Robin Edward Hoare v R

Where a defendant’s reasonable belief about a decoy correspondent’s age is in issue, the jury must assess any actual belief in the light of all relevant circumstances known to the defendant, including the messages and imagery received.

An unaltered photograph which is a true likeness of a person aged 16 or over may assist that assessment. The prosecution should disclose that person’s actual age when photographed. Conversely, where imagery has been digitally manufactured, altered or modified so that it is not a true likeness, the original subject’s age and appearance are irrelevant. The defence must instead be told that limited fact, and the jury should be directed not to speculate about the original image or digital process.

The appellant was convicted at Sheffield Crown Court of attempted sexual communication with a child and attempting to incite a child to engage in sexual activity. The charges arose from sexualised social-media messages with an undercover police officer posing as a 14-year-old girl.

The appellant maintained that he believed he was communicating with an adult engaged in role-play. He relied in part on profile images sent by the decoy. The trial judge held that the actual age of the person depicted was prima facie disclosable, but withheld it following a public interest immunity hearing.

On appeal, the sole issue was whether the non-disclosure of that age made the convictions unsafe, and what disclosure was required where decoy imagery was used in cases in which reasonable belief as to age was disputed.

1. Appeal allowed. The convictions were unsafe, were quashed, and the appellant was ordered to be retried on both charges.

2. Under sections 10 and 15A of the Sexual Offences Act 2003, the prosecution could establish the relevant mental element either by proving that the defendant did not believe the correspondent was aged 16 or over, or by proving that any such belief was unreasonable. The latter inquiry concerns the defendant’s actual belief, assessed against all relevant circumstances known to that defendant. It is not an inquiry into what a hypothetical reasonable person would have believed. This was consistent with R v Ishaqzai [2020] EWCA Crim 222.

3. Where a decoy image is an unaltered photograph and a true likeness of a real person who was aged 16 or over when photographed, the person’s actual age is capable of assisting the defence or undermining the prosecution. It must therefore be disclosed. The jury may take that fact into account when deciding whether the defendant may have held, and reasonably held, the asserted belief.

4. Different rules apply where images were digitally manufactured, altered or modified to create an image fitting the decoy profile. The original subject’s true age, appearance and the details of the digital process are irrelevant because the defendant did not see the original image. The defence must, however, be informed that the image was manufactured, altered or modified so that it was not a true likeness. That limited fact will generally be placed before the jury.

5. Where that fact is in evidence, the judge should direct the jury that there is no evidence of the original subject’s age or of the process used, that it must not speculate on those matters, and that it must focus on the messages and imagery received by the defendant.

6. Here, the prosecution had provided neither the subject’s age in the first category nor the necessary limited information in the second. The jury might consequently have assumed, without evidence, that the images were true likenesses of a real girl aged under 16. That created unfair prejudice and required the convictions to be quashed. The court also made reporting-restriction orders under the Contempt of Court Act 1981.

• Court of Appeal (Criminal Division) — in [2023] EWCA Crim 1242, allowed the appeal, quashed both convictions, and ordered a retrial at Sheffield Crown Court.
• Crown Court at Sheffield — convicted the appellant of attempted sexual communication with a child and attempting to incite a child to engage in sexual activity. No citation was stated.