R v Derek Halsall

In a decoy online sexual-offence case, non-disclosure of a profile image does not make a conviction unsafe where the jury received a favourable direction addressing the defendant’s claimed belief about the decoy’s age and the defendant could not have obtained a more favourable direction. The safety of the conviction remains a matter for the particular circumstances and the evidence as a whole. For sentence, the relevant guideline may require assessment by reference to penetrative sexual activity, culpability, the absence of actual sexual activity and personal mitigation. Age and good character may justify reductions, but do not necessarily make a proportionate custodial sentence manifestly excessive.

The applicant was convicted at the Crown Court at St Albans of attempting sexual communication with a child and attempting to arrange or facilitate a child sex offence. He was sentenced to four years’ imprisonment on the lead count, with nine months concurrent on the other count.

After a single judge refused an extension of time and leave to appeal, the applicant renewed both applications. The proposed conviction appeal raised alleged jury errors, ineffective representation and the non-disclosure of a decoy profile image. The sentence appeal challenged the treatment of age, character, personal circumstances and the absence of a pre-sentence report. The court also considered the relevance of R v BNE [2023] EWCA Crim 1242; [2024] 1 Cr App R 9 and the guidance referred to in R v Reed [2021] EWCA Crim 572; [2021] 1 WLR 529.

The renewed application for an extension of time and leave to appeal against conviction was refused. The renewed application for leave to appeal against sentence was also refused.

1. Conviction. The proposed grounds were principally disagreements with the jury’s assessment of the evidence and complaints about representation. The trial judge’s directions of law were impeccable, and his summary of the evidence was fair and balanced. None of the material disclosed an arguable ground or rendered the trial unfair.
2. Profile image. In R v BNE [2023] EWCA Crim 1242; [2024] 1 Cr App R 9, the court gave guidance that, in a decoy case, the provenance and, where appropriate, the true age of a person shown in a profile image should be disclosed. The failure to disclose the image in the present case was regrettable and it should have been made available to the defence and jury. Nevertheless, the trial judge had directed the jury to give the applicant the benefit of any doubt about whether the image suggested a person over 18. He could not have obtained a more favourable direction had the image been disclosed. The guidance in BNE therefore created no arguable ground of appeal in the particular circumstances.
3. Sentence. The judge correctly used the Sentencing Council guideline for sexual activity with a child. The contemplated conduct involved penetrative sexual activity, placing the offence in category 1A with a five-year starting point. Category A culpability was justified by significant planning, the applicant’s lie about his age and the substantial age disparity. The decoy nature of the case and the fact that no sexual activity occurred justified a six-month reduction, consistent with the guidance referred to in R v Reed [2021] EWCA Crim 572; [2021] 1 WLR 529. A further six-month reduction reflected age and good character. The additional count was properly treated as an aggravating feature, with a concurrent sentence. No pre-sentence report was necessary because immediate lengthy custody was inevitable. The total sentence was just, proportionate and not manifestly excessive.

• Court of Appeal (Criminal Division): refused the renewed application for an extension of time and leave to appeal against conviction, and refused leave to appeal against sentence.
• Single judge of the Court of Appeal (Criminal Division): refused the applicant’s applications for an extension of time and leave to appeal.
• Crown Court at St Albans: the applicant was convicted on 10 February 2023 and sentenced on 9 June 2023 to four years’ imprisonment on count 2 and nine months concurrent on count 1.