Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 56

HCA/2017/353/XC

Lord Justice General

Lord Brodie

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

CROWN APPEAL UNDER SECTION 74 OF THE CRIMINAL
 PROCEDURE (SCOTLAND) ACT 1995

by

HER MAJESTY’S ADVOCATE

Appellant

against

IP

Respondent

Appellant: Prentice QC, AD; the Crown Agent

Respondent: Findlater; C & N Defence              

18 July 2017

Introduction
[1]        The respondent is charged at Falkirk Sheriff Court with a contravention of section 30 of the Sexual Offences (Scotland) Act 2009 by engaging, between 25 and 31 May 2016, in online conversations with “other persons”, arranging to meet these persons “for the purpose of gaining access to a 14 year old girl”, travelling, with condoms and lubricant, to, and attempting to meet the other persons at, an hotel “for the purpose of engaging in sexual activity with a child”.  There is an alternative libel of conspiracy to participate in such conduct.

[2]        On 6 June 2017, the sheriff sustained a plea in bar of trial based upon the entrapment of the respondent.  The essence of the plea was that the respondent, who was not predisposed to commit the crime, was lured or incited by undercover police officers, using the website “fabswingers.com”, to converse about the prospect of engaging in sexual activity with a 14 year old.  The Crown has appealed that decision.

Facts
[3]        The facts are not in material dispute.  The police were investigating the fabswingers website following reports that certain communications on it, between two unnamed persons, contained messages relating to the sexual abuse of children.  Following the execution of several warrants and the recovery of computer equipment from these two persons, a large number of chat logs were examined in order to see if any others had an interest in such abuse.  Nineteen persons were regarded as being “of concern”.  They were divided into those of medium and high risk.  The respondent, who is a teacher, was one of those in the lower category.  The message content of his chat did not involve children, but included animals.  However, the respondent had had contact with one or both of the two persons originally identified as having expressed an interest in the abuse of children.  Authority was given to conduct an undercover operation.

[4]        The evidence against the respondent takes the form of chat logs between the respondent and the police (aka “Lisa”) on 24, 25, 26 and 30 May 2016, together with Skype communications on 26 and 30 May.  These included chat about several deviant sexual practices which, the sheriff observed, most people would consider “highly unpleasant and indeed repellent”.  These are not relevant for present purposes, but references to children are.  On 24 May, in the course of general sexual chat at about noon, Lisa mentioned that she had a daughter and a dog.  There was no discussion of a sinister nature about the child.  The following evening there was a further chat, again involving nothing of note.

[5]        On the evening of Thursday 26 May, Lisa asked the respondent what he was “into”.  The respondent referred to a number of sexual practices, but none involving children.  Lisa asked him about his fantasies.  There was mention of the involvement of the dog, but none of children.  The first reference to the daughter was when Lisa used her fictional presence to avoid online camera contact.  The respondent and Lisa then attempted to arrange a meeting, but Lisa said that her daughter would be in the house.  The respondent asked when her bedtime was; suggesting that sexual contact would only take place after the daughter was out of the way.  He asked Lisa if she would be comfortable engaging in sex whilst her daughter was in the next room.  There was then the following exchange:

“Lisa:   But how would you feel if she came in?

GL:      Surprised – but I’d carry on doing whatever xx

Lisa:    With me or her?

GL:      With you ... I wouldn’t run away though if she wanted to join in.”

There was a short chat about sexual activity between the respondent, Lisa and her daughter, in which the respondent stated that he had not previously been involved with an under age girl.  Lisa proposed meeting the respondent with her daughter and husband at her house on the following Tuesday (31 May).

[6]        On 30 May an arrangement was made for the respondent to meet Lisa’s husband at a Travel Lodge before being taken to her home.  During this call, the respondent made reference to engaging in sexual activity with the daughter.

Sheriff’s Reasoning
[7]        The sheriff reported that the law on entrapment was not in dispute.  It was set out in Renton & Brown: Criminal Procedure (6^th looseleaf ed at para 9-20.1) as occurring where the crime was committed “as a result of instigation or persuasion by the police or other authority, and ... by a person who would not otherwise have been engaging in the activity in question”.  To be legitimate, participation by an undercover police officer in a criminal conspiracy required to be preceded by a reasonable suspicion that a crime was being, or about to be, committed (Jones v HM Advocate 2010 JC 255).  It was agreed that the basis of the plea was that the conduct of the police was such that a prosecution would be oppressive, in that it would offend the public conscience and be an affront to the justice system.

[8]        The law was as stated in Attorney General’s Reference (No. 3 of 2000) sub nom R v Loosely [2002] 1 Cr App R 29.  The focus was on the role of the police in their formation of the accused’s intent to commit the offence.  If the accused had already formed an intention to commit the offence, or one of a similar kind, and the police did no more than give him an opportunity to do so, that was unobjectionable.  The matter would be different if the accused lacked such a predisposition and the police were responsible for implanting the intent.

[9]        There was, the sheriff held, no evidence that the respondent had a predisposition to commit such an offence when he was first engaged by the police.  He had had no involvement in the abuse of children.  There was no basis for suspecting that he had.  The police had implanted the necessary intent by persisting with the idea that a child could be involved in the respondent’s sexual activity.

Grounds of Appeal
[10]      The Crown appealed on the basis that the sheriff had erred: (i)(a) in holding that the police did not have reasonable suspicion that the respondent was about to commit a crime such as that libelled; (b) in concluding that the respondent had no predisposition to engage in the conduct libelled; and (ii) in holding that the actings of the police were designed to lure the respondent into activity which he would not otherwise have undertaken.  The respondent had willingly participated in a dialogue inviting sexual conduct.  The police had made reference to a 14 year old child, but had not suggested that the respondent should engage in sexual conduct with the child.  The police had simply offered an opportunity rather than luring the respondent into expressing a criminal desire.

Decision
[11]      In Jones v HM Advocate 2010 JC 255 it was said (Lord Carloway at para [88]) that the question was “whether or not an unfair trick was played upon the particular accused whereby he was deceived, pressured, encouraged or induced into committing an offence which he would never otherwise have committed”.  The resolution of the matter “will depend on the facts and circumstances of the individual case”.

[12]      In this case, the significant facts were, first, that there was no evidence that the respondent had ever expressed any interest in sexual activity with children in the original chat logs examined by the police.  Secondly, when the existence of the daughter was referred to initially by the police, that provoked no reaction from the respondent.  Thirdly, when he was asked specifically about what he was “in to”, and then what his fantasies might be, he made no mention of the daughter or children in general.  Fourthly, at the point of the initial discussion about the daughter being in the next room, the context of what he said did not involve sexual activity with the daughter, but concern in relation to her presence.  Fifthly, it was only when the police introduced the idea of the daughter entering the bedroom, during sexual activity between the respondent and other adults, that there was any mention by him of engaging in any activity involving the daughter. 

[13]      Against that background, the court is satisfied that the sheriff, whose views, having heard all the relevant circumstances, are entitled to be given some weight, was entitled to strike the balance which he did in determining that what may be a relatively fine line had been crossed.  For these reasons this appeal is refused.