Jones, R v

An offence under section 8 of the Sexual Offences Act 2003 may be committed by directly inciting children under 13 to engage in sexual activity without identifying an individual child. The gravamen is the incitement, rather than its effect on a particular child.

Police do not entrap a suspect merely by using an adult officer posing as a child to provide an opportunity to commit an offence already indicated by the suspect’s conduct. The question is whether the operation was so seriously improper that a prosecution would bring the administration of justice into disrepute. An attempt may be committed where the defendant intends to incite a child but the supposed child is an adult, provided the other elements of attempt are established.

The appellant pleaded guilty at Lewes Crown Court to several offences arising from a police investigation into child sexual abuse. He also pleaded guilty after the trial judge refused to stay count 21, which alleged an attempt to cause or incite a child under 13 to engage in penetrative sexual activity.

The count arose from text communications between the appellant and an undercover police officer, “Amy”, who represented herself as a 12-year-old girl responding to sexually explicit graffiti bearing the appellant’s telephone number. The appellant appealed his conviction on count 21. He contended that the police had entrapped him, that no attempt could be committed because Amy was not a child, and that he should instead have been charged under section 10(1) of the Sexual Offences Act 2003.

1. Appeal dismissed. The judge was correct to refuse a stay for abuse of process and to reject the legal challenges to count 21.

2. Section 8 of the Sexual Offences Act 2003 does not require the prosecution to identify a particular child as the object of the incitement. Its gravamen is the direct incitement of a child or children under 13 to engage in sexual activity. A statement may therefore found the offence although no recipient is identifiable. The court applied the analogous principle in R v Most (1881) LR 7 QBD 244.

3. Applying R v Loosely [2001] UKHL 53, the police had provided an opportunity and obtained evidence; they had not instigated or artificially created crime. The appellant’s communications with the journalist showed that he was seeking opportunities to incite a child to penetrative sexual activity. The officer’s limited pretence as a child, her responses to maintain the covert operation, and the properly authorised operation were proportionate. There was no persistent or forceful pressure, and no abuse of state power.

4. Under the impossibility principle applied from R v Shivpuri [1987] AC 1, the fact that the supposed child was an adult did not prevent liability for an attempt. On the facts available when the judge ruled, there was evidence that the appellant intended to incite a particular child under 13 to engage in penetrative sexual activity and had done acts capable of being more than merely preparatory.

5. The police did not act improperly by having Amy state that she was 12 rather than 13 or older. Parliament had created a more serious offence for incitement directed at a child under 13. The appellant had sought girls aged eight to 13, asked Amy’s age, and continued after being told she was 12.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction on count 21: [2007] EWCA Crim 1118.
• Lewes Crown Court: Judge Niblett refused, on 25 April 2006, the appellant’s application to stay count 21 as an abuse of process. The appellant then pleaded guilty and was sentenced to life imprisonment on that count, with a minimum term of 10 years less time on remand.