The defendant was a teacher at a boarding school for children under the age of 13. He was charged with 42 offences of sexual assault contrary to section 15(1) of the Sexual Offences Act 1956 or of gross indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960, relating to 18 complainants. The conduct on which the prosecution relied included directions given to pupils by the defendant to row naked, or to row in underpants with the pants pulled down to expose their buttocks, or to row in underpants on a rowing machine, or to strip to their underpants, sit astride him, and massage him; he also stood naked in front of a boy in an attempt to gauge his reaction, and he stripped naked so that he could massage a boy. Eight of the charges were withdrawn from the jury on the basis that there was no case to answer. In respect of the offences under the 1960 Act the judge directed the jury that verdicts of guilty depended on their being sure that the defendant committed the acts alleged, that he derived sexual satisfaction from the act identified, and that the acts were ones of gross indecency taking account of the context and the relevant circumstances. The defendant was convicted of 13 offences of sexual assault and 16 offences of gross indecency, with the jury unable to agree on five other counts. The defendant appealed against 11 of the convictions for gross indecency on the grounds that there was no case to answer because proof of gross indecency required some form of intercrural contact, that “gross indecency” was a term of art with a particular legal meaning, and that the judge’s directions to the jury were inadequate in that they amounted only to an invitation that they simply apply contemporary moral standards to the alleged acts and decide whether they were “indecent” and, if so, whether the level of indecency was “gross”.
On the appeal—
Held, appeal dismissed. It was settled law that gross indecency did not require actual physical contact between persons. The court would not attempt to define “gross indecency”. That term had an ordinary meaning which juries have been able to determine and apply without difficulty for many years. It had been settled that boundaries of the offence had been set which were sufficiently certain to have regulated the behaviour of persons subject to the criminal law and section 1 of the Indecency with Children Act 1960. Further, the defendant’s own evidence at trial had showed that he knew what were proper boundaries for his behaviour and he had merely denied acting in the grossly indecent way alleged by the complainants. The judge had been entitled to find that there was a case to answer on the counts left to the jury in relation to the conduct on which the prosecution relied. The judge’s directions to the jury were proper directions. Accordingly, the verdicts were safe (see paras 67, 80–85).
Edward Hetherington (assigned by the Registrar of Criminal Appeals) for the defendant.
Micahel Morley (instructed by Crown Prosecution Service, Appeals Unit) for the Crown.