Standards of modesty and privacy

Mr Holden QC's argument that the touching was not "sexual" is unfounded. E's own thoughts and beliefs constitute the mens rea of the act, and do not influence the actus reus. According to the Oxford English Dictionary, there are numerous meanings of the adjective "sexual", one giving reference to sexual organs and the differences between the sexes. E's application was based on the fact that Justice Heaton misdirected the jury about the meaning of section 5 of the Sexual Offences Act 2003.

With respect, directing the jury to give one exclusive meaning to the word "sexual" would not be productive. Instead the jury must decide on their own meanings according to the statute and their own beliefs and standards. Would the touching of a person's private parts without their consent cannot be defined as sexual according to a reasonable person's standards? We must not ignore that E represents that he found the touching in no way gratifying. However, this is not a requirement of the Sexual Offences Act 2003 section 5.

It is the very fact that the act was sexual, touching sexual organs without consent which by contemporary standards of morality and privacy is clearly not acceptable. See George [1956] Crim LR 52, there was not an indecent assault where D attempted to remove V's shoe even though this was something he found sexually gratifying. This was because there were no circumstances of indecency. In E's case, the act was indeed indecent and could be described as "sexual", even though he may not have been sexually gratified by the experience, so he is liable for sexual assault.

Returning to Justice Heaton's comments on the points of law of general public importance which were involved in the decision, namely: "(a) Is a defendant entitled to be acquitted of the offence of sexual assault contrary to section 5 of the Sexual Offences Act 2002, if the touching could be defined as "non-sexual"? (b) If yes, what grounds must this belief be held on? " Examining Justice Heaton's second point, we can uncover the final deciding point of this case. On what grounds did E hold the belief that his touching was non-sexual?

I would say that this point whilst relevant, is not of the greatest importance. The most important question which we must ask is; on what grounds did E believe that he could pursue with the touching without F's consent? The fact that E led a sheltered life does not provide him with lawful justification for not obtaining his cousin's consent. There is nothing in section 5 that allows for E's conduct, and so I have no choice but to agree with my learned friend Justice Heaton.

Having clarified the issue of the meaning of sexual to include all assault that right-minded persons would consider as being "offensive to contemporary standards of modesty and privacy". It would have been a strange result to conclude that Parliament had created section 5(1)(b) to exclude cases where the touching had not lead to sexual gratification of the defendant, but could still be termed as "sexual" by reasonable standards. For these reasons, I dismiss the appeal.

I add that any other conclusion would result in the unsatisfactory position that the offence of sexual assault would lose much of its authority and provide for a leeway for future offenders to escape conviction. MR JUSTICE STEVENS I agree that the appeal should be dismissed for the reasons which my noble and learned friend Lord Justice Malin has given. MR JUSTICE COUGHLIN For the reasons given by my learned friend Lord Justice Malin, I would dismiss the appeal.