Factual and Procedural Background
This appeal arises from the conviction of the Appellant at the Crown Court at Reading on 18 July 2023 for indecent assault contrary to section 14(1) of the Sexual Offences Act 1956. The offences related to acts committed when the complainant was aged 15. The Appellant was acquitted on other counts relating to when the complainant was 14. The Appellant, then aged 78, was sentenced on 6 September 2023 to concurrent prison terms totaling seven years. Following conviction, the Appellant was subject to indefinite notification requirements under the Sexual Offences Act 2003 and potential inclusion in barring lists under the Safeguarding Vulnerable Groups Act 2006.
The complainant lived with her mother and the Appellant, her stepfather. She suffered an epileptic fit at 14 and was hospitalized for months. After discharge, the Appellant shared her bedroom. Allegations include the Appellant touching the complainant and compelling oral sex from age 14 and continuing at age 15. The Appellant fathered two children with the complainant in 1994 and 1996. The complainant reported rape by the Appellant in 2017, initially retracting but later pursuing the allegation. The Appellant was arrested and declined to answer questions.
The prosecution relied on the complainant’s testimony and corroboration from another witness. The defence contended no sexual activity occurred before the complainant was 16 and challenged the reliability of the complainant’s memory and evidence inconsistencies. The Appellant did not give evidence or call witnesses. The jury’s key issue was whether the complainant was under 16 when oral sex was compelled.
The indictment included Counts 3 and 4 alleging indecent assault by compelling oral sex between December 1991 and December 1992. The offence required proof of assault in indecent circumstances. The law applicable excluded charges under the Indecency with Children Act 1960 for children aged 14 or older at the time of the acts.
The trial judge gave detailed written and oral directions to the jury on the legal elements and the requirement to be sure of deliberate penetration of the complainant’s mouth by the Appellant’s penis. The judge ruled against the defence submission of no case to answer, finding the acts constituted indecent assault despite the absence of threats or force. The judge also ruled that the evidence was sufficient to support the multiple incident count alleging at least eleven occasions of oral sex.
Legal Issues Presented
- Whether the trial judge erred in law by ruling that the Appellant assaulted the complainant by asking her to perform oral sex and then penetrating her mouth with his penis.
- Whether the trial judge erred in ruling that there was sufficient evidence of at least eleven indecent assaults in addition to the single incident count.
Arguments of the Parties
Appellant's Arguments
- No evidence existed that the Appellant ejaculated or moved during the oral sex, implying passivity and absence of force.
- The Appellant’s conduct was analogous to inviting someone to suck a finger, which does not constitute assault.
- Relied on the Fairclough line of authority, which holds that an invitation to touch does not amount to assault without compulsion or hostility.
- Challenged the sufficiency of evidence for the multiple incident count alleging at least eleven occasions.
Crown's Arguments
- The penetration of the complainant’s mouth was an assault and indecent by definition.
- Consent was legally irrelevant because the complainant was under 16 years old.
- The Appellant was not passive; the complainant’s testimony indicated she did not like the acts.
- Common sense and physiological reality require some active participation and application of force, however slight, during oral sex.
- The evidence supported the multiple incident count based on the complainant’s account of frequency.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Fairclough v Whipp (1951) 35 Cr App R 138 |
Invitation to touch without compulsion or hostility does not constitute assault. |
Distinguished from the present case because it involved touching the defendant, not penetration by the defendant. |
| R v Brooks [2021] EWCA Crim 1468 |
Assault by battery includes intentional application of unlawful force; ejaculation inside the mouth involves application of force. |
Not read as deciding the exact legal issue here; treated as a leave refusal and unreserved judgment. |
| Collins v Wilcock [1984] 1 WLR 1172 |
Distinction between assault (apprehension of unlawful force) and battery (actual unlawful force). Any touching, however slight, may amount to battery. |
Used to explain that the present case involves battery rather than mere assault. |
| DPP v Rogers (1953) 37 Cr App R 137 |
Reaffirmed Fairclough; no assault without compulsion or hostile act. |
Followed in the line of authority but distinguished on facts. |
| R v Dunn [2015] EWCA Crim 724; [2015] 2 Cr App R 13 |
Confirmed Fairclough’s principle that an invitation to touch does not amount to assault. |
Accepted by the court but distinguished from the present case due to difference in nature of acts. |
| R v J [2004] UKHL 42; [2005] 1 AC 562 |
Indecent assault includes penetration of orifices; consent irrelevant for under-16s; prosecution cannot circumvent statutory time limits by charging indecent assault instead of unlawful sexual intercourse. |
Supported the approach that penetration of an orifice constitutes indecent assault regardless of hostility. |
| R v McCormack [1969] 2 QB 442 |
Penetration of vagina with a finger is indecent assault regardless of consent; no rational distinction between different types of penetration for indecent assault. |
Supported the trial judge’s approach in this case. |
| R v Galbraith [1981] 1 WLR 1039 |
Guidance on submissions of no case to answer; judge should stop case if no evidence or evidence so weak no reasonable jury could convict. |
Applied to assess sufficiency of evidence for multiple incident count. |
Court's Reasoning and Analysis
The court began by reviewing the statutory provisions governing indecent assault under the Sexual Offences Act 1956 and relevant amendments. It emphasized that the offence requires proof of assault accompanied by indecent circumstances, and that for persons under 16 years, consent is legally irrelevant.
The court examined the line of authority beginning with Fairclough, which holds that an invitation to touch the defendant's body without compulsion or hostility does not constitute assault. However, the court distinguished this from the present case, which involves the Appellant penetrating the complainant's mouth with his penis, an act materially different from mere invitation or passive conduct.
The court relied on established principles from Collins v Wilcock, recognizing that battery includes any intentional or reckless application of unlawful force, however slight. The court noted that penetration of an orifice by the defendant cannot be equated with an invitation to touch a defendant’s body part, as in Fairclough.
The court considered the Crown’s submission that the act of oral sex necessarily involves some active participation and application of force by the Appellant, rejecting the Appellant’s analogy to sucking a finger.
Regarding the multiple incident count, the court applied the Galbraith test for no case submissions, concluding that the evidence, though not precise in frequency, was sufficient for the jury to reasonably conclude at least eleven occasions of oral sex. The judge’s directions to the jury were found to be clear and balanced, instructing them to acquit if not sure of the required number of incidents.
The court rejected the Appellant’s criticisms of the judge’s summary of the complainant’s evidence, finding the judge’s characterization fair and reasonable.
Holding and Implications
The appeal is DISMISSED.
The court upheld the convictions for indecent assault by penetration, affirming that such acts constitute battery and assault under the law even absent overt hostility or force beyond the act itself. The decision clarifies that the line of authority which excludes assault in cases of mere invitation to touch does not apply to cases of penetration by the defendant. The multiple incident count was also properly left to the jury based on the evidence.
The direct effect is the affirmation of the Appellant’s convictions and sentences. No new precedent was established beyond the application and clarification of existing principles.