You may be accused of sexual assault where the allegation involves touching of a sexual nature but stopping short of actual penetration. In such circumstances, the Crown will have to convince a jury that you:
- Intentionally touched another person;
- The touching was sexual;
- The other person did not consent to the touching; and
- You did not reasonably believe that the other person consented.
Any form of touching will be sufficient, as long as it is sexual in nature and deliberate; accidentally touching somebody will not give rise to an offence. The complainant’s body does not need to be touched directly (touching through clothes will suffice) but if the act of touching is not completed, the offence will not be made out.
Appeal Court cases in relation to issue regarding sexual assault by touching
Despite inadmissible opinion evidence from prosecution witnesses having been adduced before the jury, convictions for sexual assault and assault by penetration were safe.
The appropriate total sentence for two offences of sexual assault and one of blackmail was an immediate custodial term of three years. When imposing a suspended sentence of 18 months’ imprisonment, the sentencing judge had given too much weight to mitigating factors, including the fact that the offender had Asperger’s Syndrome, and insufficient weight to the seriousness of the blackmail offence. He had also erred in finding that the victim’s apparent consent to sexual activity on one occasion had lessened the seriousness of the subsequent sexual assaults.
Despite the absence of certain evidence at trial, the appellant’s convictions for sexual assault and rape of his half-sister were safe, because the totality of the trial process including the directions given and the summing up was fair.
As the Attorney General had a statutory responsibility to personally consider whether sentences should be referred to the Court of Appeal as unduly lenient, it was inimical to the public interest for judges, when exercising their discretion as to the provision of a transcript of a sentence hearing, to restrict or limit the provision of such information on such a request from the Attorney General.
In imposing a 12-month period of suspension on a solicitor sentenced to a 12-month community order and a five-year notification requirement on the sex offenders register for convictions of sexual assault and racially aggravated assault, the Solicitors Disciplinary Tribunal had erred in its failure to consider the period of suspension necessary to protect the reputation of the profession and the public confidence in the profession, and in taking into account the period for which the solicitor had not been able to practise prior to an order of the court being made.
A claimant failed to show that disclosure on enhanced criminal record certificates of an allegation of sexual assault of which he had been acquitted was disproportionate and inaccurate.
A Lucas direction would not have been appropriate, or helpful to the defendant. where an allegation of sexual assault turned wholly on the jury’s assessment of the respective credibility of the defendant and the complainant.
At a fact-finding hearing relating to the death and possible sexual assault of a child, the court highlighted difficulties with the approach to police disclosure outlined in the 2013 Protocol and Good Practice Model and made detailed suggestions for new procedural guidelines, subject to formal review by the President of the Family Division.
Sentences of six years’ imprisonment following a conviction for attempted rape and 30 months’ imprisonment, to be served concurrently, following a conviction for sexual assault, were not unduly lenient where the judge had taken into account totality, but had been motivated by mercy.
It was a technical error to impose a single global extension period when sentencing for two or more offences by means of consecutive extended sentences. Simplicity was achieved by imposing one single extended sentence on one of the offences, and setting its terms having regard to all the other features of the case.
A sentence of imprisonment for public protection with a notional determinate sentence of 16 years’ imprisonment for rape, sexual assault and robbery, reduced to 12 years’ after credit for a guilty plea, was not manifestly excessive. The notional determinate sentence had been made to reflect all three offences, and there were significant aggravating factors which justified the high starting point.
A conviction for sexual assault was safe where a judge had refused to grant an adjournment to allow the defence time to contact a witness mentioned by the victim for the first time in her evidence in chief. Instead the judge had admitted hearsay evidence which indicated that the witness would not have been able to support the victim’s case.
Alleged failures in pre-trial investigation procedure did not affect the safety of the convictions of soldiers found guilty of kidnapping, sexual assault, theft and assault occasioning actual bodily harm.
Although a police interview of a mentally disordered victim had contained leading questions, the judge had not erred in admitting it at a trial for sexual assault of a person with a mental disorder impeding choice as he had been satisfied that the victim’s main account had been given in response to open questions and a reasonable jury could conclude that that account was credible.
Bad character evidence in respect of complainants in sexual assault allegations had been properly excluded where a judge had decided that it lacked substantial probative value as it did not establish a propensity towards general untruthfulness. That exclusion avoided the inevitable, grossly prejudicial, admission of the accused’s previous convictions for sexual offences.
Fresh evidence which cast doubt on the credibility of a complainant’s evidence had sufficient impact on the safety of a conviction for rape for it to be quashed. However, the evidence did not have the same impact on the complainant’s credibility in respect of allegations of sexual assault, which were upheld.
Two convictions for rape were safe where a judge had admitted evidence of an offender’s single previous conviction for sexual assault. The offences all demonstrated sufficiently unusual behaviour, capable of demonstrating the offender’s propensity to commit offences of the kind charged, to permit admission under the bad character provisions of the Criminal Justice Act 2003.
An appellant who had faced a number of counts relating to offences arising out of the same sexual encounter had failed to establish that his conviction on two of those counts was rendered unsafe by the jury’s failure to reach a verdict on the remaining counts.
A judge had not erred in permitting the prosecution to adduce evidence of an offender’s bad character, relating to conduct forming the basis of a charge for sexual assault, of which he was acquitted, after it had closed its case as the defence had not yet opened its case. The judge had also directed the jury fairly on the similarities and dissimilarities between the previous incident and the index offence.
An extended sentence of 39 years, with a custodial term of 33 years, imposed in respect of a very large number of serious sexual offences against young girls was manifestly excessive; the appropriate custodial term was 30 years. The judge had also erred in adding up the consecutive sentences to reach the overall custodial term before imposing an extension period on the total: it was the overall extended determinate sentences that had to be consecutive, not just the custodial terms.
A multiple-counts indictment under the Criminal Procedure Rules 2014 r.14.2(2), which allowed multiple instances of similar offences to be charged as a course of conduct, would not be properly drafted unless it specified a minimum number of occasions on which the offending was alleged to have happened. Otherwise, where a defendant was convicted on such an indictment, a sentencing judge could not know how many times the jury believed the offence to have been committed, and fairness would require him to sentence on the basis that it was more than once, but no more than twice.
A taxi driver’s conviction for a single offence of sexually assaulting a 17-year-old passenger was not unsafe where the driver had been suffering from undiagnosed diabetes at the time of his police interview and, unbeknown to all, might have been hypoglycaemic. On the facts, the driver’s answers in police interview could not be regarded as having made any difference to the jury being satisfied that the girl was telling the truth.
A conviction for sexual assault was safe where an offender’s original solicitors had failed to obtain medical evidence showing that he was a diabetic and suggesting that his medical condition affected the answers he had given in interview, during which he had made partial admissions. The jury had been persuaded by the evidence the complainant gave, who had no reason to have lied.
A doctor’s rights under ECHR art.8 would not be breached by the police disclosing information which had been unlawfully obtained during their investigation into a patient’s allegation of sexual assault against him to the General Medical Council for the purposes of its inquiry into the doctor’s fitness to practise.
A sentence of 20 years’ imprisonment was appropriate in the case of a senior police officer who had been convicted of a number of sexual offences against his wife and teenage boys. In a case of this nature, where the offending spanned a long period of time and where there had been significant changes in the legislation, Crown counsel should ensure that assistance was given to the judge in relation to his sentencing powers.
A conviction for sexual assault was quashed in circumstances where it was not clear that the jury would have reached the same verdict had it been aware of fresh evidence, admitted on appeal, that the offender suffered from Asperger’s syndrome.
In the circumstances, the fact that a complainant had made an unfounded allegation of rape against an accused in a retrial did not cast doubt on the reliability of her evidence against him in an earlier trial so as to render unsafe his conviction for sexual assault in that earlier trial.
A judge had not erred in rejecting a submission of no case to answer in a trial for sexual assault where the only evidence against the accused was identification evidence from the victim. However, when admitting evidence of the accused’s previous conviction, the jury should have been told that the accused had only been included in an identification procedure because of his conviction.
A conviction for the sexual assault of a teenage friend of the appellant’s daughter was safe where the jury had been careful to convict only on the count for which there was some support from other witnesses and from the content of a text message sent after the incident.
The court gave guidance regarding the assessment of a complainant’s mental capacity in a criminal trial when the alleged offences involved proof of a lack of consent.
A judge had not erred in refusing to sever an indictment containing counts relating to separate incidents of murder and sexual assault. The incidents were broadly similar and close in time and there were a number of very significant similarities. The issue as to whether they were wholly disconnected was a matter for the jury.
A recorder had erred in varying an order so that the identity of a young offender could be made public; he had given insufficient consideration to the public interest in the effective rehabilitation of the offender.
Although a judge’s summing up had been defective, in that he had recited large chunks of evidence rather than summarising the defence and prosecution cases, that had not affected the safety of a conviction for sexual assault, it did not deflect the jury from a proper and fair consideration of the issues.
An offender’s conviction for assault by penetration of the vagina had not been inconsistent with his acquittal for offences of attempted rape and sexual assault by anal penetration. Nor could his conviction be overturned on the grounds that the judge had given the jury a Watson direction at the same time as a majority verdict direction, as there was no evidence that the jury had been pressured into delivering compromise verdicts.
A sentence of four years’ imprisonment was appropriate for an offence of sexual assault where the offender had pretended to be a taxi-driver, targeting lone, drunken females, and where he had prevented his victim from leaving his car before taking her to a dark area to assault her in extremely frightening circumstances. As the force was minimal and there was no attempt to undress his victim or degrade her in any way, a sentence of six years’ imprisonment was too long.
In passing sentence for sexual assault, a judge had been entitled to take an adjusted starting point of six years’ imprisonment, as opposed to one of 12 months as recommended in the sentencing guidelines. The offence had been replete with aggravating factors and, save for a guilty plea, devoid of any mitigation. The judge had correctly observed that the guidelines were precisely such: guidelines, not tram lines.
The Appeal Division of the Isle of Man had been entitled to conclude that an autistic man’s conviction for sexual assault was safe. The expert evidence adduced by the offender about his condition did not lead to a different conclusion because the evidence, as a whole, supported conviction.
A judge receiving fresh prosecution evidence during the course of a trial might have put undue pressure on a defendant to change his plea by indicating that he would give a reasonable amount of credit if he did so. However, the incident could not lay the foundation for an allegation of bias because the defendant had continued to maintain his innocence and the judge had continued to conduct the trial entirely fairly.
A discretionary life sentence with a minimum term of four years for offences of false imprisonment, committing an offence with intent to commit a sexual offence and sexual assault was manifestly excessive. Such a sentence was to be reserved for the gravest offences and a sentence of detention for public protection with a three-year minimum term was appropriate.
A total sentence of five years’ imprisonment imposed for two sexual assaults was manifestly excessive and was reduced to three years. The judge had been entitled to find that the aggravating features moved the offences out of the third category in the definitive guideline for sexual assault, but he had erred in passing a sentence on one count which was at the starting point of the first category.
A conviction for rape was unsafe and a conviction for sexual assault was substituted, where there was an absence of any evidence or activity capable of justifying the conclusion which pointed to an intent to commit the specific offence of rape. There was ample evidence of an intent to commit a serious sexual assault and there was no doubt that the offender’s actions had gone well beyond mere preparation.
The court upheld the convictions of a male nurse for several counts of sexual assault upon women patients who were coming round after general anaesthetic in circumstances where the offender claimed that the complainants had experienced false memories as a side effect of the anaesthetic and the judge had given an appropriate direction to a jury in relation to its consideration of the evidence of several complainants for an assessment of the likelihood of the coincidence.
An offence of sexual assault, although a bad offence within its category, did not justify the imposition of an extended sentence. A sentence of two years’ imprisonment was substituted.
A six-year extended licence period, imposed upon an offender who had pleaded guilty to four sexual assaults, was excessive. A four-year extended licence, equivalent to the appropriate custodial term, was therefore imposed.
A total sentence of seven years’ imprisonment with an extended licence period of two years imposed on an offender following his pleas of guilty to three counts of sexual assault was manifestly excessive and was reduced to six years’ imprisonment; further, the extended licence period was not warranted.
A sentence of one year’s imprisonment suspended for two years with a two-year supervision requirement imposed on an offender for five counts of sexual assault was unduly lenient and was increased to 15 months’ imprisonment. There had been no justification for departing from the Sexual Offences Act 2003 Definitive Guideline and the judge had erred in not giving reasons for doing so.
A total sentence of 11 years’ imprisonment imposed on an offender for rape, sexual assault and causing a child to watch a sexual act was unduly lenient, and was replaced with a sentence of 16 years’ imprisonment. The offender, a foster carer, had abused a vulnerable child in his care repeatedly over a two-year period.
A notional determinate sentence that equated to 30 years’ imprisonment before a one-third reduction for guilty pleas, which had formed the basis for calculating the specified minimum term of a life sentence imposed for 28 counts relating to the sexual abuse of five boys, was excessive and reduced to 20 years.
A sentence of a three-year supervision order imposed on a 17-year-old for offences of sexual assault on a child under 13 and causing a child to engage in sexual activity was not unduly lenient, as the long-term need for public protection required appropriate intervention that would not be provided by the imposition of a detention and training order.
A sentence of 20 years’ imprisonment for 13 counts of sexual offences involving young children, including rape, was not manifestly excessive as although R. v Millberry (William Christopher)  EWCA Crim 2891,  1 W.L.R. 546 indicated that the appropriate starting point for a campaign of rape was 15 years, that was a starting point and not a finishing point, and the definitive sentencing guidelines applied.
Although a sentence of four years’ detention in a young offender institution imposed for sexual assault of a child under 13 and of causing or inciting a child under 13 to engage in sexual activity was severe, it was not manifestly excessive.
The judge had erred in principle in imposing a sentence of imprisonment for public protection in respect of the appellant’s sexual assault of a child under the girl of 13; repetitive violent or sexual offending at a relatively low level without serious harm did not of itself give rise to a significant risk of serious harm in the future.
A judge had been correct to admit a defendant’s previous convictions as bad character under the Criminal Justice Act 2003 s.101(1)(d), despite their being over 30 years old, since they had relevant factual similarities to the offence charged and were of sufficient probative force.
The defendant, who had kissed a 20-year-old man with learning difficulties without consent, did not pose a significant risk of serious harm; therefore a term of imprisonment for public protection was inappropriate.
A judge had not erred in law in rejecting an offender’s submission of no case to answer to four counts of rape and two counts of sexual assault, all of a child aged under 13, in circumstances where, despite inconsistencies in the victim’s evidence, through the victim’s various accounts the judge had a clear basis on which to form his conclusion that, applying the principles established in R. v Galbraith (George Charles)  1 W.L.R. 1039, it was for the jury and not for him to assess the victim’s credibility.
A judge had correctly imposed a sentence of imprisonment for public protection upon an offender who had committed a series of sexual assaults against several girls under the age of 13. However, given the non-penetrative nature of the offences, a minimum term of six years was too long and was replaced with a minimum of four years.
A minimum term of three years’ imprisonment for public protection imposed on an offender who had pleaded guilty to 17 counts comprising offences of indecent assault together with the taking and making of indecent photographs of children was not manifestly excessive where the offences had involved the planned, premeditated targeting of young children and a grave breach of trust over a prolonged period.
A judge had been wrong to undertake a trial of an issue concerning a defendant’s alleged conduct prior to an offence that had neither been admitted nor proved by verdict and further erred in using his findings against that defendant to form the basis of an assessment of dangerousness under the Criminal Justice Act 2003. However, in the circumstances, the judge was correct to impose imprisonment for public protection.
A judge was wrong to assess a defendant as posing a significant risk of causing serious harm to the public where the evidence did not support the requirement that the harm would result in death or serious personal injury.
A finding that a defendant did not pose a risk of serious harm to the public within the meaning of the Criminal Justice Act 2003 s.229 did not preclude the court from imposing a sexual offences prevention order under the Sexual Offences Act 2003 s.104 on that defendant.
The court considered the proper method of sentencing where sample offences were charged and it was alleged that there had been multiple offending by the defendant.