R v Court

HOUSE OF LORDS

[1988] 1 AC 28, [1988] 2 All ER 221, [1988] 2 WLR 1071, 87 Cr App Rep 144,
[1988] Crim LR 537

HEARING-DATES: 20, 21 JANUARY, 28 APRIL 1988

28 April 1988

CATCHWORDS:
Criminal law -- Indecent assault -- Mental element -- Motive -- Secret motive --
Assault on young girl by spanking -- Accused having secret indecent motive --
Whether evidence of secret motive admissible -- Whether prosecution required to
adduce evidence of indecent motive -- Sexual Offences Act 1956, s 14(1).

HEADNOTE:
The appellant, a 26-year-old shop assistant, pulled a 12-year-old girl visitor to the
shop across his knees and smacked her with his hand 12 times on her bottom
outside her shorts for no apparent reason. When asked by the police why he had
done so he said that he had a 'buttock fetish'. He pleaded guilty to assault, but
denied that it was indecent and contended that his statement about his 'buttock
fetish' should be excluded as evidence because it was merely a secret motive
which was not communicated to the victim and it could not make indecent an act
which was not overtly indecent. The judge refused to exclude the evidence and
directed the jury that the prosecution had to prove (i) that the appellant's conduct
was such that it would appear to an ordinary observer as an affront to modesty and
(ii) that the appellant had an indecent intention in doing what he did. The
appellant was convicted of indecent assault contrary to s 14(1) a of the Sexual
Offences Act 1956. He appealed against his conviction on the ground that the
judge had been wrong in law to admit evidence of a secret motive and to allow the
jury to consider it in deciding whether the assault had been committed in
circumstances of indecency. The Court of Appeal dismissed the appeal, holding
that the evidence of the appellant's motive was admissible. The appellant
appealed to the House of Lords.

Held (Lord Goff dissenting) -- A person was guilty of indecent assault if he

intentionally assaulted the victim and intended to commit not just an assault but
an indecent assault, i e an assault which right-minded persons would think was
indecent. Accordingly, any evidence explaining the defendant's conduct, whether
an admission by him or otherwise, was admissible to establish whether he
intended to commit an indecent assault. The appellant's statement was therefore
admissible and the appeal would be dismissed.
Decision of the Court of Appeal [1987] 1 All ER 120 affirmed on other grounds.

NOTES:
For the offence of indecent assault, see 11 Halsbury's Laws (4th edn) para 1241,
and for cases on the subject, see 15 Digest (Reissue) 1233--1234, 10521--10542.
For the Sexual Offences Act 1956, s 14, see 12 Halsbury's Statutes (4th edn) 281.

CASES-REF-TO:

Beal v Kelley [1951] 2 All ER 763, DC.

Faulkner v Talbot [1981] 3 All ER 468, [1982] 1 WLR 1528, DC.
R v Baker (1875) Times, 31 July.
R v Donovan [1934] 2 KB 498, [1934] All ER Rep 207, CCA.
R v George [1956] Crim LR 52, Assizes.
R v Kilbourne [1972] 3 All ER 545, [1972] 1 WLR 1365, CA.
R v Kimber [1983] 3 All ER 316, [1983] 1 WLR 1118, CA.
R v May [1912] 3 KB 572, CCA.
R v Pratt [1984] Crim LR 41, Crown Ct.
R v Venna [1975] 3 All ER 788, [1976] QB 421, [1975] 3 WLR 737, CA.
Sherras v De Rutzen [1895] 1 QB 918, [1895--9] All ER Rep 1167, DC.
Sweet v Parsley [1969] 1 All ER 347, [1970] AC 132, [1969] 2 WLR 470, HL.

INTRODUCTION:
Appeal

Robert Christopher Court appealed with leave of the Appeal Committee of the
House of Lords given on 16 July 1987 against the decision of the Court of Appeal,
Criminal Division (Ralph Gibson LJ, Hirst and Otton JJ) ( [1987] 1 All ER 120, [1987]
QB 156) on 17 October 1986 dismissing his appeal against his conviction on 19
February 1986 in the Crown Court at Caernarfon before Mars-Jones J and a jury on
a charge of indecent assault on a girl under the age of 13, contrary to s 14 of the
Sexual Offences Act 1956. On 2 March 1987 the Court of Appeal (Ralph Gibson LJ,
Hirst and Saville JJ), by order issued on 1 April 1987, refused leave to appeal to the
House of Lords but certified that a point of law of general public importance (set
out at p 228, post) was involved in the decision to dismiss the appeal. The facts
are set out in the opinion of Lord Ackner.

COUNSEL:
Martin Thomas QC and T A Halbert for the appellant.

A C Carlile QC and Robin Spencer for the Crown.

JUDGMENT-READ:
Their Lordships took time for consideration. 28 April. The following opinions were
delivered.

PANEL: LORD KEITH OF KINKEL, LORD FRASER OF TULLYBELTON, LORD GRIFFITHS,

LORD ACKNER AND LORD GOFF OF CHIEVELEY

JUDGMENTBY-1: LORD KEITH OF KINKEL

JUDGMENT-1:
LORD KEITH OF KINKEL. My Lords, I have had the opportunity of considering in
draft the speech to be delivered by my noble and learned friends Lord Griffiths and
Lord Ackner. I agree with them entirely, and will add only a few observations of my
own.
A wicked intention is an essential ingredient of the offence of indecent assault, as
indeed it is of most other crimes against the person. For the most part, the wicked
intention can readily be inferred from the facts found proved as to the
circumstances of the assault, unless there are indications that those features of the
circumstances which are capable of being considered indecent were not intended,
as in the instance put of a common assault accidentally involving damage to a
woman's clothing. In a narrow range of cases, however, the circumstances may
not point unequivocally to the requisite wicked intention. The delivery of
chastisement to the buttocks of a child is capable of presenting a case of that
nature, since such chastisement is not necessarily indicative of an intention to do
something indecent. Where, however, there is direct evidence, as there was in the
present case in the shape of the appellant's statement about buttock fetish, that it
was the assailant's intention to use the victim for the purpose of gratifying a
peculiar sexual instinct, and that his action did in fact amount to a using of her for
that purpose, such evidence can, in my opinion, properly be taken into account so
as to resolve any ambiguity about the nature of the Act. The contrary view seems
to me to fly in the face of all common sense.
I would therefore hold that the trial judge correctly admitted the evidence in
question, and dismiss the appeal.

JUDGMENTBY-2: LORD FRASER OF TULLYBELTON

JUDGMENT-2:
LORD FRASER OF TULLYBELTON. My Lords, I have had the advantage of reading in
draft the speeches of my noble and learned friends Lord Keith, Lord Griffiths and
Lord Ackner. I agree that, for the reasons given by them, the evidence of the
appellant is admissible and that this appeal should be dismissed.

JUDGMENTBY-3: LORD GRIFFITHS

JUDGMENT-3:
LORD GRIFFITHS. My Lords, this appeal turns on the answer to the following
question. On a trial of indecent assault arising out of a spanking delivered by a
man to the buttocks of a young girl, is the evidence that he told the police that he
did it because of a 'buttock fetish' admissible evidence which the jury may consider
when deciding whether the assault was indecent? I am bound to say my
instinctive answer was Yes, of course it is. I have now had the advantage of
reading the speeches of my noble and learned friends Lord Ackner and Lord
Goff. My answer remains the same. I agree that for the reasons given by my
noble and learned friend Lord Ackner the evidence is admissible and that this
appeal should be dismissed.
It is only because of the difference of judicial opinion to which this case has given
rise that I venture to add some observations of my own.
The gravamen of the offence of indecent assault is the element of indecency. It is
this element of indecency that distinguishes the offence from common assault and
makes it such a potentially serious offence carrying a maximum term of
imprisonment of ten years. By indecency is meant conduct that right-thinking
people will consider an affront to the sexual modesty of a woman.
Although the offence of indecent assault may vary greatly in its gravity from an
unauthorised teenage sexual groping at one end of the scale to near rape at the
other, it is in any circumstances a nasty, unpleasant offence for which a conviction
is likely to carry a far greater social stigma than a conviction for common
assault. There is agreement that the offence cannot be committed accidentally,
as, for instance, in the example given by Lord Ackner of ripping a woman's clothing
while attempting to force an exit from a tube train. Once this concession is made it
is apparent that some extra mental element is required than that necessary for
common assault, for, in the example given, a person using unnecessary violence to
push through the crowd would have the necessary intent to commit an assault. It
seems natural to me that this extra mental element should be that which
constitutes the essence of the offence, namely an intent to do something indecent
to the woman in the sense of an affront to her sexual modesty or, in other words,
an intent to do that which the jury find indecent. Indecent assault is after all a
sexual offence appearing in the Sexual Offences Act 1956 and one should on
general principle look for a sexual element as an ingredient of the offence.
In none of the authorities before the present decision of the Court of Appeal
( [1987] 1 All ER 120, [1987] QB 156) has it been decided that an indecent intent is
not a necessary ingredient of the offence, but there has been little discussion of
this aspect of the offence in the authorities. This I do not find surprising, for in the
vast majority of the cases of indecent assault that come before the courts there is
no question that what the accused is alleged to have done to the woman was
indecent unless he had her consent. If the plea is not guilty, the defence is almost
invariably either 'I did not do that which the prosecution alleges' or, alternatively,
that 'I did it with the woman's consent'. The question of intent did however arise in
R v Pratt [1984] Crim LR 41, where the recorder directed the jury that it was
necessary to prove an indecent intention and this case received the support of
Professor J C Smith QC in his commentary in the Criminal Law Review where he
wrote:

'It is respectfully submitted that the ruling was clearly correct. The act must be
objectively indecent but the essence of the offence is the indecent intention with
which it is done.'

I also agree with Lord Ackner that it is implicit in the decision of the Court of Appeal
in v Kilbourne [1972] 3 All ER 545, [1972] 1 WLR 1365 that an indecent intent was
regarded by the Court of Appeal as an ingredient of the offence.
I cannot accept the Court of Appeal's definition of the mental element, which it
defined as proof 'that the accused intentionally assaulted the victim and that he
was aware of the indecent circumstances of what he did or was reckless as to their
existence'. In the first place, I have the greatest difficulty in envisaging how you
can be recklessly indecent unless this is meant to include accidental indecency
which I have already said should not make a person guilty of this offence. Second,
I think that the only circumstances in which recklessness is likely to arise in this
offence is on the question of whether or not the man believed he had the woman's
consent, and to introduce it as a concept in other circumstances is likely to lead to
confusion.
I turn now to consider whether the evidence of the accused's explanation for his
conduct as a 'buttock fetish' was admissible. There is a distinction to be drawn in
criminal law between motive and intent although it will very rarely be necessary to
enter on a discussion of this distinction with a jury and any unnecessary attempt to
do so is likely to cause confusion and do more harm than good. But, to illustrate
what I mean in the context of indecent assault, the necessary intent is to commit
an assault which the jury as right-thinking people consider to be sexually
indecent. The motive for such an act will usually be to obtain sexual gratification,
but it need not necessarily be so. A man might strip a woman in public with the
motive of obtaining sexual gratification or, alternatively, with the motive of
revenge to humiliate her but whichever his motive he would undoubtedly be guilty
of indecent assault because his intentional stripping of her clothing is an indecent
affront to her sexual modesty. Motive generally throws light on intention and is
therefore generally admissible to prove intention.
The appellant admitted that he had assaulted the girl and the jury had to decide
whether his behaviour was indecent. Whether or not right-thinking people will
consider an action indecent will sometimes depend on the purpose with which the
action is carried out. An obvious example is the examination of an unconscious
woman's private parts. If carried out by a doctor for a proper medical purpose no
one would consider such an examination indecent. If carried out by a stranger for
a prurient interest everyone would consider it indecent.
Spanking a girl's bottom is an equivocal action. The buttocks are an intimate part
of the body in close proximity to the sexual organs and unauthorised handling of
that part of the body is certainly capable of being indecent. But the buttocks are
also a part of the body on which it is possible to inflict pain without the risk of
serious physical damage and have long been recognised as an area of the body to
which chastisement may be administered by those having proper authority to do
so without anyone thinking it indecent. If a juryman is asked to decide whether a
man beating a young girl's bottom is acting indecently, the first question he is
likely to ask is: why was he doing it? If the answer is that she had been naughty
and he was punishing her, the juryman may well consider that if the man was a
stranger he should not have laid hands on the girl and was guilty of assault, but I
doubt if he would consider the man's action to be indecent. On the other hand, if
the juryman was told that the man was spanking the girl to satisfy a buttock fetish,
I would be surprised indeed if he did not think it was indecent.
The fact is that right-thinking people do take into account the purpose or intent
with which an act is performed in judging whether or not it is indecent. If evidence
of motive is available that throws light on the intent it should be before the jury to
assist them in their decision. Suppose, in the present case, the appellant had said
to the police, 'I thought the girl had been stealing and I beat her to stop her doing
it again.' Such evidence would surely have been admissible to attempt to
persuade the jury that this was an act of chastisement and therefore they should
not regard it as indecent. If, on the other hand, evidence is available that shows
the spanking was not an act of chastisement but carried out with the intention of
obtaining perverted sexual gratification, it would, in my view, be an affront to
common sense to withhold that evidence from the jury when asking them to decide
if this man had behaved indecently. Accordingly, I agree with the judge that the
evidence was admissible.

JUDGMENTBY-4: LORD ACKNER

JUDGMENT-4:
LORD ACKNER. My Lords, this appeal concerns the mental element required for
proof of the offence of indecent assault. It arises in the following circumstances.

The facts
The appellant, aged at the material time 26 years, was an assistant in his
mother's gift shop in Abersoch. In the summer of 1985 J, who was then 12 years of
age, was on holiday in that area. She had been to the shop on several occasions
during her holiday. On two of those occasions the appellant had asked her, 'Have
you ever been spanked? ' To this question she replied, 'No.' The appellant than
said, 'That's the kind of girl I like.' Some days later when J entered the shop, the
appellant again asked her if she had ever been spanked and when she said, 'No,'
he asked her, 'Will you let me spank you? ' She said, 'No.' He then pushed her to
the back of the shop and sat on a chair watching her. She was dressed in shorts
and a T-shirt. As she began to walk past him, he caught hold of her right upper
arm with his left hand and pulled her across his knees. He said nothing, but struck
her on the outside of her shorts across her bottom with his right hand about 12
times. The girl's brother then appeared and the appellant stopped hitting her. J
got off his lap and as she and her brother walked towards the counter the appellant
said to her, 'If you don't tell you can have these,' and he then picked up some
items from the display and put them in the bag she was carrying, saying, 'If you
don't tell you can have these.'
The girl on returning home appeared to be very upset by the incident, explained
to her mother in the hearing of her father what had happened and he, having
subsequently obtained an apology, but no explanation from the appellant for his
conduct, informed the police. When interviewed by the police the appellant
admitted spanking the girl and when asked, 'What makes you want to do this? ' he
replied: 'I don't know buttock fetish.' The officer asked how long had he had this
fetish and he replied, 'About nine years.'

The trial
On 19 February 1986 in the Crown Court at Caernarfon at a trial presided over by
Mars-Jones J the appellant was convicted of an indecent assault on the girl and was
sentenced to probation for three years on condition that he received psychiatric
treatment for 12 months. At the trial the appellant did not contest that he had
committed an assault. In the absence of the jury he had offered a plea to that
offence, but it was not accepted by the prosecution. The defendant did not give
evidence at the trial. His defence was that the assault, which he admitted he had
committed, was not an indecent one. The judge rejected the submission of the
appellant's counsel that the statement about the appellant's 'buttock fetish' should
be excluded. The judge having heard submissions by counsel directed the jury
that the prosecution had to prove firstly that the appellant's conduct was such that
'it would appear to an ordinary observer as an affront to modesty conduct which
contravened right-thinking people's ideas of standards of decent behaviour' and
secondly that the appellant had 'an indecent intention in doing what he did'. The
judge admitted in evidence the statement made by the appellant on the basis that
it was material from which the jury could deduce his intention, which the
prosecution had submitted was the gratification of his own peculiar sexual feelings.

The Court of Appeal

It is particularly important to bear in mind that the essential basis of the appeal
was that the judge was wrong to admit the statement about the 'buttock fetish'
because, so it was contended, it was merely an admission of the appellant's secret
motive, which had not been communicated to the victim of the assault and could
not therefore make the assault an indecent one. It was argued that the cause of
the wrongful admission of this damaging evidence was the judge's direction that
the prosecution had to prove that the accused had an indecent intention in doing
what he did. It was accordingly submitted by the appellant that no mental element
is required with reference to the indecency ingredient of the offence. It was
contended before the Court of Appeal, which contention was maintained before
your Lordships, 'that the mental element required for indecent assault is that
required for common assault, namely that the offender intends to use force on the
victum, or is reckless as to the infliction of force, without his or her consent'.
As to the admissibility of the appellant's statement about the 'buttock fetish', it is
apparent from the judgment of the Court of Appeal ([1987] 1 All ER 120, [1987] QB
156) that the prosecution contended that, given that the circumstances of the
assault were such that the jury could hold them to be indecent, then the
uncommunicated purpose of the appellant should be taken into account by the jury
in deciding whether the circumstances were indecent. It is not, however, apparent
from the judgment what were the prosecution's submissions with regard to the
mental element required for the proof of the offence. Before your Lordships,
counsel for the Crown, consistent with his written case, has argued 'that no more
need be proved than for common assault, namely that the defendant intends to
inflict force or the fear of force on the victim, or is reckless thereto, without the
victim's consent' subject to the proviso expressed in these terms 'that evidence of
the defendant's state of mind is admissible in appropriate cases'. This is a
surprising submission since, not only does it not support the decision of the Court
of Appeal, to which I shall refer hereafter but, in addition, the proviso is, for the
reasons I give later, quite inconsistent with the substantive submission.
The Court of Appeal had regard in particular to two decisions. In R v Kilbourne
[1972] 3 All ER 545, [1972] 1 WLR 1365 Lawson J directed the jury, inter alia, as to
what constituted an indecent assault, in the following terms (see [1972] 3 All ER
545 at 551, [1972] 1 WLR 1365 at 1372):

'It means a deliberate touching of somebody else's body, clothed or unclothed,

with an indecent intention. That is to say, a deliberate touching which is activated
by some indecent purpose.'

That direction was criticised by the Court of Appeal as being 'much too wide and
could cover acts which were nothing more than preliminary steps towards
committing an indecent assault, as for example, touching a woman's hand' (see
[1972] 3 All ER 545 at 551, [1972] 1 WLR 1365 at 1372).
Having considered that decision, the Court of Appeal concluded that the rejection
by the court in R v Kilbourne of the definition proposed by Lawson J established
that an indecent purpose by itself is not enough. However, the court went on to
say 'it does not decide whether or not an indecent purpose or intention is an
essential ingredient of the offence' (see [1987] 1 All ER 120 at 123, [1987] QB 156
at 160). I would have thought that, although obiter, and sub silentio, it did just
that.
The other case to which the Court of Appeal gave particular consideration was
that of v Kimber [1983] 3 All ER 316, [1983] 1 WLR 1118, where the appellant was
charged with an indecent assault on a woman who was a patient in a mental
hospital. One of the issues considered by the Court of Appeal was whether the
appellant was entitled to raise the defence that he believed that the woman had
consented to what he did. The trial judge ruled that he could not. In his judgment
the question was: was she consenting? It did not matter what the defendant
thought or believed. Lawton LJ giving the judgment of the Court of Appeal said
( [1983] 3 All ER 316 at 319, [1983] 1 WLR 1118 at 1121--1122):

'The offence of indecent assault is now statutory: see s 14 of the Sexual Offences
Act 1956. The Crown had to prove that the appellant made an indecent assault on
Betty. As there are no words in the section to indicate that Parliament intended to
exclude mens rea as an element in this offence, it follows that the Crown had to
prove that the appellant intended to commit it. This could not be done without first
proving that the appellant intended to assault Betty. In this context assault clearly
includes battery. An assault is an act by which the defendant intentionally or
recklessly causes the complainant to apprehend immediate, or to sustain, unlawful
personal violence: see R v Venna [1975] 3 All ER 788 at 793, [1976] QB 421 at
428--429. In this case the appellant by his own admissions did intentionally lay his
hands on Betty. That would not, however, have been enough to prove the
charge. There had to be evidence that the appellant had intended to do what he
did unlawfully. When there is a charge of indecent assault on a woman, the
unlawfulness can be proved, as was sought to be done in R v Donovan [1934] 2 KB
498, [1934] All ER Rep 207, by evidence that the defendant intended to cause
bodily harm. In most cases, however, the prosecution tries to prove that the
complainant did not consent to what was done. The burden of proving lack of
consent rests on the prosecution: see R v May [1912] 3 KB 572 at 575 per Lord
Alverstone CJ. The consequence is that the prosecution has to prove that the
defendant intended to lay hands on his victim without her consent. If he did not
intend to do this, he is entitled to be found not guilty and if he did not so intend
because he believed she was consenting, the prosecution will have failed to prove
the charge. It is the defendant's belief, not the grounds on which it was based,
which goes to negative the intent.'

In R v Kimber, as the Court of Appeal pointed out, there was no issue with
reference to the indecency. In the instant appeal an intentional assault is
admitted, and it is the mental element required to establish that this assault comes
within the category of assaults which can be properly described as indecent which
is in issue.
After considering these decisions, Ralph Gibson LJ, giving the judgment of the
Court of Appeal, said ( [1987] 1 All ER 120 at 124, [1987] QB 156 at 162):

'On any view the submission for the appellant that no mental element is required
with reference to indecency is impossible of acceptance having regard not least to
R v Kimber [1983] 3 All ER 316, [1983] 1 WLR 1118. An indecent assault is an
assault committed in circumstances of aggravation. It seems to us that at least it
must be proved that the accused intentionally assaulted the victim with knowledge
of the indecent circumstances or being reckless as to the existence of them.'

As an illustration of the need to establish the accused's 'knowledge of the indecent

circumstances' the court gave the case of a person who used words which could
constitute circumstances of indecency towards the person assaulted, but did so in
a foreign language, not knowing that they were indecent, as a result of a malicious
trick by a third party. It concluded that even though the words were, and were
understood by the victim to be, indecent he could not be convicted of an indecent
assault.
Although the Court of Appeal used the phrase 'at least it must be proved', its final
conclusion was that the essential mental element of an indecent assault was that
the accused intentionally assaulted the victim with knowledge of the indecent
circumstances or being reckless as to the existence of them. No proof of any
further indecent intention was required.
As to the admission of the 'buttock fetish' statement, which had stimulated the
appeal, the Court of Appeal held that it did not follow from its decision that if
evidence of the appellant's purpose or motive exists it must be excluded as
irrelevant. Ralph Gibson LJ said ( [1987] 1 All ER 120 at 126, [1987] QB 156 at
164--165):
'It seems to us that the grabbing of a 12-year-old girl by a 27-year-old man, who
placed her in his lap, face down, in order to smack her bottom over her shorts, is
likely to vary in the nature of the act as it is done, and as it will seem to the child
who suffers it, according to the purposes of the man. It may be the ordinary
innocent rough play of an uncle and niece in which nothing indecent obtrudes. If
the man is actuated by an indecent motive, it is likely in our view to affect the way
in which he takes hold of the child and restrains her and then strikes her. The man
may well explain that his secret motive in fact had no effect on his actions. In our
view, in the rare case in which the prosecution has available evidence of an
admitted secret motive which actuated the accused to commit the particular
offence charged, it is open to the prosecution to call that evidence. It was in our
view admissible in this case and we see no reason why the judge should have
excluded it . . . The jury were, as we have said, entitled to assess the nature of the
appellant's acts by reference to his proved purpose.'

However, in the view of the Court of Appeal the judge should have directed the jury
'that the secret motive cannot turn into circumstances of indecency circumstances
which without it the jury would not regard as indecent' (see [1987] 1 All ER 120 at
126, [1987] QB 156 at 165).
The Court of Appeal saw no ground for regarding the verdict as unsafe or
unsatisfactory, and accordingly it dismissed the appeal but certified that it involved
a point of law of public importance, namely:

'Whether it is correct that on a charge of indecent assault the prosecution must

prove:--(a) That the accused intentionally assaulted the victim and (b) that he was
aware of the indecent circumstances of what he did, or was reckless as to their
existence but that it is not necessary for the prosecution to prove in addition that
the accused had an indecent purpose or intention.'

On the hearing of the application for leave to appeal, counsel for both the
appellant and the Crown were critical of the judgment of the Court of Appeal and
drew your Lordships' attention to the contrary views of certain well-known and
respected academic writers expressed both before and following the
decision. However, in granting leave your Lordships observed that the grant of
leave should not be interpreted by the appellant as indicating that his prospects of
his conviction being quashed were strong.

The mental element of the offence

As previously stated, the appellant maintained his submission made to the Court
of Appeal that no mental element is required with reference to
indecency. Consistent with his written case counsel rejected the test propounded
by the Court of Appeal arguing that 'the requirement of proof of knowledge of or
recklessness as to the circumstances of indecency is superfluous and
confusing'. As previously stated, counsel for the Crown adopted the same line,
subject to the proviso that in appropriate cases the jury may have regard to the
appellant's state of mind at the time of the assault, where such evidence is
probative of the true nature of the circumstances accompanying the assault,
adopting the very words of the Court of Appeal quoted above that 'the jury
were . . . entitled to assess the nature of the appellant's acts by reference to his
proved purpose'.
Section 14(1) of the Sexual Offences Act 1956 provides: 'It is an offence . . . for a
person to make an indecent assault on a woman.' While it is in no way inaccurate
to say that an indecent assault is an aggravated assault, the aggravation may be
very serious. This was made clear by the Sexual Offences Act 1985, which
increased the maximum punishment, which was five years if committed on a girl
under 13, otherwise two years, to a maximum in both cases of ten
years. Although, as the Court of Appeal pointed out in its judgment, the section is
silent as to the necessary mental element in the offence ( [1987] 1 All ER 120 at
123, [1987] QB 156 at 161), it is necessary to have in mind the words of Wright J in
Sherras v De Rutzen [1895] 1 QB 918 at 921, [1895--9] All ER Rep 1167 at 1169:
'There is a presumption that mens rea, an evil intention, or a knowledge of the
wrongfulness of the act, is an essential ingredient in every offence but that
presumption is liable to be displaced either by the words of the statute creating the
offence or by the subject-matter with which it deals, and both must be considered .
. .'

This approach was reaffirmed in Sweet v Parsley [1969] 1 All ER 347 at 349, [1970]
AC 132 at 148 by Lord Reid when he said:

'. . . whenever a section is silent as to mens rea there is a presumption that, in

order to give effect to the will of Parliament, we must read in words appropriate to
require mens rea.'

It cannot, in my judgment, have been the intention of Parliament that an assault

can, by a mere mistake or mischance, be converted into an indecent assault, with
all the opprobium which a conviction for such an offence carries. To take one of
the less imaginative examples discussed in the course of the arguments, it may be
a common occurrence during travel on the London tube during rush hours for a
person suddenly to realise belatedly that the train has stopped at the very station
where he wishes to alight, without his having taken the wise precaution of getting
close to its doors. Such a person may well in his anxiety to get out, rather than be
carried on to the next stop, use unnecessary force in pushing his way through his
fellow passengers. If he thus came into contact with a woman, then he would be
guilty of having assaulted her. If something that he was carrying, such as an
umbrella, became caught up, as it might well do, in her dress as he pushed past,
thus tearing away her upper clothing, he would in my judgment be guilty only of an
assault. He would not be guilty of an indecent assault. The contrary result would
appear to be possible if the Court of Appeal's test was applied. It would certainly
follow, if the submission made in their cases by counsel both for the appellant and
the prosecution were right, that to establish the mental element in the offence of
indecent assault no more need to established than for common assault.
It was common ground before your Lordships, and indeed it is self-evident, that
the first stage in the proof of the offence is for the prosecution to establish an
assault. The 'assault' usually relied on is a battery, the species of assault
conveniently described by Lord Lane CJ in Faulkner v Talbot [1981] 3 All ER 468 at
471, [1981] 1 WLR 1528 at 1534 as--

'any intentional touching of another person without the consent of that person and
without lawful excuse. It need not necessarily be hostile or rude or aggressive, as
some of the cases seem to indicate.'

But the 'assault' relied on need not involve any physical contact but may consist
merely of conduct which causes the victim to apprehend immediate and unlawful
personal violence. In the case law on the offence of indecent assault, both
categories of assault feature.
The judge in assisting the jury in his summing up as to the meaning of an
indecent assault adopted, inter alia, a definition used by Professor Glanville
Williams in Textbook of Criminal Law (2nd edn, 1983) p 231: ' ''indecent'' may be
defined as ''overtly sexual''.' This is a convenient shorthand expression, since
most, but not necessarily all, indecent assaults will be clearly of a sexual nature
although they, as in this case, may have only sexual undertones. A simpler way of
putting the matter to the jury is to ask them to decide whether 'right-minded
persons would consider the conduct indecent or not'. It is for the jury to decide
whether what occurred was so offensive to contemporary standards of modesty
and privacy as to be indecent.
It also was common ground before your Lordships, as it was in the Court of
Appeal, that, if the circumstances of the assault are incapable of being regarded as
indecent, then the undisclosed intention of the accused could not make the assault
an indecent one. The validity of this proposition is well illustrated by R v George
[1956] Crim LR 52. The basis of the prosecution's case was that the defendant
on a number of occasions removed a shoe from a girl's foot and that he did so, as
indeed he admitted, because it gave him a kind of perverted sexual
gratification. Counsel for the prosecution submitted that an assault was indecent if
it was committed to gratify an indecent motive in the mind of a defendant, even
though there was no overt circumstances of indecency. Streatfeild J ruled that an
assault became indecent only if it was accompanied by circumstances of indecency
towards the person alleged to have been assaulted, and that none of the assaults
(the removal or attempted removal of the shoes) could possibly amount to an
indecent assault.
Again it was common ground that if, as in this case, the assault involved touching
the victim it was not necessary to prove that she was aware of the circumstances
of indecency or apprehended indecency. An indecent assault can clearly be
committed by the touching of someone who is asleep or unconscious.
As to the facts of this case, it is important to bear in mind that at the trial not only
did the appellant admit that he was guilty of an assault but his counsel expressly
conceded that what had happened was capable of amounting to an indecent
assault. That concession was repeated in the Court of Appeal and accepted by the
court as being a correct concession. Sensibly no attempt was made before your
Lordships to withdraw this concession, for the sound reason that the explanation of
this unprovoked assault could reveal that the assault was an indecent one, as
indeed the girl's father suspected and as the jury so decided.
The assault which the prosecution seek to establish may be of a kind which is
inherently indecent. The defendant removes, against her will, a woman's
clothing. Such a case, to my mind, raises no problem. Those very facts, devoid of
any explanation, would give rise to the irresistible inference that the defendant
intended to assault his victim in a manner which right-minded persons would
clearly think was indecent. Whether he did so for his own personal sexual
gratification or because, being a misogynist or for some other reason, he wished to
embarrass or humiliate his victim seems to me to be irrelevant. He has failed, ex
hypothesi, to show any lawful justification for his indecent conduct. This, of course,
was not such a case. The conduct of the appellant in assaulting the girl by
spanking her was only capable of being an indecent assault. To decide whether or
not right-minded persons might think that assault was indecent, the following
factors were clearly relevant: the relationship of the defendant to this victim (were
they relatives, friends or virtually complete strangers? ), how had the defendant
come to embark on this conduct and why was he behaving in this way? Aided by
such material, a jury would be helped to determine the quality of the act, the true
nature of the assault and to answer the vital question: were they sure that the
defendant not only intended to commit an assault on the girl, but an assault which
was indecent was such an inference irresistible? For the defendant to be liable to
be convicted of the offence of indecent assault, where the circumstances of the
alleged offence can be given an innocent as well as an indecent interpretation,
without the prosecution being obliged to establish that the defendant intended to
commit both an assault and an indecent one, seems to me quite unacceptable and
not what Parliament intended.
Much reliance was placed by counsel for the appellant on the definition of
'indecent assault' in Beal v Kelley [1951] 2 All ER 763 at 764 as approved by Lord
Goddard CJ: '. . . an assault, accompanied with circumstances of indecency on the
part of the prisoner'. It was submitted to your Lordships that an indecent motive
can only become 'a circumstance of indecency' if it is communicated to the victim
by means of words or gestures at the time of the assault. If the motive is not
communicated it is not such a circumstance. However, the definition which Lord
Goddard CJ accepted has not the force of a statute. It was wholly appropriate to
the facts of that case, where the defendant had indecently exposed himself to a
young boy and, when the boy refused to handle him indecently, he got hold of the
boy's arm and pulled him towards himself. In such a case and in many others cited
to us the assault in itself was not indecent. It was the combination of the assault
with circumstances of indecency that established the constituents of the
offence. In the instant case, it is the assault itself, its true nature, an assault for
sexual gratification, which was capable of amounting to an indecent assault.
The jury in their question to the judge were concerned with the position of a
doctor who carried out an intimate examination of a young girl. Mars-Jones J dealt
with their point succinctly by saying (see [1987] 1 All ER 120 at 127, [1987] QB
156 at 166):

'In that situation what is vital is whether the examination was necessary or not. If
it wasn't necessary but indulged in by the medical practitioner it would be an
indecent assault. But if it was necessary, even though he got sexual satisfaction
out of it, that would not make it an indecent assault.'

I entirely agree. If it could be proved by the doctor's admission that the consent of
the parent, or if over 16 the patient, was sought and obtained by the doctor falsely
representing that the examination was necessary, then, of course, no true consent
to the examination had ever been given. The examination would be an assault and
an assault which right-minded persons could well consider was an indecent one. I
would not expect that it would make any difference to the jury's decision whether
the doctor's false representations were motivated by his desire for the sexual
gratification which he might achieve from such an examination or because he had
some other reason, entirely of his own, unconnected with the medical needs or
care of the patient, such as private research, which had caused him to act
fraudulently. In either case the assault could be, and I expect would be,
considered as so offensive to contemporary standards of modesty or privacy as to
be indecent. A jury would therefore be entitled to conclude that he, in both cases,
intended to assault the patient and to do so indecently. I can see nothing illogical
in such a result. On the contrary, it would indeed be surprising if in such
circumstances the only offence that could be properly charged would be that of
common assault. No doubt the judge would treat the offence which had been
motivated by the indecent motive as the more serious.
Our attention has been drawn to a number of cases, but they do not, except with
one exception, focus sharply on the question of the mental element required to be
established in this offence. The one exception is R v Pratt [1984] Crim LR
41. That was a case tried in the Crown Court at Plymouth and presided over by Mr
Clive Nicholls QC sitting as an assistant recorder. The facts were very
strange. Two 13-year-old boys were engaged in night fishing when they were
suddenly threatened by the defendant with a gun. As each boy was forced to
undress, the other was obliged to shine a torch on him. The defendant stood some
way from the boys and touched neither of them. He gave evidence that his sole
motive in causing the boys thus to expose their private parts was to search for
cannabis which he thought the boys had taken from him the previous
afternoon. The prosecution submitted that the defendant's evidence could not
provide a defence to the charges, since it was only necessary for the prosecution
to prove a common assault and, having proved a common assault, for there to be
circumstances of indecency. It was not relevant for the defendant's state of mind
to be further considered. In short, the prosecution needed only to prove intention
or recklessness as to the common assault and the jury could then find if there were
circumstances of indecency accompanying the assault. The assistant recorder
held that it was necessary for the prosecution to prove an indecent intention and
he decided to admit the evidence. Contrary to the view taken by the Court of
Appeal, I consider that the decision of the assistant recorder on the facts of that
case was right. The defendant was entitled to put before the jury his explanation
of his strange conduct in order to contend that the prosecution had not established
that he intended to commit an assault which was indecent. If the jury thought that
his explanation might be true, they might decide that right-minded persons would
not think that what he had done in the circumstances was indecent.
I, therefore, conclude that on a charge of indecent assault the prosecution must
not only prove that the accused intentionally assaulted the victim, but that in so
doing he intended to commit an indecent assault, i e an assault which right-minded
persons would think was indecent. Accordingly, any evidence which tends to
explain the reason for the defendant's conduct, be it his own admission or
otherwise, would be relevant to establish whether or not he intended to commit,
not only an assault, but an indecent one. The doctor's admissions in the two
contrasting examples which I have given would certainly be so relevant. The
appellant's admission of 'buttock fetish' was clearly such material. It tended to
confirm, as indeed did the events leading up to the assault and the appellant's
conduct immediately thereafter, that what he did was to satisfy his peculiar sexual
appetite. It was additional relevant evidence. It tended to establish the sexual
undertones which gave the assault its true cachet.
If, contrary to my view, the Court of Appeal correctly decided that, in addition to
establishing the assault, all the prosecution had to do was to establish that the
defendant was aware of the indecent circumstances of what he did or was reckless
as to their existence, I cannot follow how his uncommunicated motive could have
been relevant and therefore, as the Court of Appeal held, admissible evidence. As
Professor Glanville Williams has pointed out in 'What is an Indecent Assault?'
(1987) 137 NLJ 870 at 872, since there was no evidence that the appellant did
anything other than spank the girl as if he was chastising her, there was no
evidential basis for suggesting that his explanation of his conduct was relevant
because it was 'likely to affect the way in which he takes hold of the child and
restrains her and then strikes her'. Counsel for the Crown has not sought to uphold
the court's reasoning. He submits that in the no doubt rare cases where there is
evidence of the accused's state of mind which discloses his motive, purpose or
intention such evidence is admissible 'as probative of the true nature and
circumstances accompanying the assault'. He submitted that 'the defendant's
motive is no less a circumstance of indecency towards the complainant, merely
because it is secretive'. This submission cannot stand side by side with the
contention that no mental element is required to be proved with reference to
indecency. If all that has to be proved is the intended assault, the evidence of the
accused's state of mind relative to the indecent ingredient of the offence must be
wholly irrelevant. However, the resolute determination shown by the Crown before
your Lordships to establish the admissibility of such evidence underlines the
obvious, that it would be an affront to common sense that if such evidence exists it
must be concealed from the jury, who must thus be deprived of the answer to the
vital question necessary for the proper evaluation of this accused's behaviour why
did he behave: like that?
I would accordingly dismiss the appeal and answer the certified question as
follows. On a charge of indecent assault the prosecution must prove (1) that the
accused intentionally assaulted the victim, (2) that the assault, or the assault and
the circumstances accompanying it, are capable of being considered by right-
minded persons as indecent, (3) that the accused intended to commit such an
assault as is referred to in (2) above. These requirements, as counsel for the
Crown confirmed, should give rise to no difficulty or complication.
I would add that evidence, if any, of the accused's explanation for assaulting the
victim, whether or not it reveals an indecent motive, is admissible both to support
or to negative that the assault was an indecent one and was so intended by the
accused.

JUDGMENTBY-5: LORD GOFF OF CHIEVELEY

JUDGMENT-5:
LORD GOFF OF CHIEVELEY. My Lords, this appeal comes before your Lordships'
House in unusual circumstances. The judge directed the jury that, before they
could convict the appellant of the offence of indecent assault, they had to conclude
that the appellant had an 'indecent intention' (an ambiguous phrase about which I
shall have more to say in a moment). On that basis, he was able to rule that a
statement by the appellant to the police that the motive for his conduct in
spanking the girl on her bottom was a 'buttock fetish' was admissible in
evidence. The appellant appealed against his conviction on the ground, inter alia,
that the judge had so misdirected the jury, and that the evidence of his motive was
inadmissible. The Court of Appeal held that the judge had so misdirected the jury,
but nevertheless held the evidence admissible and dismissed the appeal (see
[1987] 1 All ER 120, [1987] QB 156). On the appeal before your Lordships' House,
neither prosecution nor defence counsel sought to uphold the judge's direction to
the jury on intent. Obviously, it would have been easier for the prosecution to
uphold the conviction if they were to submit that the judge's direction was correct
in law. But, as leading counsel for the Crown frankly told your Lordships in
argument, he felt that it was his duty to resist that temptation because, in his view,
the judge's direction was contrary to the Sexual Offences Act 1956, contrary to
judicial interpretation of the Act which had been consistently applied for many
years and a wholly unnecessary complication which would be likely to bedevil trials
for an offence which, unhappily, comes frequently before juries and magistrates,
and contrary to principle. He sought therefore to uphold the conviction on other
grounds, viz that an indecent assault is an assault committed in circumstances of
indecency and that the motive of the appellant in the present case could properly
be placed before the jury as probative of the true nature of the circumstances
accompanying the assault.
Now it is plain that, if leading counsel for the Crown has, after careful
consideration of an argument which would be of assistance to the prosecution's
case, decided that he cannot support it on the grounds I have indicated, a court
should consider long and carefully whether it should, nevertheless, itself espouse
and adopt any such argument. Having undertaken that task, I have come to the
conclusion that, as is usually the case in such circumstances, leading counsel was
entirely justified in the course which he has taken, for the reasons which he himself
has given. I am satisfied that a so-called 'indecent intention' has never formed an
ingredient of the offence, and that it would be wrong now to introduce any such
requirement. It must however follow, in my opinion, that the evidence of the
appellant's statement to the police about his motive was inadmissible in evidence
and, since its admission was highly prejudicial to the appellant, the appeal should
be allowed and the conviction quashed. I understand, however, that the remainder
of your Lordships have taken a different view, considering that evidence of a secret
'indecent intention' on the part of the defendant was in the present case
admissible in evidence, and that the appeal should be dismissed. In these
circumstances, I propose to set out briefly the reasoning underlying my own
conclusion.
The question certified for consideration by your Lordships' House is as follows:

'Whether it is correct that on a charge of indecent assault the prosecution must

prove:--(a) That the accused intentionally assaulted the victim and (b) that he was
aware of the indecent circumstances of what he did, or was reckless as to their
existence but that it is not necessary for the prosecution to prove in addition that
the accused had an indecent purpose or intention.'

It is the latter part of the question which raises the central issue in the present
case.
I turn then to the statute itself. The relevant statutory provision is now contained
in s 14 of the Sexual Offences Act 1956, which (so far as relevant) provides as
follows: '(1) It is an offence . . . for a person to make an indecent assault on a
woman.' This provision originated in s 52 of the Offences against the Person Act
1861, which provided:

'Whosoever shall be convicted of any indecent Assault upon any Female . . . shall
be liable . . . to be imprisoned . . .'

There is no reason to suppose that, in re-enacting this provision in the 1956 Act
(which was a consolidating Act), Parliament intended its effect to be any different
from what it had always intended it to be.
Now, if one looks just at the words of the statute, the ingredients are simply that
there shall have been an assault and that the assault shall have been indecent. I
take first the requirement that there shall have been an assault. In English law, an
assault is generally distinguished from a battery. In the case of an assault, the
relevant act is an act which causes another person to apprehend the infliction of
immediate, unlawful, force on his person in the case of a battery, it is the actual
infliction of unlawful force on another person. The mental element in both an
assault and a battery may consist either of intention or recklessness (see Smith
and Hogan Criminal Law (5th edn, 1983) pp 354, 356 and cases there cited). In
either case, it is a defence that the defendant acted with consent or with lawful
excuse.
Turning next to indecent assault, no distinction is drawn in the statute between
an assault and a battery. However, the expression 'indecent assault' must have
been intended to embrace both an assault and a battery though, paradoxically, an
indecent assault will normally take the form of a battery. Furthermore, in practice
recklessness must very rarely be relevant in cases of indecent assault, except in
cases where the defendant was reckless whether the victim was consenting or not,
as to which see R v Kimber [1983] 3 All ER 316, [1983] 1 WLR 1118. The mental
element must in fact, I imagine, nearly always be simply intention and it is not
surprising, therefore, to find Lord Lane CJ in a case of indecent assault (Faulkner v
Talbot [1981] 3 All ER 468 at 471, [1982] 1 WLR 1528 at 1534) describing an
assault as 'any intentional touching of another person without the consent of that
person and without lawful excuse' (my emphasis). Even so, it is to be observed
that Lord Lane CJ's statement of the law embraces both the guilty act and the
mental element of an assault in the present context.
What then is an indecent assault? The answer is that it is an assault (in the sense
I have described) which is indecent. This appears always to have been the law. So
in a case which attracted much attention in its time, R v Baker (1875) Times, 31
July, Brett J directed the jury as follows:

'The defendant is charged, first, with an assault, and if without any ill-feeling in his
mind he laid his hand upon her without her consent it is an assault. But he is
charged next under a statute with an indecent assault, and as to that I have no
right to tell you what particular act according to law will or will not amount to an
indecent assault. The only definition I can give you is that, if a man assaults a
woman in such a way that ordinary right-minded men would say it was indecent,
then it is an indecent assault. I cannot lay down the law as to what is or is not
''indecent'' beyond saying it is what all right-minded men, men of sound and
wholesome feelings, would say was indecent.'

It has, however, been established that, in considering whether or not an assault is

indecent, it is appropriate to have regard not only to the nature of the assault
itself, but also to the circumstances in which the assault took place. This was laid
down in Beal v Kelley[1951] 2 All ER 763 and it led Lord Goddard CJ to describe an
indecent assault as an assault which takes place in 'circumstances of indecency'
(at 764), a phrase which has, I understand, been regularly used in directing juries
ever since. The expression could perhaps be said to be more appropriate in cases
where the indecency arises from some circumstances apart from the nature of the
assault itself and I myself might have preferred to put the question as being
whether the assault, taking into account the surrounding circumstances, would be
regarded by ordinary right-thinking people as an indecent assault, the question of
indecency being a matter for the jury. But I do not regard this criticism as
important, since Lord Goddard CJ's expression appears to have created no difficulty
in the past.
Does an indecent assault require any mental element different from a common
assault? There are, I consider, two matters to be borne in mind. First, the
requisite intention on the part of the defendant to commit the relevant act
involves, in the case of an indecent assault, that the defendant should have
intended to commit any part of that act which rendered the assault
indecent. Second, especially since, in considering whether an assault is indecent,
it may be appropriate to have regard to the surrounding circumstances, it is
necessary that the defendant should have been aware of the existence of any
circumstances which are relied on as rendering the assault indecent. These
requirements have, of course, the effect of eliminating the possibility of a person
being convicted of an indecent assault in any case of accident or mistake they
provide, therefore, the simple answer to the case, posed in argument, of a man
forcing his way out of a crowded underground train and accidentally tearing off a
woman's clothing, which nobody would regard as an indecent assault. I am bound
however to say that both requirements are likely to be of theoretical rather than
practical importance and I have omitted any reference to recklessness because,
although theoretically relevant, it is difficult to imagine circumstances where it
would be relevant in practice (apart from cases such as R v Kimber).
It is, in my opinion, as simple as that. And, as I understand the position,
especially following the decision of the Divisional Court in Beal v Kelley, the law in
this form has regularly been applied and acted on, no doubt in innumerable cases,
without any difficulty at all.
However, in the present case the judge added a further mental element, viz that
the defendant should have had an 'indecent intention'. First of all, what did he
mean by this? The expression is capable of bearing a number of different
meanings. It may, for example, mean that the defendant intended to do an act
which was in fact indecent or it may mean that he intended to do an act for an
indecent purpose of any kind or it may mean that he acted with a particular
indecent purpose, viz with the motive of obtaining sexual gratification from his
act. I infer, from the fact that the judge thought it right to admit the evidence of
the appellant's statement to the police in the present case, that he intended to
attribute the last of those three meanings to the expression 'indecent intention',
though he did not explain this to the jury.
Why did he add this extra requirement? He certainly did not do so on the basis of
any previous authority for it seems that the only previous reported case in which
this direction has been given was the decision of an assistant recorder in the
briefly reported v Pratt [1984] Crim LR 41. Your Lordships were, however, told
that, during an adjournment in the course of the trial, the judge was provided with
reading matter in the form not only of copies of the relevant authorities, but also of
academic writings, including Professor Glanville Williams's Textbook of Criminal
Law (2nd edn, 1983). It is almost certain, therefore, that the judge was persuaded
to add the element of 'indecent intention' to his direction by the work of the
learned professor.
A requirement that the defendant must have acted from a sexual motive, which I
understand to be from the motive of obtaining sexual gratification from his act,
would, as Professor Glanville Williams recognises, exclude from indecent assault
cases where a man undressed a woman in public but did so not from the motive of
obtaining sexual gratification, but because he was a misogynist, or because he
wanted to cause the woman embarrassment, or out of sheer mischief. I cannot
think that this is right. In its judgment, the Court of Appeal referred to the case of
an examination of a 15-year-old girl by a midwife or doctor for medical purposes,
the point being that, by virtue of s 14(2) of the 1956 Act, a girl under the age of 16
cannot in law give any consent which would prevent an act being an assault for the
purposes of the section. Professor Glanville Williams considers that such a case
would not amount to an indecent assault because the doctor or midwife acted from
a non-sexual motive. The Court of Appeal expressed its disagreement with this
view, in the following passage from its judgment ([1987] 1 All ER 120 at 125,
[1987] QB 156 at 164):

'In our judgment it is not necessary to infer a requirement of proof of a sexual

purpose, or of an indecent intention, for proof that a person has made an indecent
assault, in order to protect from the theoretical risk of conviction for indecent
assault the midwife or doctor who intimately examines a girl under the age of 16
without effective consent. If consent has been given by the parent or guardian
there is, of course, no assault. If no such consent has been given, an intimate
examination carried out for genuine medical purposes is, in our view, not
indecent. Neither the girl examined, nor the right thinking members of society,
would regard such an examination as an affront to the modesty of the girl or
conduct which contravened normal standards of decent behaviour. So long as the
examination is carried out for genuine medical purposes in a manner and in
circumstances consistent with those purposes, then in our view the fact that the
doctor or midwife happens to have some secret indecent motive, or happens to
obtain some sexual gratification known only to himself from carrying out his
legitimate work, cannot in our view render the circumstances indecent.'

I entirely agree. As I see it, it is the fact that the assault is objectively indecent
which constitutes the gravamen of the offence, which is to be found in the affront
to modesty. This conclusion is consistent with the decision of Streatfeild J in R v
George [1956] Crim LR 52. Furthermore, I accept the submission of both
counsel that to introduce the requirement of indecent motive would be
undesirable, in that it would create complications in what is at present treated as a
relatively simple and straightforward offence. One has only to imagine a jury
grappling with a case where a man has been charged with what anybody would
call an indecent assault on a woman, and then claims (following the proposed
change in the law) that he is not guilty on the ground that he committed the
assault only because he is a misogynist. If there is any offence which should, so
far as possible, be kept simple, this is it and I strongly suspect that most of the
examples used in argument are thoroughly unreal, and that jurors and magistrates
are perfectly capable of recognising indecency when they are faced with it, and
indeed that any gloss on the word 'indecent' is more likely to do harm than good. I
am, for example, content to leave it to juries, and to magistrates, to draw a
sensible distinction between courtship and indecency and I strongly suspect that
any attempt to draw some hard and fast line between the two would more than
likely land up in disaster.
I understand, however, that what has found favour with the remainder of your
Lordships is neither the law as it has hitherto been understood, viz an indecent
assault is an assault committed in circumstances of indecency, nor the law as
proposed by Professor Glanville Williams and adopted by the judge, viz it is a
necessary ingredient of indecent assault that the defendant should have acted
with an 'indecent intention', i e with the motive of obtaining sexual gratification
from his act. The proposition, as I understand it, is that, where the act is
'inherently indecent', it may constitute an indecent assault even though the
defendant had no intention to obtain sexual gratification from his act, but, where it
is only capable of constituting an indecent assault, then the question whether it is
so or not may be resolved by ascertaining whether or not the defendant has such
an intention. I am, with all respect, unable to accept this approach.
It seems to me that either the intent to obtain sexual gratification should be an
ingredient of the offence or it should not. If (contrary to my opinion) it is, then it
must be proved in every case, and without it the defendant must be acquitted,
however objectively indecent the assault may be, with the effect that a man who
forcibly undresses a woman in public because he is a misogynist, or because he
wants to embarrass her, or because he is acting out of sheer mischief, would not
be guilty of an indecent assault. If, however, it is not an ingredient of the offence,
then in my opinion it must be generally irrelevant it cannot, for example, be
adduced in evidence by the prosecution to prove that an assault which was not
objectively indecent was in fact indecent, or to prove that an assault which might
or might not be thought to be objectively indecent was in fact indecent.
Of course, I am not saying that evidence of the motive of the defendant is never
admissible. As the Court of Appeal pointed out, it may indeed be admissible in
certain cases, where the defendant is seeking to say that what prima facie may
appear to be indecent assault was not in fact so, because the circumstances were
not in fact circumstances of indecency. One example of such a case is that given
by the Court of Appeal of a medical examination of a girl under the age of 16
without effective consent, to which I have already referred. Another example may
be found in R v Pratt [1984] Crim LR 41. I have only available to me the brief
report in the Criminal Law Review, where the facts of the case are summarised as
follows:
'The defendant was charged on an indictment containing two counts of indecent
assault. Two 13-year-old boys were night fishing at a lonely quay on the
coast. They were each dressed in several layers of clothing. Shortly after midnight
the defendant appeared wearing a stocking mask. The defendant threatened the
boys by pretending he had a gun. By threatening the boys the defendant forced
them to undress almost completely so as to reveal their private parts. As each boy
undressed the other was forced to shine a torch on him. The defendant did not
touch either boy and stood five yards away. The defendant gave evidence that his
sole motive in causing the boys to reveal their private parts was to search for
cannabis he thought the boys had taken from him the previous afternoon.'

In that case, it was counsel for the prosecution who was seeking to exclude
evidence of the defendant's motive as irrelevant, on the ground that the jury were
not required to consider any 'intention as to indecency'. Counsel for the defendant
submitted that it was admissible because an indecent motive or intention was a
necessary element in the offence. The assistant recorder held that it was
necessary for the prosecution to prove an indecent intention. In my opinion,
neither submission of counsel was correct. An indecent intention is not an
ingredient of the offence but evidence of the defendant's intention may
nevertheless be admissible as probative that the circumstances of the assault were
not in fact indecent, and (on the brief report available to me) it seems to me that
the assistant recorder was right to rule the evidence admissible, but that (with all
respect) he did so for the wrong reason.
In Smith and Hogan Criminal Law (5th edn, 1983) p 424 it is stated:

'While an indecent motive cannot convert an objectively decent act into an

indecent assault, a decent motive may justify what would otherwise be an indecent
act.'

With that proposition, I respectfully find myself to be broadly in agreement, though

I would myself (unaffected by the pressures on space in a textbook) express it
rather more fully as follows. First, if the prosecution cannot establish that an
assault is objectively indecent, they are not allowed to fortify their case by calling
evidence of a secret indecent intention on the part of the defendant. Second, if an
assault is prima facie indecent, the defendant may seek to show that the
circumstances of the assault were not in fact indecent, and for that purpose
evidence of his intention would be relevant and admissible.
It was on the basis that evidence of the appellant's secret intention was probative
of the true nature of the circumstances accompanying the assault that counsel for
the Crown submitted that it was admissible in the present case. With this
submission, I am unable to agree. For on this basis the prosecution would be
seeking, in my opinion illegitimately, to fortify what is assumed to be a doubtful
case of an objectively indecent assault by calling evidence of a secret indecent
intention on the part of the appellant. In truth, the evidence was admitted on the
erroneous basis that an indecent intention is an ingredient of the offence, which, in
my opinion, it is not and the conviction cannot, in my opinion, be salvaged by
defending the admissibility of the evidence on some other ground.
I would only add that, on the approach which I favour, it is only in very rare cases
that evidence of the defendant's intention will be of any relevance. In the vast
majority of cases, as in the present, the jury have simply to consider the evidence
of what happened, and ask themselves the common sense questions: did the
defendant assault the complainant? and if so, were the circumstances of the
assault such as to render it indecent? If a man gives a young woman a good
spanking on the backside, the jury will (unless the defendant's case is that there
were circumstances by virtue of which the assault was not indecent) have to
consider whether the assault was such an affront to her modesty as to amount to
an indecent assault. I myself do not think that, in most cases, they would have
much difficulty in reaching a conclusion but, if in the end they are in doubt, they
must of course acquit. Likewise, as it seems to me, on the law as it has hitherto
been understood, juries and magistrates can, if they think it right to do so, having
regard to all the circumstances, hold that an undergraduate 'debagging' is no more
than a harmless prank, whereas stripping a woman naked in public transcends any
such thing and so constitutes an indecent assault, without any inquiry into the
secret motive of the assailant.
In my opinion, evidence of the appellant's secret motive was, in the present case,
inadmissible. I would accordingly allow the appeal and quash the conviction.

DISPOSITION:
Appeal dismissed.

SOLICITORS:
Lovell Son & Pitfield, agents for Owen H Roberts, Gwynned (for the appellant)
Prosecution Service.