R v BNE
In R v BNE [2023] EWCA Crim 1242, the Court of Appeal dealt with an important issue of disclosure in child sexual communications cases involving ‘decoys’. There had been correspondence on social media between the appellant and an undercover police officer who posed as a 14-year-old girl.
The appellant was convicted of attempting to incite a child to engage in sexual activity and attempted sexual communication with a child, contrary to sections 10 and 15A of the Sexual Offences Act 2003, respectively.
The appellant’s defence was that he believed he was communicating with an adult pretending to be 14 as part of a role-playing fantasy. He asserted that images he was sent that purported to depict the other party showed what he believed to be a woman aged around 19 to 23. The defence requested disclosure of the age of the person shown in the images. The prosecution refused disclosure and the trial judge ruled there was a public interest in not disclosing the information.
The sole ground of appeal related to the prosecution’s refusal to disclose information which, the appellant argued, was relevant to the reasonableness of his belief in the person’s age.
The Court of Appeal allowed the appeal and ordered a retrial on the basis that without knowing the true age of the person depicted in the photograph the jury could have been misled into making an incorrect assumption about that person’s age. The judgment includes a useful discussion of decoy operations in general, and provides guidance on disclosure issues in two situations where images may be used as part of a decoy profile: the first involving an unaltered photograph of a real person aged 16 or over, and the second involving an image which has been digitally created, altered or modified.
The court held that, in the first type of case, the true age of the person in the photograph should be disclosed and in the second type of case, ‘the prosecution’s duty of disclosure does not extend to disclosing the true age of any real person originally photographed or the nature and extent of the digital process which has been used to make the images’, but that the prosecution must inform the defence that the images have been ‘digitally manufactured, altered or modified’.
DPP v Cobban & Another
DPP v Cobban & Another [2024] EWHC 1908 (Admin) is thought to be the first case to come before the senior courts involving the application of section 127 of the Communications Act 2003 to private consensual messaging.
This was an appeal to the High Court by way of case stated following the convictions of two serving Metropolitan Police officers for multiple offences of improper use of a public electronic communications network contrary to section 127(1)(a). The appellants, along with five other officers including Wayne Couzens, were members of a private WhatsApp group, in which ‘racist, misogynistic, sexist, homophobic and disablist’ messages had been exchanged.
It was accepted that the messages in question were sent within a closed group and were never intended for any wider circulation or expected to be read by the types of persons or communities referred to negatively in them. Additionally, none of the recipients found the messages offensive.
The High Court cited R v Collins [2006] UKHL 40 as ‘a binding decision of general application’ as to the purpose and construction of section 127(1)(a), and rejected the appellants’ argument that the mens rea of the offence required them to have intended or to have been reckless as to whether the message was grossly offensive to those who might reasonably be expected to read it, holding that section 127(1) targeted the misuse of the public electronic communications system.
The court went on to find that whether an electronic message is ‘grossly offensive’ within section 127(1)(a) ‘is a question of fact to be answered objectively by reference to its contents and context, and not its actual effect’ (that is, whether the contents of the message ‘are liable to cause gross offence to those to whom it relates, or whether reasonable persons in our society would find it grossly offensive’). The appeals were duly dismissed.
R v Kyei
R v Kyei [2024] EWCA Crim 341 serves to highlight the draconian nature of the law in relation to offences in the Firearms Act 1968. The appellant pleaded guilty to a single offence of possessing ammunition without a firearm certificate, contrary to section 1(1)(b) of the 1968 act after the prospective trial judge had ruled that the appellant had no defence in law. He was sentenced to 10 months in prison and the court ordered the forfeiture and disposal of the ammunition.
The appellant’s argument before the jury would have been that the ammunition had been planted in his vehicle without his knowledge (although he was aware of a box which transpired to contain ammunition), and he was therefore not ‘in possession’ of the ammunition since he had no knowledge of it. The question of knowledge should have been left to the jury.
The single judge refused leave to appeal on the basis that the Court of Appeal had already interpreted the provisions of sections 1 and 5 of the Firearms Act 1968 as imposing strict liability, and it was settled law that where a prohibited item is in a container, a defendant could not raise a defence that he did not know what was in the container.
The appellant submitted it was well established that the prosecution must prove that a defendant had knowledge that an item in question item was in their possession. The Court of Appeal panel accepted this principle, but only as far as it applies to ‘planted’ articles, ‘of which an applicant literally has no opportunity to “take control” of the item by ejection or otherwise before its discovery’, which was not the case here.
The court found that the appellant had shown ‘deliberate ignorance’ in relation to the container and that the appellant had not advanced any new argument. There was no merit in the renewed application for leave to appeal and the conviction remained safe.
Edward Jones is a senior associate at Kingsley Napley, London
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