IN THE COURT OF APPEAL
TURKS AND CAICOS ISLANDS CR-AP 4/2019
ANTHONY SKIPPINGS APPELLANT
Sir Elliott Mottley, President
The Hon. Mr. Justice Adderley, Justice of Appeal The Hon. Mr. Justice Hamel-Smith, Justice of Appeal
Noel Skippings for the Appellant Mickia Mills for the Respondent
Heard: 2nd September 2019
Delivered: 30th January 2020
Sir Elliott Mottley, P.
1. At the conclusion of the hearing of this appeal, we allowed the appeal, quashed the conviction and set aside the judgment and entered a verdict of not guilty. At that time we indicated that we would put into writing our reasons for so doing.
2. The appellant was convicted of one count of indecent assault of a minor aged between 13 and 18 years.
3. The prosecution’s case was that the appellant was at his home when the virtual complainant visited his home. On one occasion while the virtual complaint was seated in the living room, the appellant walked over to the complainant pulled down his underwear, put his penis into the hand of the complainant and told him to masturbate him.
4. A number of grounds of appeal were filed but the case turned on a discrete point – taking the prosecution’s case at its highest, did those facts amount to assault? In order for a person to be convicted of indecent assault he must first be guilty of an assault. Indecent assault is an assault occasioned by an act of indecency.
5. Section 48 of the Offences Against the Person Ordinance Cap. 3.08 states:
“Indecent assault on boy between the ages of thirteen and eighteen
 A person who indecently assaults any boy being of the age of thirteen and under the age of eighteen years, whether with or without his consent, commits an offence and is liable on conviction to imprisonment for ten years. (Inserted by Ord. 7 of 2009)”
6. As stated above the issue raised on these facts is whether taking the prosecution case at its higher whether these facts amounted to indecent assault.
7. This issue engaged the attention of the Court of Criminal Appeal in England in Fairclough v Whipp (1951) Crim App Rep 188. The respondent had himself in the
presence of a girl aged 9; he invited her to touch his exposed penis which she did. In giving the judgment, Lord Goddard, Lord Chief Justice said at p. 189:
“An assault can be committed without there being battery, for instance, by a threatening gesture or a threat to use violence made against a person, but I do not know of any authority that says that, where one person invites another person to touch him, that can amount to an assault. The question of consent or non- consent arises only if there is something which, without consent, would be an assault on the latter.
If that which was done to the child would have been an assault if done against her will, it would also be an assault if it was done with her consent and is of an indecent nature, because she cannot consent to an indecent assault. But before we come to question whether there was an indecent assault we must consider whether there was an assault and I cannot hold that an invitation to somebody to touch the invitor can amount to an assault on the invitee.”
8. In 2015 the commented with approval in Fairdough v Whipp in Regina v Christopher Dunn  EWCA Crim 724. In this case, the appellant was convicted on a number of counts including one that between 21 March 1999 and 20 March 2000, he indecently assaulted KB, a female person aged 15, namely by causing her to masturbate him. In her statement to the police, KP had said that she “would masturbate him on his exposed penis”. On appeal against count 3, the appellant took the point that count 3 did not allege facts which were capable of constituting an assault in law.
9. In allowing the appellant’s appeal, Laws LJ stated:
“ The appellant relied on the decision of the Divisional Court in Fairclough v Whipp 35 Cr. App R. 138 which has been followed many times. In that case the respondent exposed himself in the presence of a nine-year-old girl and invited her to touch his penis. It was held that an invitation to another person to touch the invitor cannot amount to an assault on the invitee.
 In short, Parliament proceeded in 1960 on the basis that Fairclough v Whipp was correct given, we repeat, that the appellant could have been properly prosecuted for the facts which gave rise to count 3 and given that in any event the law was moved on through the medium of the Sexual Offences Act 2003, there is nothing to justify our contradicting Parliament’s premise in 1960 and overturning what had been settled law since Fairclough was decided in 1951.”
10. In 1960, Parliament in United Kingdom passed the Indeceny with Children Act 1960, under which the Court of Criminal Appeal accepted that the appellant in Dunn could have been convicted. The Court of Appeal is not aware of the prevalence of this offence against young persons but we recommend that steps be taken to enact legislation based on the Indecency With Children Act. 1960.
Sir Elliott Mottley, P.