In the recent case of Tait v HM Advocate  HCJAC 58, the Appeal Court was asked to consider whether the appellant’s conviction under Section 20 of the 2009 Act ought to be quashed. The interesting aspect of this appeal was the approach of the Court to the interpretation of Section 20 of the Act, an approach which must also apply to Sexual Assault under Section 3. It’s time to close the book on what you thought you knew about what we formerly called “indecent assault.”
The appellant had originally been charged with a single incident said to consist of a sexual assault by penetration of a young child (Section 19) and a sexual assault on a young child (Section 20). The penetrative aspect of the libel could not be corroborated. As there was sufficient evidence of sexual touching, the jury were directed that they could convict of the sexual assault under Section 20, but not the offence under Section 19. However, the lower court treated the allegation of penetration which which was not removed from the libel as narrative in relation to the Section 20 offence. The Sheriff directed that if the jury were satisfied that a sexual assault had occurred, the act of penetration could be treated as an incidental fact which did not require to be proved with corroborated evidence. The jury convicted of the Section 20 offence, including the allegation of penetration.
Section 20 of the 2009 Act
Section 20 is in the following terms: –
20 Sexual assault on a young child
(1) If a person (“A”) does any of the things mentioned in subsection (2) (“B” being in each case a child who has not attained the age of 13 years), then A commits an offence, to be known as the offence of sexual assault on a young child.
(2) Those things are, that A—
(a) penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,
(b) intentionally or recklessly touches B sexually,
(c) engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,
(d) intentionally or recklessly ejaculates semen onto B,
(e) intentionally or recklessly emits urine or saliva onto B sexually.
(3) Without prejudice to the generality of paragraph (a) of subsection (2), the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A’s penis.
Section 20, therefore, requires the Crown to prove (i) that the complainer was aged under 13, (ii) that one or more of the things listed in paragraphs (a) to (e) of subsection (2) occurred, and (iii) that the accused was the perpetrator. The Appeal Court agreed that the matters listed in paragraphs (a) to (e) are neither incidental facts nor for the purposes of narrative. Rather, this is the specifically defined conduct which constitutes an offence under Section 20. The proof of an accused person having done one of the things listed in paragraphs (a) to (e) of subsection (2) is essential to the charge – facta probanda which require corroboration.
Further support for this view can also be found in the Scottish Law Commission’s Report on Rape and Other Sexual Offences (December 2007) paras 6.19-23.
“One of the problems of classifying the sexual element in indecent assaults as procedural only is that this so-called aggravating fact is at the core of the offence. Indeed, that is the basis for our recommendation on the offence of sexual assault. If our recommendations on rape and sexual assault were to be implemented, then in our view corroboration would be required to prove the act of penetration, touching etc specified in the charge against the accused.”
It is important to note that although the offences contained in Sections 3 and 20 are described as “Assaults”, both are entirely new offences, distinct from the common law. Libelled as an indecent assault (or as properly described, an assault aggravated by indecency) at common law, the digital penetration alleged would have been treated as narrative. Although corroboration of an assault would have been essential, conviction at common law would not have been required in to the allegation of digital penetration.
Why then was the charge not libelled at common law? The commentary to the SCCR version of the case report¹ states: –
“Sched.3 to the Act sets out a plethora of alternative verdicts, and if the sexual nature of the incident had not been corroborated the appellant could have been convicted of assault at common law, or even, perhaps, of an indecent assault at common law, ie of a common law assault aggravated by indecency.” (Emphasis added.)
Respectfully, I suggest that the learned Editor is wrong to submit that indecent assault is a competent alternative in a case where the sexual conduct is not corroborated. Section 52(b) of the 2009 Act states that where provisions of the Act regulate any conduct, they replace any rule of law regulating that conduct. Therefore, for example, where sexual touching of an adult has taken place without consent, the common law no longer applies.
In the present appeal, had the argument that there was no corroboration of any sexual assault as defined under Section 20 been successful, it would not have been competent, in my view, to substitute a verdict of common law assault aggravated by indecency.²
The answer to the original question is therefore relatively simple; the charge was not libelled as a common law assault aggravated by indecency because the 2009 Act now regulates that behaviour. One consequence of this enactment is perhaps a little more difficult to understand; that the Crown’s task in relation to the allegation of penetration was much more onerous than had been the case under the common law.
¹ 2015 SCCR 308
² Although a verdict of “non-sexual” common law assault would have been competent, since that conduct is not regulated by the 2009 Act.