” (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.”
[8]In this case we are concerned with section 78(b). Miss Egerton who appears on behalf of the Crown accepts that (a) has no application. The nature of the touching with which we are concerned was not inevitably sexual. It is important to note that there are two requirements in section 78(b). First, there is the requirement that the touching because of its nature may be sexual; and secondly, there is the requirement that the touching because of its circumstances or the purpose of any person in relation to it (or both) is sexual.[9]Miss Egerton agreed with the view of the court expressed in argument that if there were not two requirements in (b), the opening words “because of its nature it may be sexual” would be surplus. If it was not intended by the legislature that effect should be given to those opening words, it would be sufficient to create an offence by looking at the touching and deciding whether because of its circumstances it was sexual. In other words, there is not one comprehensive test. It is necessary for both halves of section 78(b) to be complied with.[10]It is no doubt because of this aspect of section 78(b) and the article in the Criminal Law Review that Mr West who appears on behalf of the appellant referred to R v Court. That case dealt with an alleged indecent assault. An assistant in a shop struck a 12 year old girl visitor twelve times, for no apparent reason, outside her shorts on her buttocks. The assistant was convicted. Both this court and the House of Lords dismissed the assistant’s appeal. At pages 42B-43E of his speech Lord Ackner set out his general approach. On reading that passage it is understandable why the article should have made the comment to which we referred. It is quite clear to the court that the staged approach which we have observed in section 78 is reflected in Lord Ackner’s speech. The only difficulty that we have with applying Lord Ackner’s approach is that he referred to R v George [1956] Crim LR 52. In that case the prosecution relied on the fact that on a number of occasions the defendant had removed a shoe from a girl’s foot. He had done so, as he admitted, because it gave him a perverted sexual gratification. Streatfeild J ruled that an assault became indecent only if it was accompanied by circumstances of indecency towards the person alleged to have been assaulted and that none of the assaults in that case (namely the removal or attempted removal of the shoes) could possibly amount to an indecent assault.[11]We would express reservations as to whether or not it would be possible for the removal of shoes in that way, because of the nature of the act that took place, to be sexual as sexual is defined now in section 78. That in our judgment may well be a question that it would be necessary for a jury to determine.[12]The fact that in section 78(b) there are two different questions which we have sought to identify complicates the task of the judge and that of the jury. If there is a submission of “no case” the judge may have to ask himself whether there is a case to be left to the jury. He will answer that question by determining whether it would be appropriate for a reasonable person to consider that the touching because of its nature may be sexual. Equally, the judge will have to consider whether it would be possible for a reasonable person to conclude, because of the circumstances of the touching or the purpose of any person in relation to the touching (or both), that it is sexual. If he comes to the conclusion that a reasonable person could possibly answer those questions adversely to the defendant, then the matter would have to be left to the jury.[13]We would suggest that in that situation the judge would regard it as desirable to identify two distinct questions for the jury. First, would they, as twelve reasonable people (as the section requires), consider that because of its nature the touching that took place in the particular case before them could be sexual? If the answer to that question was “No”, the jury would find the defendant not guilty. If “Yes”, they would have to go on to ask themselves (again as twelve reasonable people) whether in view of the circumstances and/or the purpose of any person in relation to the touching (or both), the touching was in fact sexual. If they were satisfied that it was, then they would find the defendant guilty. If they were not satisfied, they would find the defendant not guilty.[14]In that suggested approach the reference to the nature of the touching in the first half refers to the actual touching that took place in that case. In answering the first question, the jury would not be concerned with the circumstances before or after the touching took place, or any evidence as to the purpose of any person in relation to the touching.[15]There is one other section to which it is necessary to draw attention. Section 62 “Committing an offence with intent to commit a sexual offence” so far as relevant provides:
“(1) A person commits an offence under this section if he commits any offence with the intention of committing a relevant sexual offence.” (A relevant sexual offence includes a sexual assault.) “(3) A person guilty of an offence under this section is liable on conviction on indictment, where the offence is committed by kidnapping or false imprisonment, to imprisonment for life. (4) Unless subsection (3) applies, a person guilty of an offence under this section is liable -- (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”
We draw attention to section 62 because it appears to us that, although it may be primarily directed to the sort of circumstances referred to in section 62(3), it is capable of applying to a situation where the first requirement of section 78(b) cannot be established, but where what took place was certainly with the intention of committing a relevant sexual offence. If a person therefore committed an assault which does not come within section 3, but he had the intention of committing, for example, a sexual assault of some nature, then he could appropriately be charged under section 62. (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years.”

The prosecution case

[16]On 1 July 2004, at approximately 10pm the complainant went to walk her dog and to post a letter. She had to walk across some fields and along a quiet path. She encountered a young man who asked her the time. She was not wearing a watch, but thought that it was about 10.20pm and she made an appropriate response. The man said “Do you fancy a shag?” That remark was ignored by the complainant, who continued on her way. As she reached the corner of the street in which she lived, the man who was now right beside her asked if she was shy. He then grabbed her tracksuit bottoms by the fabric in the area of the right pocket and attempted to pull her towards him. She said, “What are you doing?” The man attempted to place his hand over her mouth. She backed away, broke free of his grip on her clothing and prevented him from touching her mouth. She ran to her home which was nearby.[17]Subsequently, having complained to the police, the complainant identified the appellant as her assailant at a video image parade. In 2000 she had worked in the reception of a pupil referral unit, which the appellant had attended. At the trial she said that she had recognised the face of her attacker and remembered his name. The complainant first mentioned this in an additional statement she made on the morning the trial commenced. She stated that she had mentioned the identity of her assailant to the police woman who had driven her to and from the identification suite, but the officer concerned had no recollection of this.[18]The appellant was arrested on 3 July 2004. In interview he denied being the assailant. He said that he had spent the evening of 1 July in the house of a friend, whose name he gave, from about 6pm onwards, leaving at about 10.30pm, although he was not entirely certain about the time. The house was a couple of streets distant from where the complainant lived. He said that he left the house on a couple of occasions to go to a shop. He had not crossed the relevant road. He had not entered the shop himself, but on the first occasion he had sent a woman called Jemma Hebb, and on the second, Gary Watson to the shop on his behalf. This was because he was under age to buy alcohol. He also said that after leaving the house with a friend by the name of Gary Collins he bumped into two other friends, David Smith and Christopher Collins, who were sitting in a car at the end of the road. He spoke to them for at least ten minutes. He had not been anywhere near the playing fields. He therefore identified an alibi defence in giving that statement to the police.[19]The prosecution called three witnesses in addition to the complainant and the relevant police evidence. The first was the man Christopher Collins. He said that on 1 July 2004 he had driven the appellant with two friends; that they had returned about 8.15pm because of the appellant’s tagging requirements; that they had dropped the appellant off at his mother’s address at about 9pm; that he saw the appellant again at about 9.45pm and spoke to him for about ten minutes; that he accompanied the appellant to his (the appellant’s) mother’s home, but had to leave at about 10.05pm or 10.10pm to comply with his tagging requirements. In cross-examination he said that although he could not put this in his statement he might have left the appellant at about 10.30pm or 10.45pm. There was a suggestion that Collins might have winked at the appellant when entering court. The judge gave a careful direction to the jury as to how to approach this suggestion. His direction was perfectly fair and appropriate.[20]The next witness was David Smith. He also said that he and Collins had dropped off the appellant at his mother’s address at about 9.30 or 9.45pm. He said that they had seen the appellant again at about 10.15pm. They had talked with him for about 20 minutes until 10.35pm or 10.40pm.[21]The third witness, Jemma Hebb, denied going into the shop on behalf of the appellant. Her evidence was therefore inconsistent with his.[22]The police confirmed that the appellant’s previous convictions were not of a sexual nature.[23]As the end of the prosecution case there was a submission of no case to answer. Two arguments were advanced by Mr West on behalf of the appellant. The first was based upon the interpretation of the statutory provisions of the 2003 Act. He submitted that the touching of the tracksuit bottoms alone did not amount to the touching of another person.[24]The judge rejected that submission. We consider that he was right to do so. Where a person is wearing clothing we consider that touching of the clothing constitutes touching for the purpose of the section 3 offence.[25]As against that approach Mr West relied on section 79(8) (set out above). He submits that under section 79(8)(c) touching through anything (through clothing), if pressure in some form is not brought against the body of the person concerned, there cannot be touching; there has to be some form of touching of the body of the individual who is alleged to have been assaulted, even if it be through clothing. Mr West submits that, having regard to the complainant’s evidence in this case, there was no such touching.[26]It is important to note that the opening words of section 79(8) are “touching includes touching” and in particular “through anything”. Subsection (8) is not a definition section. We have no doubt that it was not Parliament’s intention by the use of that language to make it impossible to regard as a sexual assault touching which took place by touching what the victim was wearing at the time.[27]The second unsuccessful submission made by Mr West for the case to be withdrawn from the jury was as to whether anything occurred which a reasonable person could regard as sexual within the meaning of the Act. The judge’s view was that there were here clearly circumstances in which the offence was alleged to have occurred, including the words alleged to have been spoken beforehand, which could make the actions which took place properly to be regarded as being sexual. In his approach at that time, and indeed in his summing-up, the judge did not take a two stage approach to section 78(b). He looked at the matter as a whole. The problem about that approach is that in a borderline case a person’s intention or other circumstances may appear to show that what happened was sexual, although their nature might not have been sexual. For the reasons we have already given that approach is not one which we regard as appropriate, although we recognise that in the great majority of cases the answer will be the same whether the two stage approach is adopted or the position is looked at as a whole.[28]The judge having rejected the submission of no case to answer, the appellant elected to call no evidence. The appropriate warning was given to the defendant as to the possible consequences of that under section 35 of the Criminal Justice and Public Order Act 1994. Section 35 provides: “(1) At the trial of any person .... for an offence, subsections (2) and (3) below apply unless --(i) the accused’s guilt is not in issue;(ii) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence; but subsection (2) below does not apply if, at the conclusion of the evidence for the prosecution, his legal representative informs the court that the accused will give evidence or, where he is unrepresented, the court ascertains from him that he will give evidence. (2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment [with a jury], in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question. (4) This section does not render the accused compellable to give evidence on his own behalf, and he accordingly shall not be guilty of contempt of court by reason of a failure to do so. ....” (i) the accused’s guilt is not in issue; (ii) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;[29]In perfected grounds of appeal prepared by Mr West it is said, first, that the judge was in error in declining to stop the case on the basis that there was here no evidence of a sexual assault that could properly be left to the jury. We have already indicated that we do not consider that that contention has substance. In support of the failure of the judge to stop the case, the appellant also relies on the lack of satisfactory evidence of identification of the appellant and the weakness of the prosecution evidence as a whole. In relation to the latter contention, the appellant relies on the fact that two of the witnesses called by the Crown gave evidence which would support his alibi. He submitted that following R v Shippey [1988] Cr LR 767 it is inappropriate to “take the plums without the duff”. It seems to us, however, that the judge looked at the situation as a whole and did not fall into the Shippey error. The fact that witnesses are called on behalf of the prosecution does not mean that either the judge or the jury have to accept that evidence. They can reject it if they consider it is appropriate to do so.[30]The next matter of which complaint is made is that the judge here wrongly permitted an adverse inference to be drawn under section 35 because of the appellant’s failure to give evidence. It was Mr West’s contention that, having regard to the witnesses whom the prosecution called and who gave the times which they had been with the appellant, it was not possible to say that this was not a case which had sufficient strength to require the appellant to give an explanation for his alleged involvement. The matter was dealt with by the judge in his summing-up between lines 23 on page 14 and line 15 on page 15. We consider that that was a perfectly satisfactory direction in the circumstances. The judge was required to explain clearly to the jury the application of section 35. In our view he did so.[31]It is said that the judge misdirected the jury, first of all, as to the elements of the offence of sexual assault, in particular “touching” and “sexual”. Further, he withdraw the issues of fact which were entirely matter for the jury as to whether or not the facts spoken of by the victim established those elements of the offence. Reference is made to pages 5, line 28 and page 7, line 14 of the summing-up. Miss Egerton on behalf of the Crown accepts that there was a failure of the judge to identify the separate parts of section 78(b). He dealt with section 78(b) as a whole. We have had the advantage of fuller argument than the judge had. Miss Egerton did not make the concessions to the judge that she made to us. However, having regard to the facts of this case we do not think that the failure to deal with the two parts of section 78(b) separately could have had any adverse effect upon the safety of the conviction.[32]Next it is said that if a section 35 direction should have been given, it should have been accompanied by a further direction which “effectively told the jury not to draw the adverse inference”. If that was a requirement which applied to this summing-up, it would clearly indicate that no section 35 direction should have been given to the jury. Our view is that the complainant’s allegations required some explanation from the appellant if that was going to be challenged before the jury. The other alibi evidence provided by the witnesses called on behalf of the Crown, as Miss Egerton submitted, could be treated with considerable reservations by the jury. There was a need for a clear direction by the judge in these circumstances. We have carefully considered the terms of the summing-up in this regard. We consider that they are perfectly satisfactory. They may not follow to the letter the specimen direction provided by the Judicial Studies Board, but they give effect in general terms to that specimen direction. It was appropriate that a section 35 direction was given. That being so, we do not find that there is any substance in this complaint of the summing-up.[33]Next, it is suggested that the judge’s identification directions were inadequate and/or misleading. Various matters are relied upon. The only matter that we regard as having substance so far as those complaints are concerned is the submission which was made by Mr West which was based upon R v Nash (21 October 2004 No 2004/01079/D1). In its judgment delivered by Hedley J, this court referred to the desirability of explaining to a jury the experience of the courts that witnesses who to all intents and purposes appear to be convincing witnesses as to identification may be wrong. He said that it seemed to that court that the specimen direction advised by the JSB is the briefest permissible summary of the dangers inherent in identification evidence. He added, however:
“Of course, exact words do not matter, but the trial judge must ensure that the full force of the Turnbull direction is conveyed to the jury in whatever words are chosen.”
It appears to us that it would have been preferable if in his summing-up the judge had referred to the fact, which is correct, that it is within the experience of the court that there are particular dangers with identification evidence because a witness who is perfectly honest may appear convinced of the truth of his or her identification even though the identification is incorrect. That was not done here. However, the judge gave very careful warnings to the jury. There are a number of warnings. The great majority of his directions on identification were unimpeachable and so the failure is limited to the absence of the words of caution to which we have just referred.[34]It is important to note that in this case if the complainant was right, she was identifying somebody who was already known to her and was admittedly in the vicinity. Her evidence to that effect was not uncontroversial because of her failure to mention it in her earlier statements and because she said she had made it to a police woman, although that police woman could not corroborate this fact. However, the complainant’s shortcomings in the latter regard were mentioned in the rehearsal of the evidence. Looking at the matter as a whole, although we do not conceal our concern in this regard we have come to the conclusion that this matter in itself does not mean that the conviction is unsafe.[35]There is a further complaint that the judge gave a Lucas direction. This again is linked to his treatment of the witnesses whom the Crown called, who gave support to the appellant’s alibi, and the third witness who dealt with a time before the relevant time. Cross-examination of those witnesses revealed more supportive evidence on behalf of the appellant. However, it was for the jury to make up their own mind as to the weight they attached to that evidence. They obviously attached little weight to that evidence. The evidence was relied on by the Crown to show that the appellant was telling lies not about the matters directly connected with the alleged assault, but matters on the periphery of events. Often it is only in relation to the peripheral events that unreliability of an account can be established. Having regard to the conflicts between what the appellant had said to the police and what the witnesses said, it seems to us that it was appropriate for a Lucas direction to be given to the jury. The form of the direction was perfectly appropriate. There is therefore no substance in that point.[36]Looking at the case as a whole, our conclusion is that, although there are shortcomings which we have identified in relation to the complaints which the appellant had made, they are not of the significance which would justify us interfering with the conviction. Each member of the court is satisfied that the conviction is safe. Accordingly the appeal will be dismissed.[37]It only remains for us to acknowledge our indebtedness to counsel on behalf of the Crown and on behalf of the appellant. Particular gratitude should be expressed to Mr West who has obviously taken great care that the court had before it every possible point on behalf of the appellant.[38]Mr West, I think that you have the appropriate order. According to the Criminal Appeal Office summary, you have a representation order for the preparation and presentation of the application and, if granted, the appeal itself. If that be right, I do not think you need anything else. But in the unlikely event that you do need anything else, you are granted it. MR WEST: I am very grateful for your concern in that regard, but I think I am covered.

Cited in 5 later judgments