The Supreme Court has upheld the detention of a man sentenced to three-and-a-half years in prison for indecent assault, rejecting his argument that the offence had ceased to exist before his 1998 conviction.
S.O.C. was convicted on 1 April 1998 after a two-day trial of indecently assaulting L.M., a girl under 15, on an unknown date in 1989. The charge described the offence as indecent assault contrary to common law, with punishment provided for under the Criminal Law (Rape) Act 1981.
He later challenged his detention under Article 40.4 of the Constitution. An earlier challenge failed, but the Supreme Court had left him free to bring fresh proceedings on the legal point subsequently considered in this case.
The first issue was whether the charge had been wrongly described because legislation taking effect in January 1991 provided that indecent assault on a male or female person would thereafter be known as sexual assault.
Mr Justice Hardiman held that the change affected only the name of the offence, not its legal nature or ingredients. An offence committed before the change could therefore still properly be described as indecent assault.
The second issue was whether the common-law offence had been abolished by the Non-Fatal Offences against the Person Act 1997, which abolished common-law assault and battery and several related offences.
The Supreme Court rejected that argument too. It held that indecent or sexual assault was a distinct common-law offence which had developed through a separate line of legislation dealing specifically with sexual offences. The 1997 Act dealt with non-fatal offences against the person and created no replacement sexual offence, indicating that it was not intended to abolish indecent assault.
Because the court found that the offence remained in existence, it did not need to decide S.O.C.'s further challenge concerning the Interpretation (Amendment) Act 1997.
The appeal was dismissed and the High Court order was affirmed.