Abdulahi, R v

Factual and Procedural Background

On 17 August 2021, the Appellant, then aged 24, was convicted at the Crown Court at Plymouth before His Honour Judge Mouseley QC of sexual assault contrary to section 3 of the Sexual Offences Act 2003 (Count 1) and common assault contrary to section 39 of the Criminal Justice Act 1988 (Count 2). The Appellant was awaiting sentence at the time of this opinion.

On 20 March 2020, the Appellant was taken into custody following an alleged attempt to punch a pedestrian near the main railway station in The City. He exhibited unusual behavior described as grandiose, flamboyant, or drunk and unable to stand unaided. A nurse at the custody centre, Nurse CS, examined him and found his blood sugar level to be critically low at 2.1 mmol/L (normal range 5-8 mmol/L). He was given glucose gel, food, and drink, and reassessed approximately four hours later when his blood sugar had returned to normal (6.0 mmol/L).

During the second examination, Nurse CS testified that the Appellant deliberately touched her breast with the back of his left hand, an act she described as a definite touch lasting a few seconds, which she immediately identified as a sexual assault. The Appellant denied intentional touching, claiming any contact was accidental due to his movements. He also relied on a defence of non-insane automatism based on his low blood sugar level, which was withdrawn by the trial judge prior to jury consideration.

The prosecution relied on Nurse CS’s evidence and a colleague’s testimony about her first complaint. The defence denied intentional sexual touching and denied attempting to strike the pedestrian, suggesting any actions were involuntary due to hypoglycaemia.

Legal Issues Presented

1. Whether the trial judge erred in withdrawing the defence of non-insane automatism from the jury in relation to Count 1.
2. Whether the trial judge erred in directing the jury that the sole question was whether the Appellant intentionally touched the complainant’s breast, rather than allowing the jury to consider whether the touching was sexual under both limbs of section 78 of the Sexual Offences Act 2003.

Arguments of the Parties

Appellant's Arguments

• The trial judge wrongly withdrew the defence of non-insane automatism, as the Appellant’s low blood sugar could have affected his actions.
• The judge oversimplified the jury direction by limiting the issue to the actus reus of intentional touching without allowing the jury to consider whether the touching was sexual under section 78(b), which requires consideration of the nature of the touching and the circumstances or purpose behind it.
• The Appellant’s continuing odd behaviour after his hypoglycaemic episode could have meant the touching was non-sexual, so the jury should have been allowed to consider this alternative characterisation.

Respondent's Arguments

• The nature of the act—touching a woman’s breast—is inherently sexual under section 78(a), so the judge was correct to direct the jury solely on whether the touching was intentional.
• The single question posed to the jury was appropriate given the evidence and case presented, with the defence denying intentional touching or asserting accident.
• No objection was raised at trial regarding the judge’s direction, supporting the appropriateness of the approach.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the statutory framework under the Sexual Offences Act 2003, focusing on section 3 defining sexual assault, and section 78 which distinguishes between two limbs for determining whether touching is sexual:

• Section 78(a): Touching is sexual if a reasonable person would consider it so by its nature, regardless of circumstances or purpose.
• Section 78(b): Touching may be sexual if it is sexual by nature and because of its circumstances or purpose.

The court found that the deliberate touching of the complainant’s breast by the Appellant was clearly sexual by its nature, satisfying section 78(a). The complainant’s evidence was detailed and unequivocal that the touching was deliberate, not accidental, and sexual. The court rejected the Appellant’s argument that the jury should have been directed under section 78(b) to consider the context and purpose, holding that section 78(a) was designed to prevent extraneous considerations such as motive from complicating the question.

The court also noted that the defence of non-insane automatism was properly withdrawn as the Appellant’s blood sugar levels had normalized at the time of the assault, and the Appellant was capable of intentional action. The judge’s direction to the jury was appropriate, focusing on whether the Appellant intentionally touched the complainant’s breast.

Accordingly, the court held the conviction was safe and the appeal was dismissed.

Holding and Implications

DISMISSED

The court upheld the conviction for sexual assault, confirming that where the nature of the touching is inherently sexual, the jury need only consider whether the touching was intentional. The decision reinforces the application of section 78(a) of the Sexual Offences Act 2003 and clarifies that considerations of the accused’s purpose or circumstances are not relevant under that limb. No new precedent was established beyond affirming the correct application of existing law. The direct effect is that the Appellant’s conviction stands and the appeal is dismissed.