Vigilantes and “attempted” offences.

On National Child Exploitation Awareness Day 2019, the Crown Prosecution Service (CPS) unveiled a change of strategy and policy relating to the prosecution of “sting operation” grooming cases. Where police or vigilantes pretend online to be children so as to snare paedophiles, the charging of an “attempt” is to be abandoned in favour of the substantive grooming offence. But does the change amount to much in reality, wonders Benjamin Knight

It is a fairly common scenario these days. An online vigilantes group will set up a fake online presence for a fictitious child. They will then pretend to be a child and arrange to meet with the adult for sexual activity, whereupon they video the would-be abuser and paste it on Facebook and report it to the police.

The online part of the above is often on Facebook but can be pretty much anywhere where there is social interaction. I have seen the tactic deployed on Facebook, Skype, Snapchat, Grindr, Tinder, reddit, as well as the more sinister online locations such as Omegle (whose strapline is “Talk to strangers!”) and various locations largely accessible through TOR Browser and the like.

Public Safety Announcement: Let me pause here to remind parents reading that Facebook and the “household name” social media services should give little cause for concern in most browsing histories (so long as proper adult supervision is in place – as it should always be) but finding sites such as Omegle, Ome.tv or emeraldchat in a child’s browsing history (especially where TOR Browser or similar is also present) should always ring an alarm bell and should encourage urgent and robust parental intervention.

There have been examples of groups who indicate in the message chain that the conversation is roleplay but then delete those messages and leave simply the impression of a man grooming a child for sex. But mostly, sadly, the reality is that an offender is usually trying to convince what he thinks is a child to meet up for sexual activity of some type. The vigilante or police sting operative is simply providing the offender with the opportunity to incriminate himself as an abuser.

The change in the CPS approach

By way of background, the usual practice in cases such as those above has been to charge the offence of Attempting to facilitate or arrange a child sex offence. The “attempting” aspect of that charge has been used for years now because it was thought that it was impossible to commit the substantive offence when there was, in fact, no child involved.

However, it seems that the CPS has now realised that it has misinterpreted the law and needed a way to dress up its “new” approach in charging the substantive offence.

The recent CPS press release says:

Paedophiles who think they are grooming a child for sex, but are actually communicating with an adult, will now face tougher charges.

Would-be abusers caught in undercover operations are to be prosecuted in every case for the same offence as those who meet real-life victims under new CPS guidance.

Evidence obtained by police or other activist groups will result in substantive charges of arranging or facilitating a child sex offence – provided it is of sufficient quality to secure a realistic prospect of conviction.

Previously, charging such crimes as ‘attempts’ had been an option available to prosecutors. This had raised some concern that offenders might receive overly generous discounts in their sentences where the defence pointed out in mitigation that there was no tangible victim.

The change – announced on National Child Sexual Exploitation Awareness Day – follows discussions with stakeholders and external legal advice, which stated that “once the intention is proved, it is immaterial that it is in fact impossible to commit the substantive offence”.

One might perhaps understand the confusion. Section 14 of the Sexual Offences Act 2003 provides the offence of arranging or facilitating the commission of a child sex offence. A person commits this offence if:

• He intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and doing it will involve the commission of an offence under any of sections 9 to 13

• A person guilty of an offence under this section is liable on conviction to up to 14 years’ imprisonment

So, what matters is the offender’s intention, not whether the thing he was going to do was possible or not.

The closest CPs internal guidance that can be found on this is in relation to conspiracy. The CPS says:

“Even if it may not be possible to commit the full offence because the factual basis is not present, if the facts had been as the defendant believed them to be, they can be charged with attempting to commit the offence in question (see R v Shivpuri [1986] 2 All ER 334).

The House of Lords in Shivpuri made it clear that the only kind of impossibility which is relevant to liability is true legal impossibility. Even if the facts were such as the accused believed them to be, then the defendant would still not be committing any offence, having made a mistake about what the law was. If the defendant for example, believed it was an offence to import snuff and does import it, they do not commit the offence of attempting to supply a controlled drug, as the importation of snuff is not a crime.”

It remains to be seen if the CPS will now look to charge the substantive offence across the board, where the facts are not as D believes them to be or whether this sea-change relates only to child sex offences.

It should be noted that the new CPS policy is not inconsistent with the ruling in Shivpuri; it is simply a different approach.

What is clear is that the CPS appears to have erred on the side of caution for many years. Or it has been in error for years.

What has prompted the change?

This rather depends upon how cynical you are. Officially, the move has been prompted by fears that the use of the “attempts” approach has resulted in soft sentences and a conviction for the substantive offence would result in a higher sentence. Indeed, looking at recent sentencing appeals, there may be some truth in that.

If that is true then this is part public posturing and part the taking of a more robust stance.

However, a more cynical view would be that the CPS has followed the reasoning in Shivpuri for a long time and has only just come to the conclusion that the wording of the statute does not require anything more than the intention to do the illegal act. It matters not that the act itself would have been impossible.

Vigilantes

It is worth noting that the CPS has specific guidance on the actions of vigilantes and the possible problems and evidential considerations with them.

In particular, the guidance now observes that:

“There are a number of potential offences contrary to the Sexual Offences Act 2003 (“the 2003 Act”) and prosecutors should select the most appropriate offence, which will provide the court with adequate sentencing powers. Potential offences include:

Arranging or facilitating the commission of a child sex offence contrary to section 14 of the 2003 Act: If considering a charge under s14 arising from a ‘vigilante’ case, prosecutors should charge the substantive offence and not an attempt. The offence is committed if the person intentionally arranges or facilitates the commission of an offence under sections 9-13 SOA 2003. The focus of the offence is on the child sexual offence which the person intended to arrange or facilitate. The fact that an offence may have been impossible has no bearing on the intention possessed at the time it was arranged of facilitated.

An attempt to commit an offence under section 15 of the 2003 Act of attempting to meet a child following sexual grooming contrary to section 1 Criminal Attempts Act 1987. This charge requires the defendant to intend to commit a relevant offence. Intention may be inferred from the content of messages but in the absence of such evidence consideration should be given to charging an attempt to commit an offence under section 14 of the 2003 Act, which does not require proof of intention.

NB. A person may be convicted of an attempt to commit a full offence even though on the facts it is impossible R v Shivpuri [1987] A.C. 1. See also R v Jones [2007] EWCA Crim 1118, which confirmed that an offence does not require proof of an identifiable child.

An attempt to commit an offence contrary to section 15A of the 2003 Act namely, sexual communication with a child.

Causing or inciting a child to engage in sexual activity contrary to sections 8 or 10 of the 2003 Act (or attempting to do so).

Indecent images of children (IIOC) offences (see legal guidance). If evidence of IIOC offences is found then they should be charged at the same time and included on the indictment in accordance with the joinder principles in Crim PR 10.2(3). See R v D, P and U [2011] EWCA Crim 1474 where the possession/making of indecent images of children was admissible as bad character under gateway (d) in a child sex abuse trial.”

Conclusion

Whatever the motivation for the CPS policy announcement, it is clear that there will be a change in the indictments of such offenders in future and it is likely that sentencing judges will start to deploy slightly higher sentences accordingly. That will not be a “bump” in sentencing. Rather, it will be judges simply no longer reducing sentences away from what they would have imposed if the person at the other end of the online conversation had actually been a child.

The practical differences for practitioners will be two-fold.

First, lawyers will have to make sure that they know about this change so as to avoid having a spurious argument at PTPH stage (or later).

Indeed, in order to preserve credit, solicitors appearing in the magistrates’ court will have to avoid giving not guilty plea advice due to the choice of charge (as would have been the case up until this change in policy).

Second, clients may well wonder why the offence is charged the way that it is. May of those who commit online offences research and discuss the current legal situation with other offenders. They frequently misinform each other and there is plenty of duff information online. Much like the prisoner who found an old copy of Archbold in the prison library (before Grayling, of course), many of these offenders will come to the first conference clear in their own mind that they understand the law involved. This will be an aspect upon which they will have to be corrected at the earliest stage.


Central Chambers has a criminal team with experience in all types of sexual offences, including those involving vigilantes and “sting” operations.

If you would like to instruct Benjamin Knight or another member of the criminal team, please do not hesitate in contacting the criminal clerks by clicking here or by calling on 0161 236 1133

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