ABDULNASRI ABDULAHI v REGINA

Under section 78(a) of the Sexual Offences Act 2003, whether touching is sexual because of its nature must be decided by reference to the act itself. Its circumstances and the purpose of any person are excluded from that inquiry.

Where deliberate touching of a woman’s breast is established on the evidence, a court may properly conclude that the act is inherently sexual. If the remaining live issue is whether the touching was intentional, a jury may be directed to determine that single issue. Continuing unusual behaviour cannot convert an act falling within section 78(a) into non-sexual touching.

The appellant was convicted at Plymouth Crown Court of sexual assault and common assault. The sexual-assault conviction arose from an allegation that, after his blood glucose level had returned to normal, he deliberately touched a custody-centre healthcare professional’s breast with the back of his hand.

He appealed the sexual-assault conviction by limited leave. He no longer pursued the ground concerning non-insane automatism. His remaining ground challenged the judge’s direction that the only question for the jury was whether the touching was intentional. The central issue was whether the jury should instead have been required to decide whether the touching was sexual under section 78(b) of the Sexual Offences Act 2003.

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

2. Section 78(a) of the Sexual Offences Act 2003 requires the court first to assess the nature of the act itself when deciding whether touching is sexual by its nature. The statutory words exclude the circumstances of the act and the purpose of any person from that inquiry.

3. On the evidence, the judge was entitled to conclude that a deliberate movement of the appellant’s hand from his side to the healthcare professional’s breast was obviously and inevitably sexual. The court treated R. v H (Sexual Assault: Touching) [2005] EWCA Crim 732 as supportive of that conclusion.

4. The appellant’s continued odd behaviour after an earlier hypoglycaemic episode did not require the case to be considered under section 78(b). To treat that behaviour as capable of making the touching non-sexual would introduce the very considerations which section 78(a) excludes.

5. The judge therefore correctly left the jury the single live question of whether the touching was intentional. The evidence supported that direction and the resulting conviction.

• Court of Appeal (Criminal Division) — In [2022] EWCA Crim 412, dismissed the appeal against the conviction for sexual assault.
• Crown Court at Plymouth — On 17 August 2021, convicted the appellant of sexual assault contrary to section 3 of the Sexual Offences Act 2003 and common assault.