Price, R. v

A touching which is merely incidental to removing or attempting to remove footwear is not, without more, an indecent assault. However, deliberate stroking of a complainant’s leg, rather than incidental contact with it, is capable of being indecent and may found the offence.

A trial judge need not direct a jury on a speculative factual possibility unsupported by the evidence. A misdirection concerning the relevance of a complainant’s fears will not render a conviction unsafe where the jury necessarily resolved the true factual issue on proper directions. A voluntary statement relevant to the alleged conduct may be admitted where its admission does not make the trial unfair.

R v Price appealed, with leave, against his conviction at the Crown Court at Kingston upon Thames for indecent assault. The complainant said that, while seeking to inspect an apartment, he knelt before her and deliberately stroked her legs below the knee before touching her boots. He denied touching her legs and said that he had touched only the boots because of his interest in women’s shoes.

The appeal challenged the directions on indecency, the absence of a direction on mistaken touching, the use of the complainant’s fears, and the admission of the appellant’s voluntary reference to a shoe fetish. The central issues were whether the alleged touching was capable of being indecent, whether any direction had been omitted or misstated, and whether the conviction remained safe.

1. Appeal dismissed. The conviction for indecent assault was safe.

2. The court accepted, for present purposes, the principle in R v George [1956] Crim.L.R 52 that the removal or attempted removal of a girl’s shoe cannot, by itself, amount to an indecent assault. That principle did not govern the facts found capable of acceptance here. The complainant’s evidence described deliberate stroking of her legs below the knee with both hands, followed by stroking of her boots. It was not merely incidental contact while attempting to remove footwear. If accepted, that evidence was capable of amounting to an indecent assault. The judge also correctly made clear that touching a boot alone would not itself constitute the offence.

3. There was no evidential basis for a direction that the appellant may mistakenly have thought that he was touching a high boot beneath the complainant’s trousers. His case was that he touched only the boot at the foot and did not touch her leg. A judge is not required, without an evidential foundation, to introduce such a possibility of his own motion.

4. The judge should not have told the jury that the complainant’s fears might throw light on the appellant’s manner. Nevertheless, the error did not affect the safety of the conviction. The jury had been directed to decide whether the appellant deliberately touched only the boots or also stroked the complainant’s legs, whether the touching lacked consent or a belief in consent, and whether it was indecent. Its verdict showed that it accepted the complainant’s account.

5. The appellant’s voluntary statement about his shoe fetish was properly admitted. It was volunteered in response to a custody question about medical problems and was expanded upon in interview. Its admission did not make the trial unfair.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2003] EWCA Crim 2405.

• Crown Court at Kingston upon Thames — convicted the appellant of indecent assault on 21 May 2002 and, on 26 July 2002, imposed a three-year community rehabilitation order with a condition to attend an accredited sex offenders programme.