R v Edward Price

For indecent assault under section 14(1) of the Sexual Offences Act 1956, an assault may take the form of a battery. Battery requires the intentional or reckless application of unlawful force, but no violence or hostility. The slightest force inherent in deliberate touching is sufficient. The rule that an invitation to touch the defendant does not itself amount to an assault does not govern a case involving deliberate penetration by the defendant of an orifice of the complainant. Oral penetration may therefore constitute an assault where deliberate penetration is proved. On a submission of no case to answer, the judge must stop the case only where the prosecution evidence, taken at its highest, could not properly support a conviction. A multiple-incident count requires proof of the specified minimum number of incidents within the pleaded period, not proof of an exact frequency.

The appellant was convicted in the Crown Court at Reading of two counts of indecent assault under section 14(1) of the Sexual Offences Act 1956, relating to oral sex when the complainant was aged 15. The judge rejected submissions that there was no evidence of an assault and that Count 4, a multiple-incident count alleging at least 11 occasions, should be withdrawn from the jury.

The appellant appealed against conviction. He argued that he had merely permitted the complainant to perform oral sex and that there was insufficient evidence of at least 11 incidents. The central questions were whether the alleged penetration could constitute an assault and whether the evidence was sufficient to leave Count 4 to the jury.

Appeal dismissed.

1. Nature of the assault. Section 14(1) of the Sexual Offences Act 1956 included both assault in the strict sense and battery. As explained in Collins v Wilcock [1984] 1 WLR 1172, battery is the intentional or reckless application of unlawful force. Violence is unnecessary. The slightest intentional touching is sufficient, although accidental touching lacks the necessary mens rea. The complainant’s age also meant that consent could not prevent an act from being an assault under section 14(2).
2. Earlier authorities. The reasoning in Fairclough v Whipp (1951) 35 Cr App R 138, followed in R v Burrows (1951) 35 Cr App R 180, DPP v Rogers (1953) 37 Cr App R 137 and R v Dunn [2015] EWCA Crim 724, concerned touching of the defendant by the complainant after an invitation to touch. That line was distinguishable from deliberate penetration by the defendant of the complainant’s mouth. The court had not been asked to overrule it. R v Brooks [2021] EWCA Crim 1468 did not decide the broader issue because it concerned a renewed application for leave and had addressed the argument as presented. The approach was supported by R v McCormack [1969] 2 QB 442 and by the dicta of Baroness Hale in R v J [2004] UKHL 42.
3. Count 4 and no case to answer. Applying R v Galbraith [1981] 1 WLR 1039, the question was whether, on the prosecution evidence taken at its highest, a properly directed jury could convict. The evidence that the conduct occurred many times, together with the complainant’s evidence about its frequency, entitled the jury to find at least 11 occasions during the pleaded period. The count did not require proof of a particular weekly or monthly pattern. The judge’s summing-up, read fairly as a whole, made the minimum requirement clear.
4. The first and second grounds of appeal were rejected. The convictions therefore stood.

1. Crown Court at Reading: The appellant was convicted on 18 July 2023. The judge had rejected submissions of no case to answer on Counts 2 to 4 and later sentenced him to seven years’ imprisonment.
2. Court of Appeal (Criminal Division): The appeal against conviction was dismissed on 3 May 2024: [2024] EWCA Crim 463.