The Supreme Court has affirmed the Court of Appeal’s order upholding the sexual assault conviction of a teenager who was 14 at the time of the offence. The court held that prosecutors did not have to prove he acted from sexual desire, provided they proved he intentionally assaulted the victim in objectively indecent circumstances.
The judgment, delivered by Mr Justice Peter Charleton on 23 May 2022, concerned an appeal by FN, identified in the judgment as a minor. A jury had found him guilty of sexually assaulting a six-year-old boy on 13 April 2019. The jury disagreed on a separate charge of rape involving the victim’s younger brother. The prosecution later discontinued that count because of concerns for witnesses; it was not decided by the Supreme Court.
The appeal focused on whether the prosecution had to prove not only an intentional assault in indecent circumstances but also a sexual motive. The Supreme Court said motive and intention are distinct. It held that sexual assault requires intentional, non-consensual touching in an indecent manner or circumstances, judged objectively by contemporary standards. The accused must intend the assault and the indecent manner or circumstances, but the prosecution need not prove a desire for sexual gratification.
The court said the jury had heard that, during playacting in a field near the family home, FN pulled down the victim’s trousers and underpants, pushed him to the ground and struck his bare buttocks about nine times. The judgment said the circumstances supported the jury’s guilty verdict. It described the act of stripping the child and striking him while he was on the ground as a sexual assault, regardless of whether the motivation was playacting or something else.
The Supreme Court also explained that simple assault may be available as a lesser included offence where the jury is not satisfied that the accused intended the indecent circumstances. It said a trial judge should leave a sexual assault charge to the jury only where the prosecution evidence could establish objectively indecent circumstances. The court concluded that this was not a case for a lesser offence and affirmed the Court of Appeal’s order. The judgment noted that the trial judge had dealt with the conviction through supervision orders, reflecting the accused’s youth and surrounding circumstances.