R v H [2005] EWCA Crim 732

Facts

• The case concerned a defendant, H, who pulled the victim's clothing.
• The Court of Appeal examined whether this conduct could be classified as sexual touching under Section 78 of the Sexual Offences Act 2003.
• The prosecution argued that, although the act was not explicitly sexual, other factors such as intent or circumstances could render it so.
• The jury was instructed to assess both the nature of the touch and the context in which it occurred.
• The Court referenced additional cases, such as R v George [2008] EWCA Crim 2723, which affirmed the importance of reviewing all evidence, including the aims of the defendant.

Issues

1. Whether touching can be deemed sexual even if it is not inherently so by its nature.
2. Whether the context or intent surrounding the touching may make it sexual under Section 78 of the Sexual Offences Act 2003.
3. What standard or viewpoint the jury should adopt in determining if the touching is sexual.

Decision

• The Court of Appeal set out a two-step analysis for determining if touching is sexual under Section 78.
• First, the jury should consider if the touching is sexual by its nature (e.g., contact with genitals, breasts, or buttocks).
• If the touching is not inherently sexual, the jury must then determine, from an objective viewpoint, whether, given all the circumstances, a typical person would consider it sexual.
• The Court found that, given the facts of the case (pulling clothing), the act was not clearly sexual by nature and required consideration of the context and intent.
• The decision emphasized that the evaluation should be neutral, evidence-driven, and guided by how a hypothetical typical person would perceive the conduct.

Legal Principles

• The proper test for defining 'sexual' touching under Section 78 of the Sexual Offences Act 2003 is a two-step, objective analysis:
  • (1) Is the touching sexual by its nature?
  • (2) If not, would a typical person, considering all circumstances, view it as sexual?
• The standard to be used is that of a "typical person," requiring an unbiased, evidence-based evaluation by the jury.
• The intent and circumstances of the act are relevant and must be objectively assessed, not based on the subjective views of participants.
• The burden is on the prosecution to establish that the touching was intended to be sexual, supported by statements, conduct, or context.

Conclusion

R v H [2005] EWCA Crim 732 established a clear, objective two-step method for determining whether touching is sexual under Section 78 of the Sexual Offences Act 2003, requiring a jury to consider both the nature of the act and all surrounding circumstances from the standpoint of a typical person. This approach has guided courts in subsequent sexual offences cases and ensures consistent, fair assessment of alleged sexual conduct.