Dunn, R. v

For an offence governed by the former law of indecent assault, an allegation that the defendant caused the complainant to masturbate him does not, without a threat or show of force to the complainant, allege an assault in law. The fact that the conduct could have been charged under a different statutory offence does not cure that defect.

The later and broader definition of sexual assault in the Sexual Offences Act 2003 does not justify reinterpreting the historic offence. Where a count fails to allege an essential element, the conviction must be quashed. On sentence, the aggregate term must remain justified and proportionate after that result.

The appellant was convicted at Leicester Crown Court of seven sexual offences involving three teenage students at a music school where he taught. He appealed, with leave, against his conviction on count 3 only. That count alleged indecent assault under section 14(1) of the Sexual Offences Act 1956 by causing KB, aged 15, to masturbate him.

He also renewed his application for leave to appeal against an aggregate sentence of eight years' imprisonment and a Sexual Offences Prevention Order. The central issue on conviction was whether the particulars of count 3 were capable of alleging an assault in law.

1. The court allowed the appeal against conviction on count 3. The particulars alleged that the appellant caused KB to masturbate him, but did not allege an assault in law. Fairclough v Whipp 35 Cr.App.R 138 established that inviting another person to touch the invitor does not constitute an assault on that person. The count therefore failed irrespective of the evidence that might have been led at trial.

2. The court rejected the Crown's former contention that Fairclough v Whipp was wrongly decided. Parliament enacted the Indecency with Children Act 1960 on the premise that, under the prior law, indecent assault required some threat or show of force to the victim. The alleged conduct could properly have been prosecuted as gross indecency with a child under section 1(1) of that Act. That alternative did not make the defective count an allegation of indecent assault.

3. The broader sexual-assault definition in section 3 of the Sexual Offences Act 2003 did not alter the meaning of the historic offence. Parliament had instead changed the law prospectively. There was no basis for overturning settled law applicable at the time of the alleged conduct.

4. The court granted leave to appeal against sentence and allowed that appeal. After quashing count 3, the remaining aggregate of seven years was excessive. Reducing the sentence on count 2 to one year produced a total sentence of six years' imprisonment.

5. The court upheld the Sexual Offences Prevention Order. The sentencing judge was entitled to assess future risk from the appellant's prolonged sexual conduct towards young girls and his presentation at trial. The absence of further offending, bail compliance and licence conditions did not make the order unnecessary.

• Court of Appeal (Criminal Division): By [2015] EWCA Crim 724, the court allowed the conviction appeal on count 3, allowed the sentence appeal after granting leave, reduced the total sentence to six years' imprisonment, and did not interfere with the Sexual Offences Prevention Order.
• Leicester Crown Court: On 7 May 2014 the appellant was convicted of seven sexual offences. On 30 May 2014 he received an aggregate sentence of eight years' imprisonment and a Sexual Offences Prevention Order.