Judgment in landmark case confirmed the law as it relates to the Sexual Offences Act

Thu, 10 Dec 2020

Judgment in landmark case confirmed the law as it relates to the Sexual Offences Act

The Court of Appeal today handed down Judgment in a landmark case that confirmed the law as it relates to the Sexual Offences Act. In a little used legal procedure the Attorney General had referred a point of law following a trial in which the defendant was acquitted. At trial the Judge had given directions as to what the Crown had to prove in order to make out the offence of the Sexual Assault, the AG disagreed with the directions given and thus sought clarification from the Court of Appeal.

The original case dealt with a man kissing a stranger on the train, the argument at trial was that the defendant had no sexual intention when he kissed the woman and was therefore not guilty of the offence of sexual assault.

The Crown’s position was that the offence of sexual assault was made out if the touching was intentional, as to whether it was sexual the jury had to be satisfied that the it was sexual if either the circumstances were such that it was sexual, or the defendant’s intention was sexual.

The Court of Appeal heard arguments from the Attorney General’s Counsel, Michelle Heeley QC on behalf of the acquitted defendant, and also an Amicus counsel appointed to assist the court.

Previous cases had produced mixed opinions, but then none had dealt with the issue specifically raised by the instant case. The Court of Appeal noted how important their judgment would be in determining how sexual offences were prosecuted going forward.

The hearing reviewed the history of the Sexual Offences Act 2003, and the 1956 predecessor Act, and discussed issues such as whether Parliament had intended to criminalise someone who had no intention to touch someone sexually, what could sexual circumstances be in the absence of an intention by the defendant, and should a defendant be criminalised if a jury found he did not have the requisite intention.

After careful consideration, and acknowledging that a conviction for a sexual offence carried with it a stigma and consequences beyond that of other offences, the court found that what was required for the prosecution of offences under s3 of the Act was that

  1. The defendant intentionally touched a person
  2. The touching was sexual
  • Sexual could be proved either by the prosecution making the jury sure that the circumstances were sexual OR that the defendant’s intention was sexual – they did not have to prove both.

Issues of consent were not dealt with in this case as these have previously been determined by the Court of Appeal in a myriad of cases.

The judgment will now be considered a leading authority and provides clear guidance on what must be proved for the offence of sexual assault to be made out.

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