Case Update: R v BNE
15 December 2023
Author: Claire Mainwaring, first six pupil at 5KBW
Case Update R v BNE
Introduction
The recent case of R v BNE addressed the prosecutor’s disclosure duties in cases which involve police use of decoy profiles to identify and charge those seeking to commit sexual offences against children online.
Summary of Facts
The appellant met X, an undercover police officer posing as a teenage girl, on the social media platform “Chatiw”. X told the appellant that she was 14 years old, in Year 9 at school, and complained about having to wear her school uniform for another two years. The appellant truthfully told X that he was aged 44. The appellant and X exchanged sexualised messages online in which the appellant encouraged X to masturbate, explaining how to go about doing so, and in turn, indicated that he was also masturbating.
What is the Applicable Law?
The appellant was convicted of attempting to incite a child to engage in sexual activity, and attempted sexual communication with a child, contrary to section 10 and 15A of the Sexual Offences Act 2003 respectively.
Section 10 of the Sexual Offences Act 2003 provides:
A person aged 18 or over (A) commits an offence if –
He intentionally causes or incites another person (B) to engage in an activity,
The activity is sexual and
Either –
B is under 16 and A does not reasonably believe that B is 16 or over, or
B is under 13.
Section 15A of the Act states:
A person aged 18 or over (A) commits an offence if –
For the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
The communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and
B is under 16 and A does not reasonably believe that B is 16 or over.
At trial, the principal matter in issue was whether the appellant reasonably believed that X was aged 16 or over.
The lower court considered the case of R v Ishaqzai [2020] EWCA Crim 222 which addressed the question of reasonable belief in age in sexual offences involving children. In that case, the Court of Appeal stipulated that the prosecution could prove the mental element of attempted sexual offences involving children in two ways. Firstly, by persuading the jury that the appellant did not believe X to be 16 or over (a subjective test), and secondly by proving that, if the appellant did so believe, that belief was not reasonable (an objective test).
Summary of Submissions
At trial, it was the appellant’s case that he believed he was communicating with an adult who was pretending to be a 14-year-old in the context of a role-playing fantasy. As part of his defence, the appellant asserted that X’s profile picture and images sent by her depicted a woman aged around 19-23. Defence requested disclosure of the actual age of the person shown, arguing that if the person photographed was 16 or over, this would lend support to the appellant’s contention that he believed X was an adult engaging in role-play. Defence also asserted that it would be unfair to the appellant were the jury to be falsely led to believe that the person pictured was underage. The prosecution, however, refused to disclose the age of the person depicted and, following a Public Immunity Interest hearing, the trial judge ruled that although the actual age was prima facie disclosable, it should not be disclosed for reasons of public interest.
In the Court of Appeal, counsel for the appellant submitted that the true age of the person depicted was an important consideration for the jury in determining whether the appellant’s belief that X was 16 or over was reasonable.
The respondent opposed the appeal, submitting that the age of the person was irrelevant to the issues of the case. In the alternative, the respondent argued that if the matter was relevant, the judge had rightly ruled against disclosure for reasons of public interest. Finally, even if the two former arguments were rejected by the Court of Appeal, it was submitted that the conviction was safe due to other evidence against the appellant.
Court’s Decision
In his judgment, Lord Justice Holroyde provided that the direction customarily given to juries – that they should not speculate about any matter in relation to which they have heard no evidence – was insufficient in a case of this nature. This is because, without evidence to the contrary, the jury were likely to have assumed that the pictures used as part of the decoy profile were of a person aged under 16.
Lord Justice Holroyde went on to give guidance on disclosure in cases involving decoy profiles:
Firstly, where the image used is an unaltered photograph of a real person who was in fact aged 16 or over, the prosecutor should disclose the true age of that person to the defence.
Secondly, where the images are digitally created, altered or modified, the age of the person originally photographed is of no relevance, but defence should be informed that the image is manufactured, and it would generally be appropriate for this to be adduced in evidence before the jury.
In this case, Lord Justice Holroyde determined that the jury may well have assumed that the images were of a true likeness of a girl aged 14 and, on the evidence, this was not an assumption that they could have properly made. The Court of Appeal quashed the appeal and ordered a retrial.
Commentary
In an increasingly online world, where sexual offences against children continue to proliferate, police use of decoy profiles is accepted as a legitimate measure to prevent crime. R v BNE goes some way to elucidate the court’s position in relation to disclosure in cases of this kind, a step which will undoubtedly be welcomed by RASSO practitioners.
