Attorney General's Reference (No 1 of 2020)

For sexual assault, the statutory intention is an intention to touch, not a separate intention that the touching be sexual. Whether intentional touching is sexual is determined under Sexual Offences Act 2003, section 78. Where the activity may be sexual by its nature, the question is whether a reasonable person would regard it as sexual because of the circumstances, the purpose of any person, or both. The accused’s purpose may therefore be evidentially relevant, but it is not an additional, free-standing mental element of the offence.

The defendant was acquitted at Teesside Crown Court of sexual assault and of common assault after kissing the complainant on a train. It was accepted that the touching was intentional, non-consensual, and without a reasonable belief in consent. The trial judge directed the jury that the prosecution also had to prove that the defendant intended the touching to be sexual.

Under section 36 of the Criminal Justice Act 1972, the Attorney General referred the correctness of that direction to the Court of Appeal. The reference did not affect the acquittals. The central issue was whether sexual assault under section 3 of the Sexual Offences Act 2003 includes a further requirement that the defendant intended the touching to be sexual.

1. The Attorney General’s reference was answered in the negative. Sexual assault under section 3 of the Sexual Offences Act 2003 requires intentional touching, sexual touching, absence of consent, and no reasonable belief in consent. It does not require proof of an additional intention that the touching be sexual. The acquittals remained unaffected.
2. Section 3 expressly allocates the required states of mind. Parliament required intentional touching and specified the mental element concerning consent. It did not impose an unexpressed further requirement that the accused intended the touching to be sexual. The general presumption of mens rea is a principle of statutory construction and cannot replace the statute’s plain allocation of mental elements.
3. Under section 78(b), where touching may be sexual by its nature, its sexual character is judged by the reasonable person. It may be rendered sexual by its circumstances, the purpose of any person in relation to it, or both. Thus, an accused’s sexual purpose can be relevant to the objective statutory inquiry, but it is not a separate ingredient that the prosecution must prove in every case.
4. The court explained that R v JAS [2015] EWCA Crim 2254 concerned a case in which the accused’s purpose was determinative of whether activity was sexual under section 78(b). Its reference to sexual motivation did not establish a free-standing sexual-motivation element for section 8 or section 3. The court also explained R v Court [1989] AC 28 as requiring an intention to commit an objectively indecent assault, rather than an indecent purpose. That approach was materially similar to the statutory scheme now in force.
5. The analyses in R v H [2005] EWCA Crim 732 and R v Heard [2007] EWCA Crim 125 supported this construction. They identified no further requirement of an intention to touch sexually.

• Court of Appeal (Criminal Division) — on an Attorney General’s reference under section 36 of the Criminal Justice Act 1972, the court held that section 3 of the Sexual Offences Act 2003 contains no additional requirement that the defendant intended the touching to be sexual.
• Crown Court at Teesside — on 17 October 2019, the defendant was acquitted of sexual assault and the alternative offence of common assault after the jury was directed that sexual intention was a necessary ingredient.