The People (Director of Public Prosecutions) v F.N.

Where a 14 year-old boy pulls down the trousers and pants of a 6-year-old boy with whom he had been playing in a field in a rural area and then smacks him on the bare bottom some nine times when out of the sight of others does he thereby without more commit the offence of sexual assault? This is the difficult and troubling question presented by this appeal.

While both Woulfe J and myself recognise the force of the majority judgment of Charleton J, we nonetheless consider that in the particular circumstances of this case the applicant should simply have been convicted of the offence of assault contrary to s. 2 of the Non-Fatal Offences against the Person Act 1997 and not the offence of sexual assault. I propose to outline my reasons for this conclusion presently but first a short word by way of background is necessary to explain how the issue in this appeal arose.

On 22 nd December 2020, the appellant, FN, was convicted in the Central Criminal Court of the offence of sexual assault. FN had stood trial charged with two offences: (i) an allegation of rape contrary to s. 4 of the Criminal Law (Rape) Amendment Act 1990 (as amended) of a four-year old boy (�X�) in respect of which the jury disagreed, and (ii) a count of sexual assault in respect of a six year old boy (�Y�), in respect of which the jury returned a guilty verdict. Y is the older brother of X.

The rape charge consisted of the allegation that FN had inserted his finger in the anus of X. The jury disagreed on this charge and the Director of Public Prosecutions ultimately entered a nolle prosequi in respect of it. Save by way of general background to the present case, it has no direct relevance to the issue now before the Court.

While the precise facts of this case are somewhat sketchy - caused in part by the (hugely understandable) difficulties involved in the giving of evidence by young children - it seems clear that the children were playing together in the open fields near their respective houses. They were accompanied by three other children, one of whom was a sister of FN and two who were cousins of FN. While the precise ages of these other children does not seem to have been formally established, it would appear that they were slightly younger than FN.