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Published online by Cambridge University Press: 02 January 2018
No statute defines indecency, yet this is the element that makes the difference between common assault (a summary offence, maximum six months) and indecent assault (maximum now ten years). In gross cases no question arises; the trouble is with the marginals. The courts solve them, as they solve so many problems on jury trial, by leaving the question of indecency pretty well at large to the jury. This long-established rule was reaffirmed by the lords in Court. Lord Ackner, with the concurrence on this point of all the other lords, said ‘The prosecution must prove & that the assault, or the assault and the circumstances accompanying it, are capable of being considered by right-minded persons as indecent’.
1. The offence was defined in the Sexual Offences Act 1985, s 3. For a critical discussion see G. R. Sullivan in [987] Crim LR 331.
2. [1989] AC 28.
3. See the report at pp 45-46.
4. At p 42B.
5. George [1956] Crim LR 52 (Lincoln Assizes), approved by Lord Ackner in [1989] AC 42D.
6. At p 45D.
7. At p 35F.
8. Beal v Kelly [1951] 2 All ER 763
9. At p 37B.
10. At p 89G.
11. At p 46B.
12. At p 36D.
13. Pratt [1984] Crim LR 41.
14. At p 53A.
15. At p 53E.
16. At p 44B. The majority lords in Court did not expressly consider this point. Lord Goff (dissenting on the main question) did (at p 51E), and considered that it would not be an indecent assault; yet he agreed that there would be an assault in the ‘Lady Godiva’ hypothetical. He did not suggest a way of reconciling these opinions.
17. Leeson (1968) 52 Cr App R 185. See also 16 JCr L 89; [1956] Crim LR 530; A B (1955) Cr 353 (Alta). In Thomas (1985) 81 CR App R 331 it seems to have been supposed that although a man who rubbed the edge of a girl's skirt was not for that reason alone guilty of an indecent assault, he might be so guilty if he accompanied the act by a request for a kiss. What would the court say about rubbing a girl's hand and requesting a kiss?
18. I am indebted to my colleague P. R. Glazebrook for driving me to this conclusion against my resistance.
19. The notion that a forcible kiss plus lascivious words or conduct is an indecent assault has been accepted in Canada, but rejected in New Zealand, South Africa and apparently Australia. The cases were reviewed by Mackesy in [1956] Crim LR 531-533.
20. Kallides (1976), referred to in [1977] 1 WLR at 1089.
21. Rolfe (1952) 36 Cr App R 4. Cp Beal v Kelley (1951) 35 Cr App R 128. Contrast the facts in DPP v Rogers [1953] 1 WLR 1017,37 Cr App R 137.
22. Cp the language of the Indecency with Children Act 1960, s 1 (1).
23. [1977] 1 WLR 1086, 3 All ER 476. There are mistaken dicta in the judgment as to the nature of an indecent assault. The case was not referred to in the lords' opinions in Court, and Lord Ackner's summary ([1988] AC at 41-44) seems to overlook it.
24. Protection of children Act 1978.
25. While the offence should in general remain summary, in order to prevent trivial cases going to the Crown Court, it should, in my opinion, be triable, in the alternative, as an either-way of offence after a previous conviction of any offence against the person, with a maximum punishment upon conviction in the Crown Court of one year, or perhaps 18 months. (Remember that 1 am not speaking of indecency with children.) It should be for the judge alone to decide the question of prior conviction, either after conviction of the present assault by a jury (or upon plea) or upon referral from magistrates (such magistrates not having been informed of the alleged prior conviction until after they had convicted of the assault then charged).