In AG’s Reference (No 1 of 2020)  EWCA Crim 1665, following an acquittal for sexual assault in the Crown Court, the Attorney General referred a point of law to the Court of Appeal for consideration, pursuant to s 36 of the Criminal Justice Act 1972.
The referred question was as follows:
‘Is it necessary for the prosecution to prove, as an element of the offence of sexual assault, not only that the offender intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but that the offender intended his touching of that person to be sexual?’
The facts can be stated relatively simply: Whilst on a train travelling to Newcastle, the defendant kissed the complainant on her lips. The defendant was charged with sexual assault, contrary to s 3 of the Sexual Offences Act (SOA) 2003. The parties differed in their accounts as to why the defendant kissed the complainant, but it was accepted between the parties that the defendant had kissed the complainant (thus amounting to an “intentional touching”) without her consent, and without any reasonable belief that she was consenting. The sole issue at trial, therefore, was whether the touching was sexual within the meaning provided in s 78 of the SOA 2003. The parties agreed that the kiss was not, by its nature, sexual within the meaning of s 78(a). The parties disputed whether the touching was sexual within s 78(b).
At trial, the defence contended that in addition to proving that the touching was sexual, the Crown must also prove that the defendant intended for the touching to be sexual. The defence relied on a passage from the Court of Appeal in R v JAS  EWCA Crim 2254, and a supplement to Rook and Ward on Sexual Offences: Law and Practice (5th edn (Sweet & Maxwell, 2019). The trial judge accepted this argument and directed the jury that the prosecution must make them sure that the defendant intended to touch the complainant sexually. The defendant was acquitted by the jury.
On appeal, the Vice President of the Court of Appeal (Criminal Division), Fulford LJ, provided the sole judgment of the Court. Reviewing the authorities before him, his Lordship concluded (at ) that:
‘we are confident that the answer to the question posed by the Attorney General is that it is not necessary for the prosecution to prove, as an element of the offence of sexual assault, that the offender not only intentionally touched another person without their consent and without reasonable belief in their consent, and that the touching was sexual, but also that the offender additionally intended his touching of that person to be sexual.’
His Lordship relied heavily on the judgments of Lord Woolf CJ in R v H  EWCA Crim 732;  1 WLR 2005 and of Hughes LJ in R v Heard  EWCA Crim 125;  QB 43. In neither authority, both of which extensively reviewed the required elements of the offence of sexual assault, did their Lordships identify a separate and distinct requirement that the defendant must intend that his touching be sexual. This was evident at  of Fulford LJ’s judgment.
In summary, therefore, there is no requirement on the part of the prosecution to prove that the defendant intended for his touching to be sexual.
The outcome of this reference is not unexpected. It has long been presumed that no additional mens rea requirement that the defendant must intend for the touching to be sexual existed. Indeed, the author at page 614 of the main text justifies this lack of requirement in the same manner as the Attorney General in the appeal: that the statutory language is silent on such a requirement, that an objective assessment of sexuality already exists in s 78 (requiring the reasonable person to consider whether the touching was sexual), and that in light of R v H, there is no necessity for a correspondence between the actus reus and mens rea. The judgment is, therefore, not contentious, nor is it unexpected. However, the judgment is extremely important in acting as a confirmation that no such requirement exists in the law.