Justice Gerard Hogan said the evidence in FN’s case did not support a conviction for sexual assault and would substitute a conviction for assault. His judgment, delivered on 23 May 2022, forms part of a Supreme Court appeal concerning an incident between two boys in a rural area.
FN was 14 at the time of the incident in April 2019. A jury in the Central Criminal Court convicted him of sexually assaulting Y, who was six. The prosecution alleged that FN pushed Y down, pulled down his trousers and pants, and slapped his bare bottom nine times. The boys had been playing with other children before the incident; Y said the others were not present when he was slapped.
The jury disagreed on a separate rape charge concerning Y’s four-year-old brother, X. The Director of Public Prosecutions later entered a nolle prosequi on that charge. It was not directly at issue in the appeal.
At trial, the judge rejected applications to stop the case and to direct an acquittal. The jury was told that the prosecution did not have to prove a sexual purpose or sexual gratification. In sentencing FN, the trial judge said there was no evidence of a sexual motive and placed the offence at the lower end of the gravity scale. The judge applied the Probation of Offenders Act 1907, subject to supervision and no-contact conditions.
The Court of Appeal dismissed FN’s appeal in August 2021. The Supreme Court granted leave on whether the admitted facts disclosed sexual assault. In his judgment, Hogan J said the incident was inappropriate and amounted to assault under section 2 of the Non-Fatal Offences against the Person Act 1997. But he considered the circumstances ambiguous: they could be understood as non-sexual conduct following a childish altercation, so they did not establish an intention to commit sexual assault or give rise to an irresistible inference of that intention.
Hogan J would allow the appeal, set aside the sexual assault conviction and substitute a conviction for assault. The supplied judgment text contains Hogan J’s reasoning and proposed disposition; it does not set out the Supreme Court’s final order or the positions of the other judges.