The Court of Appeal has allowed the Director of Public Prosecutions’ appeal against a trial judge’s direction acquitting F.B. of a rape charge, finding the direction was wrong in law and the evidence could have been considered by a jury.
The appeal concerned a charge under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. The complainant was six at the time of the alleged incident and the respondent was 16. The charge alleged that he sexually assaulted her by putting his penis in her mouth. The address stated in the indictment is redacted.
At trial, the complainant testified that she was alone with the respondent in a bedroom at her grandmother’s house in Dublin. She said he asked her to put her mouth on his penis and she did so, although she did not want to. She also described him touching her leg and inserting his fingers into her vagina, and said he told her to keep the incident secret. These were allegations in her testimony, not findings of guilt.
At the close of the prosecution case, the trial judge directed the jury to find the respondent not guilty on the rape count. He considered that the evidence did not establish an assault because the complainant had acted on the respondent’s invitation and the evidence did not show force or an expressed objection. The respondent was acquitted on the other counts; the prosecution had entered a nolle prosequi on a remaining sexual assault count.
The DPP appealed under section 23 of the Criminal Procedure Act 2010, arguing that the trial judge had applied the law incorrectly. The Court of Appeal said the English decision in Fairclough v Whipp, which had treated an accepted invitation to touch as no assault, was not binding in Ireland and did not represent Irish law today.
The court said a mere invitation, without something more, would not itself amount to an assault. But it held that the circumstances surrounding an invitation to a child could support an inference of compulsion. In this case, it said a jury could consider the age difference, the family relationship, the alleged conduct before the oral contact, and the alleged instruction to keep it secret. It also said the evidence could allow a jury to consider whether the contact involved force or impact within the statutory definition of assault.
The appeal court did not determine whether the respondent was guilty. It held that the jury should have been allowed to consider the charge and that it might reasonably have been satisfied beyond reasonable doubt. The judgment allowed the appeal and said the court would hear counsel about any consequential orders. It did not itself direct a retrial.