10.4 Sexual assault

In AG’s Reference (No 1 of 2020) [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 [2015] 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 [45]) 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 [2005] EWCA Crim 732; [2005] 1 WLR 2005 and of Hughes LJ in R v Heard [2007] EWCA Crim 125; [2008] 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 [43] 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.

Comment:

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. 

6.3 Corporate Liability

On 3 November 2020, the Law Commission reported that it has been asked by the Government to ‘investigate the laws around corporate criminal liability and provide options to reform them’. In particular, the Law Commission has been asked to produce an ‘Options Paper’, outlining the options available for reforming the law on liability of corporate entities. The Terms of Reference are identified as being (inter alia):

(1)     whether the ‘identification doctrine’ is fit for purpose, when applied to organisations of differing sizes and scales of operation;

(2)     the relationship between criminal and civil law on corporate liability;

(3)     other ways in which criminal liability can be imposed on non-natural persons in the current criminal law of England and Wales; 

According to the news release, the Law Commission intends to publish the Options Paper in late 2021, and will thereafter consider work on a full Law Commission project on Corporate Criminal Liability. The author looks forward to the options to be presented.

The news release can be found here, including the Terms of Reference.

8.5.2.2 Elements of Gross Negligence Manslaughter

In R v Broughton [2020] EWCA Crim 1093, the appellant appealed to the Court of Appeal against his conviction for gross negligence manslaughter. His appeal centred around the necessary proof required for causation in gross negligence manslaughter. 

In summary, the appellant had supplied his girlfriend, the victim, with Class A drugs at a music festival. The victim experienced a bad reaction to the drugs – the evidence demonstrated that the appellant has ‘bumped up’ the drugs. The case for the prosecution at trial was that the appellant had supplied the drugs to the victim and had remained with her throughout. As a result of this, the appellant owed a duty of care to seek and secure medical assistance for the victim; his failure to do so amounted to a breach of that duty and was a substantial cause of her death. The expert witness at trial testified that the victim was ‘seriously unwell and in need of urgent medical care’ and she stood a 90% chance of survival with medical intervention. On this evidence, the defence made a submission of no case to answer on the basis that the evidence, taken at its highest, could not establish causation to the criminal standard. The judge rejected this submission and the defendant was convicted before a jury. 

On appeal, the appellant contended that the trial judge had used the wrong test to establish whether causation was satisfied to the criminal standard and, in any event, there was insufficient evidence to meet that standard. In particular, according to the appellant, the prosecution had to prove, beyond reasonable doubt, that the victim would have lived (ie the medical intervention would have saved her life). 

The appeal against conviction was upheld. The Court of Appeal, led by Lord Burnett CJ, confirmed the correct test to be that there was a serious and obvious risk of death and that medical assistance would have saved the victim’s life. More specifically, the prosecution had to establish the specific point in time when the victim’s condition reached the threshold of involving a serious and obvious risk of death and the prospects of survival at that point. The prosecution had not fixed on a time at which it was contended that the deceased’s condition posed an obvious and serious risk of death. Given the 90% chance of survival, according to the expert witness, the prosecution were unable to prove that there remained a serious and obvious risk of death at the time the victim’s condition deteriorated. As such, the conviction was unsafe and quashed. 

Comment:

Broughton is an important judgment in three respects:

First, it confirms that the test to be applied in causation cases is whether the victim would have lived with timely medical assistance. At trial, the prosecution had submitted that it was sufficient to prove that the victim was deprived of a ‘significant and substantial chance of survival’. This was not enough, according to the Court of Appeal. The question to ask is whether the medical assistance would have saved her life. 

Second, Broughton confirms the approach adopted in the earlier case of Gian v Crown Prosecution Service [2009] EWCA Crim 2553 that ‘in many homicide cases, determining the cause or causes of death did not rely exclusively on expert opinion but could be collected from surrounding circumstances’ (per Lord Burnett CJ in Broughton at [98]). This simply means that juries are required to consider expert evidence in the context of all other relevant evidence and make judgements based upon realistic and not fanciful possibilities. 

Finally, it provides a relatively clear statement as to the standard that must be met by the prosecution in terms of proof of causation. The prosecution must establish a point in time when they allege the serious and obvious risk of death arose, that there was a realistic chance of survival with medical treatment at that time, and that the defendant failed reasonably to secure medical treatment at that time. The prosecution’s inability to do so meant that causation, to the criminal standard, was not proven. 

9.2.4 Charging common assault

In DPP v Jones [2020] EWHC 859 (Admin), the DPP appealed to the Divisional Court by way of case stated against a decision of the magistrates’ court to refuse permission to amend two charges alleging common assault to add the words, ‘by beating’.

In summary, the defendant, a serving prisoner, was charged with ‘assault’, the allegation being that he spat on a number of prison officers. The prosecution attempted to amend the charge to ‘assault by beating’ to reflect the nature of the allegation. The magistrates’ court refused this application on account that the amendment was sought out of time (the time limit being 6 months – 1980, s 127). 

In the Divisional Court, Stuart-Smith J referred to the authority of R v Scunthorpe Justices, ex parte McPhee and Gallagher [1998] EWHC 228 (Admin), in which Dyson J identified that a charge (or more accurately in the magistrates’ court, an ‘information’) can be amended out of time so long as ‘(i) the different offence or offences allege the “same misdoing” as the original offence; and (ii) the amendment can be made in the interests of justice.’ The ‘same misdoing’ was defined by Dyson J as where ‘the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence’. 

The focus for Stuart-Smith J in Jones, therefore, was whether ‘assault by beating’ arose from the same facts as a charge of ‘assault’. At [21], Stuart-Smith J explained that:

it is plain beyond argument that the original offences were based upon allegations that the defendant spat at the two officers and that his spittle landed on them. No one was in any doubt about that, least of all the defendant, because his defence statement addressed these allegations head on as the central substance of the case against him. His defence was that he did not spit at the officers at any time.

His Lordship continued at [23]:

Leaving aside the technically correct observation that an offence of spitting so that the spittle lands should be charged as an assault by battery, there was never any doubt in anybody’s minds that the original offences arose out of allegations that the defendant spat at the officers; so, too, do the new offences.

As a result, the Divisional Court concluded that the amendment to the information should have been permitted and the case proceed on the basis of ‘assault by beating’. 

Comment

This is a particularly interesting decision which plays an important part in our understanding of the phrase ‘assault’. In many circumstances, ‘assault’ is a generic term covering both assault by apprehension, and battery. Indeed, in the case of R (Ward) v Black Country Magistrates’ Court [2020] EWHC 680 (Admin) (a judgment handed down seven days after that of Jones), Hickinbottom LJ concluded that the ‘general description [ie “common assault”] would have incorporated the more specific “battery” or “assault by beating”’. As such, it is questionable whether it was actually necessary to amend the charge at all in Jones. So long as the case proceeded on account of a battery (ie that there was an actual infliction of unlawful force), then the use of the terms ‘assault’, ‘common assault’, or ‘battery’ may be of less importance. This is certainly evident from the case of R (Kracher) v Leicester Magistrates’ Court [2013] EWHC 4627 (Admin) where the defendant was charged with and convicted of battery, but that finding was made on account that the defendant had threatened the victim, not that he had struck the victim. Had the defendant in Kracher been charged with ‘assault’ or ‘common assault’, it is possible that his conviction would have stood.

In summary, Jones is a useful authority to identify the difficulty associated with the use of the phrase ‘assault’ without further precision. Whilst the charge was properly amended, it is questionable whether such amendment was necessary if, following Ward, the case was proceeded, both factually and in the decision reached, on account of a battery. 

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