Neutral Citation Number: [2003] EWCA Crim 2405
Case No: 2002/3307/Z4
IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand London, WC2

Date: Friday, 18 July 2003

B E F O R E:

LORD JUSTICE CLARKE

MR JUSTICE ASTILL

THE COMMON SERJEANT
(HIS HONOUR JUDGE PETER BEAUMONT QC)
(Sitting as a Judge of the CACD)

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R E G I N A

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DAVID ARTHUR PRICE

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MR J BARNARD appeared on behalf of the APPELLANT
MR S CONNOLLY appeared on behalf of the CROWN
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J U D G M E N T (As Approved by the Court)
1.	LORD JUSTICE CLARKE: On 21st May 2002 in the Crown Court at Kingston upon Thames before His Honour Judge McGregor-Johnson and a jury, the appellant was convicted of indecent assault and on 26th July 2002 he was sentenced to a community rehabilitation order for three years with a condition to attend an accredited sex offenders programme as directed by his supervising officer. He appeals against conviction by leave of the single judge, Langley J.

2.	The complainant, Miss C, was the sales manager of an apartment block. On 4th April 2001 the appellant asked to inspect the largest apartment. Miss C was alone and felt uneasy and said he could go up on his own. He went through the door leading to the staircase but she believed he did not go up because she could still see a shadow. He returned, saying it was what he was looking for and had £500,000 to spend. He gave the name of Smith. He said he had visited previously and had been told that if he came back Miss C would take her shoes off. He said that if he could walk around the apartment carrying her boots it would help him to decide. He then knelt in front of her, causing her to become afraid regarding his intentions. He began to stroke her legs just below the knee over her trousers with both hands before stroking her boots, which he repeatedly asked her to remove. She eventually agreed that she would remove them the next day if he returned. She described his manner as "weird" and "child-like". He left and she locked the doors and called the police. The following day on his return she locked the doors and again called the police. She accepted he only seemed interested in her shoes.

3.	The appellant admitted to the police that he had used the name of Smith the previous day and said that he had come from the bank where he was arranging a loan of £100,000. Following his arrest, but before he was interviewed, he was asked if he suffered from any mental problems, to which he replied "Only the shoe fetish." He was asked about the shoe fetish in interview and said it made him happy to touch women's shoes, it reminded him of his sister. He denied obtaining any sexual satisfaction. He had gone to look at the apartments out of curiosity and noticed her boots on his return and asked if he could touch them. She moved around causing him to believe she was permitting him to touch. He crouched down and touched the boots and denied touching her legs below the knee. He did not remember any conversation about removing the boots. He had returned the next day to apologise in case he had frightened her. The appellant gave evidence at the trial, substantially in accordance with what he had said in the interview.

4.	Four grounds of appeal are advanced:

(1)	The judge misdirected the jury as to indecency.

(2)	The judge failed to direct the jury as to the possibility that the appellant had touched the complainant by mistake. (3) The judge misdirected the jury as to the relevance of the complainant's state of mind.

(4) The judge wrongly admitted a reference to the appellant's "shoe fetish". We take these in turn.
(1)	Indecency.

5.	Mr Barnard submits on behalf of the appellant that the mere removal or attempted removal of a girl's shoe cannot amount to an indecent assault. He relies on R v George [1956] Crim.L.R 52, as confirmed in the House of Lords in R v Court [1989] AC 28 at 42D to F, per Lord Ackner. We assume for the purposes of this appeal that that submission is in principle correct. Mr Barnard further submits that any removal or attempted removal of a girl's shoes must inevitably involve touching the lower leg and that the facts of this case cannot sensibly be distinguished from R v George. Mr Connolly submits that that is not so.

6.	We accept that the removal of a shoe will inevitably involve some touching of the lower leg but we are unable to accept that on the complainant's evidence that reflects what occurred in this case. In the course of his summing-up the judge described the complainant's evidence in this way at page 8:

"She said that the defendant, kneeling down, began to stroke her legs just below her knee and you will remember that she demonstrated to you how he did it with two hands, stroking over her trousers and then moving his hand down to touch one of her boots. The stroking was for a matter of seconds and then he stroked the boots. She was, as I say, sitting sideways at that stage, he was leaning in front of her."

7.	In our judgment that is not a description of the appellant attempting to remove the complainant's boots and incidentally touching her leg. It is a description of him stroking her legs just below the knee, as apparently demonstrated to the jury, even though we recognise that the stroking lasted only a few seconds. In our view that evidence, if accepted, was capable of amounting to an indecent assault. The judge ultimately made it clear to the jury at page 14 of the summing-up that "If it were simply a question of touching the boot then that would not be an indecent assault on its own." We are unable to accept ground 1 of the appeal.

(2)	Mistaken touching.

8.	Mr Barnard submits that the judge failed to direct the jury that if the appellant touched the complainant's lower leg by mistake thinking it was her boot, which may have happened because it was not possible to tell the height of the boot under her trousers, he was not guilty of indecent assault. Mr Barnard does not suggest that such a mistake would afford any defence to the assault element of the count, but he submits that it affords a defence to the "indecent" nature of the assault.

9.	The judge summarised the ingredients of what is indecent in this context at page 6 in this way:

"To try to summarise that, you have to be sure either that this touching was such that, irrespective of motive, it was indecent in the way that I have described. Or you have to be sure that it was such that it is capable of being indecent and was indecent given the defendant's intentions in touching her in the way that you find he did."

10.	The point that is put, if we have understood it correctly, is that the defendant's intentions have to be judged by what he thought the facts were and if he thought he was touching the boot, albeit outside the trousers, then such a touching cannot have been indecent, by parity of reasoning with the conclusion in relation to the boot and in essence he is not guilty because of the mistake.

11.	The problem with this submission is that it was not the way in which the case was debated at any stage during the trial. It is based, in part at least, upon the fact that in the course of his cross-examination Mr Connolly asked the appellant this question:

"Did you think that they were high boots up to the knee?"

He did not answer that question. His evidence was entirely to the effect that the only thing he had touched was her boot at the foot. Accordingly, there was no factual basis for the suggestion that he even might have thought that he was touching a high boot up to the knee or indeed that he thought that she had high boots. There was simply no evidence about that at all. We have already set out the nature of her evidence. In short, she said that the defendant stroked her legs just below the knee with two hands. The judge summed up his evidence at page 10 and that passage includes the following:

"He said that he then crouched down and touched her boots. You will remember that he demonstrated just putting his hand on the top of the boot, just the fingertips. He denies that he touched or stroked her leg below the knee".

12.	In our view there was simply no room for the jury to consider as a possibility that the defendant might have stroked the trousers of the complainant below the knee while thinking that what was underneath the trousers was a boot. In our view that is a possibility which was never raised throughout the whole of the course of the trial. In these circumstances there was no reason whatever for the judge to introduce any such consideration in the course of his summing-up and he is not to be criticised for not doing so. It is not a matter which he could possibly have been expected to do off his own bat, as it were. We are unable to accept this second ground of appeal.

(3)	Complainant's state of mind.

13.	 The third ground is that the judge misdirected the jury in relation to the evidence of the complainant's state of mind. He set this out in the passage immediately before his description of the defendant kneeling down and stroking her legs. The judge said this at page 7E:

"She said that he knelt in front of her. She described herself as frightened by what he was doing. You will remember, in cross-examination that she said she had no idea what he was going to do. She was afraid that he might rape her and push her into a deep cupboard that was apparently just behind where she was. Members of the jury, so far as her fears are concerned, which perhaps you can understand in the circumstances and indeed she is not criticised at all, in one way what she feared is neither here nor there, it is not suggested that the defendant did any of those things that she was afraid of. The only relevance of it is if it throws any light on the manner in which he was behaving, and that is for you to assess."

14.	It is fair to say that in that passage the judge told the jury that, save in one respect, her fears were neither here nor there and he stressed that it was not suggested that the defendant did any of the things that she feared. The question is whether the judge should have said that her state of mind was relevant if it throws any light on the manner in which he was behaving and that is for you to assess. We have reached the conclusion that he should not have included that sentence in the course of his summing-up.

15.	However, we have also reached the clear conclusion that that error did not affect the safety of the conviction, essentially for this reason. The judge made it quite clear that the first question they had to decide was whether they accepted her evidence that he began to stroke her legs, or whether they thought that his evidence that he might simply have touched the end of her toe was correct. Thus the judge summarised the questions for the jury at page 10G:

"There it is members of the jury, you are going to have to decide, how did he touch her? Was it just on the boots or was it also on the leg? Was that done deliberately? Was it done without her consent? Was it done without him believing that she was consenting and was it done in a way which you consider, on the test that I have given you, to be indecent? As I have already said those are the elements of the offence. The prosecution's job is to make you sure of those elements."

It is plain from the jury's verdict that they accepted her evidence that he stroked her legs just below the knee and that the jury formed the view that that was indecent on one or other of the two bases left to them by the Crown. We do not think that that sentence, which should not have been included, can have affected the safety of the conviction. That leaves the last point.

(4)	The Shoe Fetish.

16.	It is submitted that the judge should not have permitted the Crown to adduce evidence relating to what the appellant said about the shoe fetish. The facts are as already stated. Before the appellant was interviewed he referred to the shoe fetish in answer to the custody sergeant's question whether he had any medical problems. In the course of the interview he then said that it made him happy to touch women's shoes.

17.	We do not think that the custody sergeant is to be blamed for the question which he asked. The information was proffered voluntarily by the appellant. In those circumstances we can see no reason why it should not have been admitted by the trial judge. We do not think that it made the trial in any way unfair to the appellant. In all the circumstances we have reached the conclusion that the conviction is safe and that the appeal against conviction should be dismissed.