Child sexual offences where child doesn't actually exist

16 October 2019

Not reviewed after the date of publication

Question:

A detainee was brought into custody, having been arrested under section 15 of the Sexual Offences Act 2003. He had travelled with the intention of meeting up with what he thought was a 13 year old girl, who he had been in regular communication with. However, he had actually been communicating with a paedophile hunter group.

As the suspect has not actually been communicating with a child (although he thought he was), is the offence under section 15 be made out? If not, what offence (if any) has been committed?

Answer:

We have located a very interesting piece of legal guidance ('Vigilantes on the internet - cases involving child sexual abuse'), prepared by CPS.

We would advise reading the full guidance but of specific interest to the circumstances described, CPS detail the potential offences that could be available as follows:

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 section 14 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 of the 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. See also R v Jones 2007, 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).

If evidence of indecent images of children are found, offences should be charged at the same time and included on the indictment in accordance with the joinder principles in rule 10.2(3) of the Criminal Procedure Rules. See R v D, P and U 2011 where the possession/making of indecent images of children was admissible as bad character under gateway (d) in a child sex abuse trial.

Therefore, it can be seen that the fact that the suspect was not communicating with an actual child is irrelevant for these offences / attempts to be made out.

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