H, R. v

For sexual assault under Sexual Offences Act 2003, section 78(b) imposes two cumulative questions. The fact-finder must first decide whether the touching, by its nature alone, may be sexual. Only if it does may the fact-finder decide whether the circumstances or a person’s purpose made it sexual. A judge considering a submission of no case, and a jury deciding guilt, should address those questions separately.

Touching a person’s clothing can amount to touching that person for the offence. Section 79(8) is inclusive, not exhaustive. A failure to separate the two limbs of section 78(b) will not require a conviction to be quashed unless it affects its safety.

The appellant was convicted at the Crown Court at Teesside of sexual assault contrary to section 3 of the Sexual Offences Act 2003. The complainant said that, after making a sexual proposition, he grabbed the fabric of her tracksuit bottoms near a pocket and tried to pull her towards him. He denied being the assailant and relied on an alibi.

On his appeal against conviction, the appellant challenged the sufficiency of the touching and its sexual character. He also alleged errors in the section 35 direction, the identification direction and the Lucas direction. The principal issue was the correct construction and application of section 78(b), which determines when touching is sexual.

1. Appeal dismissed. The court held that the conviction was safe despite identified shortcomings in the summing-up.
2. Section 78(b) of the Sexual Offences Act 2003 contains two separate and cumulative requirements. First, the touching must, by its nature, be capable of being sexual. Secondly, its circumstances or a person’s purpose, or both, must make it sexual. A judge deciding whether there is a case to answer must decide whether a reasonable person could answer both questions adversely to the defendant. A jury should then decide them sequentially. In answering the first question, it must disregard the circumstances before and after the touching and any person’s purpose.
3. The Recorder had instead considered sexual character globally. That was not the correct approach, but on the facts it could not have adversely affected the safety of the conviction.
4. Grasping the complainant’s clothing was capable of constituting touching for section 3. Section 79(8) expands, rather than exhaustively defines, touching. Parliament did not intend to exclude sexual assault merely because the contact was with clothing being worn by the complainant.
5. The court also observed that section 62 could be available where an assault does not satisfy the first limb of section 78(b), but is committed with intent to commit a relevant sexual offence.
6. There was no impermissible selective reliance on Crown witnesses. Their evidence could be rejected if the jury considered that appropriate. The section 35 direction was properly given because the allegation called for an explanation and the jury could view the alibi evidence with reservation.
7. The identification directions would preferably have included a clearer warning that an honest and apparently convincing witness may be mistaken. Taken as a whole, however, the directions were careful and the omission did not make the conviction unsafe. The Lucas direction was also appropriate.

• Court of Appeal (Criminal Division): Leave to appeal was granted and the appeal against conviction was dismissed in [2005] EWCA Crim 732.
• Crown Court at Teesside: On 1 October 2004 the appellant was convicted of sexual assault contrary to section 3 of the Sexual Offences Act 2003. On 29 October 2004 he received an 18-month detention and training order, with a consecutive four-month order for breach of an earlier supervision requirement.