England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16th January 2008

1. LORD JUSTICE MOSES: This is an application by the prosecution, in respect of which we have already given leave, against a terminating ruling under section 58(7) of the Criminal Justice Act 2003. That ruling was given during the course of a trial which started on 7th January 2008 at Teesside Crown Court. The ruling was given by HHJ Whitburn QC in respect of an offence alleged against the respondent of arranging or facilitating the commission of a child sex offence between 1st January 2007 and 20th March 2007 contrary to section 14 of the Sexual Offences Act 2003.
2. In essence, the question is whether the mere request by the respondent to someone to look for a young girl of 12 or 13 with whom he could indulge in sexual activity or whom could be persuaded to have sexual activity with a dog amounts to an offence under section 14 of the Sexual Offences Act 2003 or an attempt to commit such an offence. The judge ruled at the close of the prosecution case that the facts as alleged could not amount to an offence under section 14 nor an attempt to commit such an offence. It was against that ruling that the prosecution appeals.
3. The evidence, as the judge recorded it in giving his clear ruling, was that the respondent was a client of a prostitute who was the main prosecution witness. In March 2007, the respondent asked that lady if she knew of any young girls, 12 or 13 years old, who were working as prostitutes. He also asked the lady whether she would "go with a dog". That allegation founded a second count in the indictment, with which we are not concerned, of inciting the lady to have intercourse with an animal. The response from the prostitute was that she did not know any young girls but the respondent persisted, saying that he would keep in contact with her by means of text communications on his mobile phone, the number of which she knew. He was going to text, so he said, to see if she could find such a young girl. She did not say that she would do so and she gave him no reason to believe that that was what she would do. She in fact made no enquiries and it is greatly to her credit, whatever the outcome of this matter, that subsequently she reported the matter to the police.
4. But she reported it after two further text messages were received by her from the respondent, the first on 7th March 2007 which read, "Heard owt of 12 lass, let me know", and in similar terms a text the following day, "you got the 12 year old sorted yet?" These two communications had been formally admitted.
5. The section under which the respondent was charged reads:

"14. Arranging or facilitating commission of a child sex offence

(1) A person commits an offence if—

(a) 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

(b) doing it will involve the commission of an offence under any of sections 9 to 13."

Sections 9 to 13 are introduced under the rubric "Child sex offences" and include sexual activity with a child, causing or inciting a child to engage in sexual activity and engaging in sexual activity in the presence of a child.

6. It is important in analysing the meaning of this section to identify certain significant features in it. It is plain that the section introduces an offence which amounted to something more than and wider than a criminal attempt under the Criminal Attempts Act 1981. Were it not so, there would be no purpose in introducing an offence under section 14. In relation to offences under sections 9 to 13 the Criminal Attempts Act 1981 would have served that purpose.
7. The critical feature, as identified by Ms Mallett on behalf of the prosecution, is that this section, as other sections within the Sexual Offences Act 2003, was designed to impose criminal liability on preparatory steps. The purpose of the imposition of criminal liability was to prevent the risk of children being subjected to sexual abuse by imposing liability and punishing those guilty of taking such steps before the child suffered. For that purpose, the section does not limit the stage at which criminal liability is imposed to what would hitherto be regarded as an attempt; in other words, to a proximate stage before the commission of the full offence. The section widens liability to steps taken with the requisite criminal intent by way of preparation. The section is astute in not further defining or limiting those steps other than by requiring the objective of those steps, "the something", the doing of which involves the commission of the offences specified; see section 14(1)(b).
8. The section does not require an agreement or arrangement. It does not require the consent or acquiescence of anyone else. An arrangement may be made without the agreement or acquiescence of anyone else. A defendant may take steps by way of a plan with the criminal objective identified in the section without involving anyone else and the mere fact that no-one else is involved would not necessarily mean that no arrangement was made. In those circumstances, we reject the submission advanced by Mr West that, absent any agreement, formal or informal, there can be no arrangement.
9. He advances that contention because his essential submission is that a mere request, and there was no more than a request in the instant case, even if persisted in, cannot amount to arranging something. The section requires much more to be done and the facts alleged in this case are too remote. Before it could be said that the respondent arranged something, it would have to be shown that the person to whom he was making the request acquiesced in seeking and finding a willing girl.
10. The prosecution, on the other hand, submit that a mere request is sufficient. In support of that submission they rely in particular upon the case of R v Nicholas Jordan [2007] 2 Cr.App.R(S) 33 but, as the title of the report reveals, it merely concerns an appropriate sentence in respect of an appellant who asked a prostitute whether she could obtain for sexual purposes any girls under 16. No argument was advanced to suggest that that was not capable of amounting to an offence under section 14 and, whilst it is of some interest to note not only that a prosecution was pursued on that basis but that no attempt was made to suggest it did not amount to an offence, that is the limit of its assistance since the point appears never to have been taken.
11. The prosecution submits not merely that this did amount to arranging something within the meaning of the section but, even if they are wrong, the facts show that this respondent attempted to commit an offence under section 14. Mr West accepts that legally it is possible to envisage an attempt to arrange the commission of a child sex offence. At first blush this may seem surprising. After all, as we have already indicated, the whole purpose of this section was to impose criminal liability on steps taken by way of preparation. What room, therefore, is there for any attempt to commit acts by way of preparation? Nevertheless, we take the view that Mr West was correct in accepting that there could be an attempt to commit an offence under section 14. It is plainly not excluded by section 1(4)of the Criminal Attempts Act 1981. Although the acts criminalised by section 14 are acts of preparation, it is nonetheless a substantive offence and there is no reason why there should not be an attempt to commit such a substantive offence.
12. In Chief Constable of Hampshire v Mace [1984] Cr.App.R 40 section (1)(4)(a) of the 1984 Act did not preclude an attempt to procure the commission of an act of gross indecency under section 13 of the Sexual Offences Act 1956. Once it is accepted, as it has been, rightly, that there could be an attempt to commit an offence under section 14, it seems to us appropriate firstly to consider whether the facts in the instant case are capable of amounting to an attempt to commit an offence under section 14. As we have said, the starting point must be an acknowledgment that the acts of preparation on which criminal liability is imposed by section 14 are themselves a substantive offence and not an attempt. We repeat that point because it formed the basis of the ruling by the judge. He very helpfully set out in full his reasoning, which has enabled this court to deal with this appeal with the expedition he suggested. He said that:

"I find as a matter of law that in asking the questions contained in the evidence which I have recited this defendant was, if at all, doing an act preparatory to an attempt to commit this offence."

We do not agree and respectfully believe that the judge in so concluding erred. The substantive offence was, as we have said, the very acts of preparation with which he was charged. In this case the jury was entitled to take the view that what he did in making the request of the prostitute was an attempt and not the mere preparation to make an arrangement. The defendant need have done no more than make the request. Once that request had been accepted then something had been arranged and this defendant could properly be said to have arranged something the doing of which would involve the commission of an offence, in other words sexual activity with a child. The judge erred in regarding the request as an act preparatory to an attempt. On the contrary, it was the final thing he needed to do before the full offence was committed.

13. Mr West draws attention to the limited nature in law of an attempt by reference to the Law Commission's consultation paper, Conspiracy and Attempts, Consultation Paper Number 183. The main thrust of that consultation paper is to point out the extent of acts which constitute an attempt, limited as they are by the need for them to be approximate activity before the commission of the full offence. It is for that very purpose that they suggest widening the criminal law so as to include many more preparatory offences other than those for which, as they list, statute already makes provision. But, whatever the limits of an attempt in criminal law, we reiterate: the defendant need do no more than ask. If that request had been accepted the full offence was committed. The jury would at least have been entitled to take that view. In our view, the judge was wrong to withdraw the offence of attempt from the jury. All that would be required would be an amendment by the prosecution to add a count of attempt to the indictment.
14. We desire to make clear that we have ruled in this matter as a matter of urgency. The judge helpfully identified in a note the importance of expediting this appeal. At the moment the case has been adjourned. The jury can reassemble next week and as a result of our ruling ought to do so. The importance of this is that the witness, to whom we have already paid tribute, is in such a condition that she should not be required to return to court and start to give evidence again in another hearing. In those circumstances, we have, as we said, not reserved our judgment, even though there is no previous authority on the point. We make this observation because nothing we have said is designed to indicate that what is alleged might not indeed constitute the full offence under section 14. In other words, in making the request itself, the defendant could properly be said to have been arranging to do something. But we need not decide that today in the light of the availability, as a continuing case, of a charge of attempt. It will now be for a jury to decide whether the defendant's request was more than merely preparatory or was an attempt to arrange something, in other words, sexual activity with a child. For these reasons, the appeal is allowed.
15. Any other orders that I need make?
16. MR WEST: My Lord, I am looking at Archbold, page 1143, for section 61 of the Criminal Justice Act 2003, which deals with the powers of this court on such an appeal as this.
17. LORD JUSTICE MOSES: Yes.
18. MR WEST: "On an appeal under section 58 the Court of Appeal may confirm --
19. LORD JUSTICE MOSES: Where are you reading from?
20. MR WEST: The bottom of page 1143. Section 61: "On an appeal under section 58 --
21. LORD JUSTICE MOSES: Confirm, reverse or vary. Yes.
22. MR WEST: Confirm, reverse or vary.
23. LORD JUSTICE MOSES: Subsection (4), "where it reverses the ruling, it must ... order that proceedings for that offence may be resumed."
24. MR WEST: Well, before you get to that you get to (3), which is this: "Where the Court of Appeal confirms the ruling ... it must in respect of the offence..."
25. LORD JUSTICE MOSES: Yes, but we have not confirmed the ruling, we have reversed it.
26. MR WEST: Well, the judge's ruling was the charge being the full offence of arranging, there is no case to answer to go to the jury.
27. LORD JUSTICE MOSES: No, his ruling was that it was neither a full offence nor an attempt.
28. MR WEST: Correct, but the charge that was there in the trial was the full offence and not attempt.
29. LORD JUSTICE MOSES: Was it not incorporated?
30. MR WEST: It is incorporated, yes.
31. LORD JUSTICE MOSES: Well, he should not have stopped it then.
32. MR WEST: The question I am posing is what is the order which this court is proposing to or should make with regard to whether the trial should be permitted to continue on a charge of attempt --
33. LORD JUSTICE MOSES: I am ordering that proceedings for the offence of attempt should be resumed in the Crown Court, as the judge considered that and said there could not be an attempt.
34. MR WEST: Is it a matter for the judge in the Crown Court to say whether or not the Crown should be allowed at the stage which we are in the trial --
35. LORD JUSTICE MOSES: It might be too late, you mean?
36. MR WEST: Yes, exactly.
37. LORD JUSTICE MOSES: He might have cross-examined on some other point.
38. MR WEST: Well, more to the point, the learned judge raised the question at the start of the trial with both counsel and said words to the effect of "this looks like at best an attempt" and Ms Mallet, as she has done here today, stuck her chin out and said "oh, it is the full offence" and we will argue --
39. LORD JUSTICE MOSES: Well, why did the judge give a ruling about attempt?
40. MR WEST: Because he had raised, as he was quite entitled to do and quite proper that he should, is this even an attempt, and --
41. LORD JUSTICE MOSES: So you are saying for quite separate reasons we could not go ahead as an attempt because it would be unfair to your client.
42. MR WEST: I am saying it is arguable, probably more before the judge than this court, that he should not allow the --
43. LORD JUSTICE MOSES: The attempt to go before the jury.
44. MR WEST: Correct, because the prosecution (a) had an opportunity to charge it at the start --
45. LORD JUSTICE MOSES: But is not the solution to all this then just to say that, if the judge agrees with those points that are nothing to do with our ruling but it is to do with just general unfairness because you could not properly cross-examine or something, he could say so.
46. RECORDER OF LONDON: It is an abuse argument, in other words.
47. LORD JUSTICE MOSES: It is just too late to amend.
48. MR WEST: It is too late to amend is an argument which I should be entitled to raise with the judge. (pause)
49. RECORDER OF LONDON: This court has no power, I ask, has it, to make such a ruling.
50. MR WEST: I agree, which is why I adverted to section 61. What the judge ruled was there is no case to go on --
51. LORD JUSTICE MOSES: Yes, we have reversed that. It seems to me, subject to what my Lord says, it is still open to you to make those arguments to the judge next week and say it is all far too late and the prosecution should have amended at the beginning.
52. MR WEST: Well, I do not think I can ask for any more at this stage than your liberty, effectively, to make that submission to the judge.
53. LORD JUSTICE MOSES: Well, I do not think you need it but we can make it. That is all right, is it not, if he wants to?
54. MS MALLETT: I see no reason why my learned friend cannot make that submission. Could I seek clarification though? By reserving the learned judge's ruling, which was that on count 1 there was no case to answer for the reasons that he gave, are your Lordships intending that count 1 should continue to remain as an option for the jury as well as the alternative attempt?
55. LORD JUSTICE MOSES: What we have ruled is that it should be left to the jury on attempt. Now, whether as a matter of technical -- it requires amendment, but it would obviously be, as I think the Recorder suggested, advisable. I always thought it would be open to a jury to convict of attempt even if it was not pleaded but I am not sure about that.
56. MR WEST: My Lord, it is.
57. MS MALLETT: That is right. Sorry, I interrupted.
58. LORD JUSTICE MOSES: But would it not be much better to alter the wording of the indictment if the judge lets you, subject to these other arguments, and so that they have a document in front that tells them what they have to decide.
59. RECORDER OF LONDON: So count 1 becomes attempting.
60. MR WEST: Well, my Lord, again, it may appear to be nitpicking and a last stand, as it were, but this is why I referred to section 61, which sets out the powers of the court. If you are varying the ruling to this extent, you are saying the judge was right to say no case on arranging but wrong to say --
61. LORD JUSTICE MOSES: We have not bothered to decide that.
62. MR WEST: What subsection (3) says:

"Where the Court of Appeal confirms the ruling, it must, in respect of the offence or each offence which is the subject of the appeal, order that the defendant in relation to that offence be acquitted..."

Now if, as I have submitted and do, he could not be convicted of the full offence of arranging, subsection (3) appears to adjoin the court to --

63. LORD JUSTICE MOSES: Well, that was not just his ruling. That envisages one ruling. What we have probably done is varied it, varied the ruling, because the ruling -- it was not two rulings, it was one ruling that dealt with two separate issues. So I do not think we fall within subsection (3). We have probably varied the ruling and order the proceedings for that offence, and by that offence we mean intent, to be continued.
64. MR WEST: Very well. Subject of course to submissions --
65. LORD JUSTICE MOSES: And then, of course, if you are convicted, you can come back here and say we did not have power because we misconstrued the 2003 Act, possibly. I am not sure about that.
66. Anyway, what we want to make clear is that nothing we have said, we are not encouraging you, is to be read as a bar to you saying it is too late to amend. We take the view that the ruling was one ruling which dealt with two separate issues, namely the full offence and the attempted offence. In those circumstances, probably most accurately, what we have done is varied the ruling under subsection (4), which permits us to make the order that we do do and that is that proceedings for that offence, and by the offence we mean the offence of attempt to commit an offence under section 14, may be resumed in the Crown Court.
67. MR WEST: Two ancillary matters. One is the question of publicity, because the trial is to be resolved.
68. LORD JUSTICE MOSES: So presumably his name should only be referred to as whatever it was, R. Yes?
69. MR WEST: Yes.
70. LORD JUSTICE MOSES: I am not quite sure why it matters because all that we have said is something that the jury have already heard.
71. MR WEST: Yes.
72. LORD JUSTICE MOSES: Why should there be anonymity? I think there is something in the section which says it normally should be.
73. MR WEST: I think it normally should be. I do not think it is very likely that any of the jurors, between now and next Wednesday when they resume their deliberations, if they do, in the trial, will have read the report of this court's judgment but it is possible, which leads me to the second ancillary matter and that is this: could you order that a transcript of the court's judgment, including this exchange at the end, be bespoken and sent to the parties because I am sure, if nobody else will be interested in it, and I certainly would be, HHJ Whitburn would.
74. LORD JUSTICE MOSES: I am not sure what the mechanics are. I would assume that that happened automatically. Anyway, I shall order that the transcripts be available to the court next week and they may use an unrevised one. I will revise it in case it is reported but I will not have time to revise it before next week. Anything else? (pause) Where in the section does it say it should normally be anonymous?
75. MR WEST: I think it is section 72 but -- (pause)
76. LORD JUSTICE MOSES: It is section 71, no publication to be reported of anything done under section 58. Page 1146. We can make an order that it is not to apply, see subsection (3). Have you any representations as to whether they should be? I cannot see how it possibly harms your client.
77. MR WEST: Out of an excess of caution I would submit that no publicity until the trial is resumed next week.
78. LORD JUSTICE MOSES: Until it is resumed?
79. MR WEST: Well, until it is concluded. I assume it will resumed and concluded in fairly short order next Wednesday.
80. RECORDER OF LONDON: Until further order from the court of trial.
81. LORD JUSTICE MOSES: Why do we not let the judge decide that. We will say no publicity at the moment but it is open to the judge to say that there is no need. I cannot see any problem once the trial actually starts again.
82. Thank you very much.