پروتکل ACT برای مدیریت وزن

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پروتکل ACT برای مدیریت وزن

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Sexual Offences Act 2003/ Vulnerable witnesses,S41 Youth Justice and Criminal

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  فهرست مطالب

  Sexual Offences Act 2003/ Vulnerable witnesses/ S41 Youth Justice and Criminal Evidence Act 1999

  Update to September 2005

   by

                                                           Peter Rook QC[1]

  INTRODUCTION

        This lecture is designed to deal with  significant developments in relation to the (i) Sexual Offences Act 2003 Act since implementation on 1st May 2004 and (ii) the law governing the evidence of vulnerable witnesses ( principally sections  of the Youth Justice and Criminal Evidence Act 1999.) I will also deal briefly with problem areas in respect of the SOA 2003 which Robert Ward and I identified when we delivered a course of lectures to the judges.

       I also hope to have time to cover developments in respect of the restrictions on the admissibility of complainant previous sexual history evidence in the aftermath of R v A (no 2.)

  SEXUAL OFFENCES ACT 2003

         There has only been one case dealing with key definitions under the new Act, although there have been several important sentencing appeals.

  A.          KEY TERMS

  “TOUCHING”

  1. “Touching” is an important element of a number of offences in the 2003 Act, including sexual assault (s.3). Section 79(8) provides that “touching” includes touching with any part of the body, with anything else and through anything, and in particular includes touching amounting to penetration.  In v. H.[2] the Court of Appeal held that the definition in s.79(8) is not exhaustive and that touching the clothing that a person is wearing is “touching” for the purposes of s.3.  In that case, D had grabbed the complainant’s tracksuit bottoms by the fabric in the area of her right-side pocket and attempted to pull her towards him.  The Court agreed with the trial judge that touching the tracksuit bottoms amounted to “touching” the complainant for the purposes of s.3.

  “SEXUAL”

  Sexual assault and the other offences of “touching” in the 2003 Act are committed only if the touching is “sexual”.  Section 78 of the Act provides:

  “For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that-

  • whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or
  • because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”
  1. The correct approach to the application of s.78(b), where the activity “may” be sexual, was set out by the Court in v. H. The Court said that the provision contains two requirements: first, that the touching, because of its nature, might be sexual and secondly, that the touching, because of its circumstances or the purpose of any person in relation to it, was sexual.  These are, it said, two distinct questions which must be considered separately.  The nature of the touching refers to the actual touching that took place and, therefore, in considering whether the touching, because of its nature, might be sexual, the jury is not concerned with the circumstances before or after the touching or the purpose of the defendant in relation to it.  In the instant case, there was evidence that before pulling the complainant’s tracksuit bottoms, D had said to her “Do you fancy a shag?”  At trial, D submitted that the touching that had occurred could not be regarded by a reasonable person as “sexual” within the meaning of the Act.  The judge took the view was that there were clearly circumstances, including the words allegedly spoken by D beforehand, which could make what had occurred sexual.  The Court of Appeal said that the judge had not adopted the required two-stage approach to s.78(b) but had looked at the matter as a whole.  The problem with that was that in borderline cases a person’s intention could make a touching sexual, even though the nature of the touching could not be sexual.  That, said the Court, is not an appropriate approach, even though in the great majority of cases the result will be the same.  Their Lordships were nonetheless satisfied, looking at the case as a whole, that the conviction was not unsafe.
  2. The Court in v. H. disapproved the decision in George,[3] an indecent assault case in which it was held that a shoe fetishist’s act in removing a woman’s shoe was not capable of being indecent. George was expressly approved in Court,[4] where the House of Lords set out the meaning of “indecency” in the offence of indecent assault, and (2) the reasoning in Court is essentially reproduced in the definition of “sexual” in s.78. Nevertheless, it now appears that shoe fetishists should not assume that they cannot be prosecuted for sexual assault by touching another’s shoes, but must be prepared to take their chances on the jury’s view of whether a reasonable person would consider their actions (without reference to their circumstances or purpose) to be sexual.
  1. THE OPERATION OF THE SECTION 75 EVIDENTIAL PRESUMPTIONS

  Non-consensual sexual offences   Ss1-4 Sexual Offence Act 2004

  1. These are not expected to arise very often as in many cases the defendant will be in a position to point to sufficient evidence to raise an issue as to whether the complainant consented and/or the whether the defendant reasonably believed that the complainant was consenting. However, in practical terms, the existence of section 75 may well mean that the defendant is obliged to enter the witness box to provide an explanation, if sufficient evidence has not been established in cross-examination.
  2. Stage 1

  The judge must be satisfied that the prosecution has proved that:

  the defendant did the relevant act (as set out in section 77) ( for example in rape, the defendant intentionally penetrated, with his penis, the vagina, anus or mouth of the complainant.) (NB inchoate offences are not inclu

  
  

  [1] I am grateful to Robert Ward CBE, co-author of “Rook and Ward on sexual offences : law and practice” , Sweet and Maxwell  2004, who wrote part of this lecture.

  [2] R v H (2005) 2 CAR 149

  [3] [1956] Crim.L.R. 52.

  [4] [1989] A.C. 28, per Lord Ackner, with whom Lords Keith, Fraser and Griffiths agreed.