Heard, R. v

For sexual assault, the intentional touching required by section 3 of the Sexual Offences Act 2003 means deliberate touching. An unintended touching, including one caused by impaired physical control through intoxication, does not satisfy that element.

Voluntary intoxication cannot, however, be relied on to negate the ordinary or basic intent to touch. The relevant distinction under DPP v Majewski [1977] AC 443 is between intent attending the prohibited act and an additional purpose or consequence. Intoxication may explain disinhibition or later memory loss, but a drunken intent remains an intent.

The appellant was convicted at Maidstone Crown Court of sexual assault contrary to section 3 of the Sexual Offences Act 2003. While heavily intoxicated, he deliberately rubbed his penis against a police officer's thigh.

The trial judge ruled that sexual assault was an offence of basic intent. He directed the jury that the touching had to be deliberate, but that drunkenness was no defence. The appellant appealed against conviction, contending that voluntary intoxication could prevent the intention to touch from being proved.

The central issue was whether voluntary intoxication could negate the intentional-touching element of sexual assault.

1. Appeal dismissed. The conviction was safe. On the evidence, the appellant intentionally touched the officer. His intoxication might have caused disinhibition or subsequent memory loss, but neither possibility made the touching unintentional.
2. Section 3 of the Sexual Offences Act 2003 itemises elements which require different states of mind. It is therefore unhelpful to label the offence as a whole one of either specific or basic intent. The touching must be intentional. Whether it is sexual is generally objective under section 78, and a belief in consent must be reasonable.
3. Intentional touching means deliberate touching. A person who stumbles, flails or otherwise loses physical control and thereby makes an unintended touching does not commit this offence, whether intoxicated or sober. In such a case, the issue is accident rather than a drunken inability to form intent. A jury may therefore need the corollary that a drunken accident remains an accident.
4. Applying DPP v Majewski [1977] AC 443, voluntary intoxication cannot negate the ordinary intent attending the prohibited act. Specific intent requires an additional purpose or consequence beyond that act. The intention to touch under section 3 is not such an additional intent. Parliament had not altered that position by enacting the 2003 Act.
5. The judge was accordingly right to direct that the Crown had to prove deliberate touching and that a defence based on voluntary drunkenness preventing the formation of that intent was unavailable.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction.
• Maidstone Crown Court The appellant was convicted before His Honour Judge Patience QC of sexual assault contrary to section 3 of the Sexual Offences Act 2003.