Hedgcock & Ors, R v

At the close of the prosecution case, an adverse inference necessary to prove an element of an offence may be left to the jury only if a reasonable jury, properly directed, could draw it to the criminal standard. That requires the rejection of all realistic explanations consistent with innocence.

Where online discussions apparently disclose an agreement to commit an offence but are equally consistent with sexual fantasy, the discussions alone cannot prove a real agreement. In the absence of extraneous objective evidence favouring reality, a judge must uphold a submission of no case to answer.

The appellants pleaded guilty to numerous counts concerning indecent photographs and movies of children. They were tried separately on alleged conspiracies to rape, said to arise from internet conversations between Dyer and Hedgcock, and between Dyer and Mayers.

The Crown contended that the conversations recorded real agreements to rape girls described as Hedgcock’s nieces. The appellants maintained that the exchanges were sexual fantasy. The trial judge refused applications to dismiss the conspiracy counts and later rejected submissions of no case to answer. The jury convicted Dyer and Hedgcock on count 1, and Dyer and Mayers on count 3.

On appeal, the central question was whether the chats and surrounding material provided evidence on which a properly directed jury could conclude, beyond reasonable doubt, that the apparent agreements were intended to be carried out.

Disposition

The court allowed the conviction appeals. The judge should have accepted the submissions of no case to answer on the two conspiracy-to-rape counts.

1. The criminal standard of proof applies to inferences concerning every element of an offence. The formulation in Kwan Ping Bong v R [1979] AC 609 was consistent with that in R v Jabber [2006] EWCA Crim 2694. At half time, the question was whether a reasonable jury, properly directed, could draw the adverse inference and reject all realistic possibilities consistent with innocence.

2. The court applied the approach in R v Galbraith 73 Cr App R 124. Although drawing inferences is ordinarily for the jury, a judge must stop the case where a reasonable jury could not reject a realistic innocent explanation to the criminal standard.

3. In their particular context, the chats were at least as consistent with fantasy for sexual gratification as with genuine rape plans. The transcripts disclosed no inherent probability that the apparent agreements were real. A conviction therefore required extraneous objective evidence favouring that interpretation.

4. The surrounding facts did not supply that evidence. The participants lacked identifying details and a means of contact beyond the chat line; no contact followed the relevant conversations; Dyer promptly reported to the police and preserved the chat material; and aspects of the exchanges were demonstrably invented. No reasonable jury could exclude the fantasy explanation as fanciful or unrealistic.

5. The court left undisturbed the sentences on counts 4 to 51. It also held that the lifetime notification requirement under Part 2 of the Sexual Offences Act 2003 would stand.

• Court of Appeal (Criminal Division) Allowed the appellants’ conviction appeals on the conspiracy-to-rape counts: [2007] EWCA Crim 3486.
• Southwark Crown Court His Honour Judge Rivlin QC refused applications to dismiss counts 1 to 3 on 21 June 2006 and rejected submissions of no case to answer on 23 November 2006. The jury convicted Dyer and Hedgcock of the first alleged rape conspiracy, and Dyer and Mayers of the second. Sentences were imposed on 5 February 2007.