TL, R v, Court of Appeal - Criminal Division, July 31, 2018, [2018] EWCA Crim 1821

Resolution Date:July 31, 2018
Issuing Organization:Criminal Division
Actores:TL, R v
 
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Neutral Citation Number: [2018] EWCA Crim 1821

Case No: 201802044

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM CROWN COURT AT NOTTINGHAM

His Honour Judge Sampson

T20177253

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 31/07/2018

Before:

THE RIGHT HONOURABLE THE LORD BURNETT OF MALDON

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES

THE HONOURABLE MR JUSTICE WILLIAM DAVIES

and

THE HONOURABLE MR JUSTICE NICKLIN

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Between:

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Mr P Jarvis (instructed by Crown Prosecution Service) for the Appellant

Mr G.A.M. Purcell (instructed by Philips, Mansfield) for the Respondent

Hearing dates: 13 June 2018

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The Lord Burnett of Maldon CJ:

1. This is a prosecutor's appeal against a decision to stay criminal proceedings in the Crown Court as an abuse of process.

2. The respondent, Mr L, faced a single count indictment in the Crown Court at Nottingham alleging that he attempted to meet a child following sexual grooming contrary to section 1(1) of the Criminal Attempts Act 1981. The essence of the allegation is that between 29 April and 3 May 2017 he communicated online and by WhatsApp with a person he believed to be a girl who was 14 years old. He arranged for that girl to go to his flat to take part in a threesome with his girlfriend. The person with whom he was communicating was an adult male, Jamie-Ray Mr U, who ran a group called ``Predator Hunters''. This is one of a large number of groups established across the country which seek to expose adults seeking to have sex with children. He and others attended the appointment at the respondent's flat, having tipped off the police. The respondent was arrested and his electronic communications seized. The prosecution was mounted on the strength of the content of his electronic equipment. The respondent's defence, as disclosed in the defence case statement, was that his girlfriend was responsible for the messages sent from his phone, not him. She gave evidence for the prosecution and denied that suggestion.

3. Before the trial started, an application was made on behalf of the respondent to stay the proceedings as an abuse of process relying on entrapment and the principles set out in the decision of the House of Lords in R v Looseley [2001] UKHL 53; [2001] 1 WLR 2060. The judge rejected that application but indicated that it might be renewed at the end of the prosecution case in the light of the evidence given by Mr U. On 8 May 2018 the application was renewed successfully and the Judge stayed the prosecution as an abuse of process.

4. The prosecutor seeks leave to appeal against the terminating ruling pursuant to section 58 of the Criminal Justice Act 2003, the jury having been discharged. The Registrar has referred the prosecution application for leave to appeal to the full court. The provisions of section 71 of that Act apply to these proceedings with the result that no publication may include a report of these appeal proceedings, save the specified basic facts, until the conclusion of the trial.

5. We grant leave to appeal and, for reasons which we will explain, allow the appeal.

The facts in more detail

6. On 29 April 2017 the respondent's phone was used to join a chatroom called ``Say Hi'' which may be accessed via an app. It appears to be a vehicle through which sexual encounters may easily be arranged. The profile suggested ``me and my female partner wanting a girl that's willing to try a new experience'' and indicated that the girl should be 18 to 29. A few days later Mr U joined the chat room and set up a profile for a female named ``Bexie''. The registration suggested she was 18, because unless that statement is made during the application process it is rejected.

7. Nonetheless, although the profile gave a date of birth in 1999, it went on to say:

``Hiya am just your average 14-year-old girl looking to meet new friends''.

The respondent, or whoever was using his phone, replied and asked in terms whether she was looking for sex and wanted a threesome with a 22-year old man and a 19-year-old female. Bexie's response was:

``Hey am 14 so I'm very inexperienced''.

The reply was:

``It's ok we are experienced we will learn u and u can join in on sex as threesome''.

The following day Bexie replied

``but I'm a virgin ...''

There followed an exchange about where she and the phone user lived. Having established that they lived relatively close to each other, the respondent's phone asked,

``do you wanna meet up and sleep at ours for the night''.

Bexie answered,

``what to do though I've never done or met a boy before''.

8. In the next exchange, which took place late at night, Bexie indicated that she was getting ready for bed because she had school the next day. She was asked when she was off school and she indicated a date. The next set of messages included the following:

``Do you wanna meet after school''

``What to do?''

``Go bk to ours''

``Okay but what will we do?''

``Have sex and show u how it feels''

``But I don't know how to have sex. Does your girlfriend know?''

``Yh''

``Oh ok is she ok with this?''

``Yh completely''

``We both want a threesome can u send me a pic of u''

(a picture was sent by Bexie)

``There you go''

``U got any naked pics of u if you haven't can u send me some if u don't mind''

``I don't send them sorry but if I come to you then I'll let you take some. Shall I come tomorrow after school?''

A conversation followed about location before Bexie continued.

``Does my age not bother you''

``No''

``Have you done it before''

``Have I done what before''

``Done it with a girl my age before''

``No''

``Oh ok so why am I so special and is it ok if I come up after my tea xx''

9. The exchange continued with more detailed arrangements and with discussion of what excuse Bexie would give to her mother. She asked for an assurance that she would not be hurt. She was then asked:

``U ok to have sex with us''

``I dunno how n never done it before though''

``What''

``I've never had sex before what if I am rubbish''

She was reassured that her photograph meant she was gorgeous and that it did not matter that it was her first time. A photograph of the respondent and his girlfriend was sent back. There were further exchanges in which she expressed concern about getting pregnant. She was told:

"U won't I promise u that ... because I won't cum inside u ... or do u want me to get sum condoms now"

That produced the response ``are they them rubber things''. That was confirmed and in a gap in communication of 15 minutes the phone user went out and bought condoms and sent a photograph as proof. After further exchanges about the time of meeting and how long Bexie would stay, the arrangement was finalised. As we have indicated, Mr U, together with others from his group, and the police turned up at the respondent's door.

The application and the ruling

10. It was submitted by Mr Purcell on behalf of the respondent that he had been entrapped and that Mr U had set out to incite offences when otherwise no offence would have been committed. It was suggested that the police were encouraging the activity of vigilante groups, including Mr U's in particular, and that the use of the evidence provided by such groups suggested at least tacit support for their activities. It was argued that the image provided by Bexie was of someone older than 14. It was submitted that the group of which Mr U was part was malicious and engaged in uncontrolled and unregulated activity. The heart of the submission was encapsulated in paragraphs 18 and 19 of the written argument in support:

``18. It is submitted that the vigilante groups ought not to be encouraged by the police and the prosecution and ultimately the...

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