Jones, R v [2007] EWCA Crim 1118

[2007] EWCA Crim 1118Case No 2006/03746/B2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE NIBLETT
T 2005 -7144
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 May 2007
Before
LORD JUSTICE THOMASMR JUSTICE PENRY-DAVEYMR JUSTICE WYN WILLIAMS
Between
ReginaRespondentIan Anthony JonesAppellant
Jeffrey Lamb for AppellantChristine Laing QC and Henrietta Paget for RespondentHearing Hearing date: 28 February 2007
JudgmentLord Justice Thomas :
[1]The appellant was indicted at Lewes Crown Court on a number of counts arising out of an investigation conducted by several police forces into a widespread network of child abuse. At the outset of the trial submissions were made on the appellant’s behalf in relation to a number of counts in the indictment, including Count 21 which charged the appellant with an attempt to commit an offence under s. 8 of the Sexual Offences Act 2003. It was contended by the appellant that proceedings on this count should be stayed as an abuse of process on a number of grounds, including entrapment by the police. Judge Niblett in a succinct and clear ruling given on 25 April 2006 rejected that submission and submissions on other counts. In consequence the appellant entered pleas of guilty on those counts in addition to counts to which he had pleaded earlier. He was sentenced on count 21 to a period of life imprisonment with a minimum period of 10 years less time spent on remand; he was sentenced on the other offences to determinate periods of between two and 12 years. He appeals against his conviction on count 21, by leave of the single judge, on the ground that the judge’s ruling was wrong in law.[2]Three other defendants were charged with him. The principal person involved in the network was Trevor Haddock; it was clear from the evidence which emerged that he had been abusing young children for 20 years; he also pleaded guilty to a number of offences. He was sentenced to life imprisonment with a minimum term of 12 years; there is no appeal in his case. The two other defendants, John Farmer and Derek Moody also pleaded guilty to similar offences; their appeals against sentence have been heard by us and dismissed. The factual background[3]The appellant’s application to stay the proceedings on Count 21 was made on the basis of facts which were not controverted for the purpose of the judge’s ruling or the appeal before us: i) From about 2000 the police received numerous reports of graffiti being written on the toilets of trains and stations in London, Hertfordshire and Sussex. These graffiti were in black marker pen and set out explicit messages seeking girls of ages between 8 and 13 for sex, offering payment and asking the girls or anyone to telephone or text a mobile telephone number. An example was:
“Girl 8-13 wanted for sex. Girls only; text [telephone number] Will pay you”
These reports became increasingly frequent in 2004. ii) On 3 March 2005, a journalist, Ms Ruth Lumley, when travelling on a train to Brighton, saw graffiti of this type on the toilet door. The message was in capital letters in black marker pen and as she could best recall stated:
“Wanted for sex Girls from 8-13. Text only [mobile number]”
. Ms Lumley telephoned the number twice. a) It was not answered, but within 30 minutes she received a text from the number she had rung:
“U male or female How old Whr u c my number? Txt bk only”.” b) She sent a text message back: “Female on train, 11”. c) Within minutes she received the reply, “U up 4 it R U a virgin or not Wht skol u go 2 Whr u live Tx bk. My name Dave. What urs What time train u c number? Tx bk”. iii) The appellant then proceeded to send a number of messages to Ms Lumley but he got no response. He also telephoned her, leaving a voicemail message inviting her to call him and another text message inviting her to send a naked picture of herself to him. iv) He persisted on the following day trying to persuade her to meet him, sending further texts suggesting a meeting after school, enquiring if she was prepared to perform oral sex and later on that day asking how her school day had been. v) Ms Lumley contacted the British Transport Police. They began an undercover operation on 18 March 2005 using an officer who was known as “Amy”. vi) There then followed an exchange of texts beginning on 18 March 2005. The messages began with Amy sending a text to the appellant in which she stated that she was Amy and had seen his message on a train, that she was on holidays and asking if he would really pay. He texted back within 90 minutes asking how old she was and where she was on holiday. The exchange of texts then continued: Amy: Hi am 12. Am near Brighton how old r u The appellant: I am 35 how long are u on hol 4. R u a virgin. Tx bk Amy: Cpl of weeks staying with Nan yes I am. Why? The Appellant: Can you be on Brighton pier Saturday at about 5.30 and can you wear a nice short skirt. You ever sucked a cock or wanked 1. vii) Further messages clarified arrangements for the meeting for Saturday 19 March 2005 but the appellant did not turn up. It is apparent from the messages that he was suspicious as to whether a trap was being laid for him. viii) A further exchange of messages took place between 20 and 29 March 2005 in which the appellant set out various sexual acts which he expected he would be able to perform upon Amy. ix) Amy and the appellant arranged to meet to meet on 29 March 2005 at Burger King in Brighton. On that occasion he did turn up and was arrested. x) He was searched and found in possession of a black marker similar to the type which had been used for writing the messages. A handwriting expert compared the writing in a number of the messages to that of the appellant and concluded that he probably wrote the graffiti. He was also found in possession of two mobile telephones, one of which had been used to send the text messages to Amy. xi) He was charged with a number of offences relating to other matters revealed as a result of the police investigation that followed. In relation to the graffiti on other trains and at stations, he was charged on counts 16-20 of the indictment with offences under s. 62 of the Sexual Offences Act 2003; Count 16 was withdrawn as the offence antedated the coming into force of the Act. The remainder, counts 17-20, were all specimen counts; by way of example count 17 of the indictment was in the following terms: “Statement of Offence Committing criminal damage with intent to commit a sexual offence, contrary to section 62 of the Sexual Offences Act 2003. Particulars of Offence Ian Jones on or before the 24th day of October 2004 criminally damaged property namely train toilets belonging to South Central Trains, with intent to commit a sexual offence, namely an offence within sections 5 to 8 of the Sexual Offences Act 2003.”
Particulars of Offence xii) S. 8 of the Act provides for a more serious offence:
“8(1) A person commits an offence if – (a) he intentionally causes or incites another person (B) to engage in an activity (b) the activity is sexual, and (c) (B) is under thirteen. (2) A person is guilty of an offence under this section, if the activity caused or incited involved – (a) penetration of B's anus or vagina, (b) penetration of B's mouth with a person's penis, (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or (d) penetration of a person's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for life. (3) Unless subsection (2) applies, a person guilty of an offence under this section is liable - (a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or to a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.” (a) he intentionally causes or incites another person (B) to engage in an activity (b) the activity is sexual, and (c) (B) is under thirteen. (2) A person is guilty of an offence under this section, if the activity caused or incited involved – (a) penetration of B's anus or vagina, (b) penetration of B's mouth with a person's penis, (c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or (d) penetration of a person's mouth with B's penis, is liable, on conviction on indictment, to imprisonment for life. (3) Unless subsection (2) applies, a person guilty of an offence under this section is liable - (a) on summary conviction, to imprisonment for a term not exceeding 6 [12] months or to a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 14 years.” xiii) Count 21 charged the attempt to commit the offence under s. 8 in the following terms: “Statement of Offence Attempting to cause or incite a child to engage in sexual activity, contrary to Section 1(1) of the Criminal Attempts Act 1981. Particulars of Offence Ian Jones, between the 17th day of March 2005 and the 30th day of March 2005, being a person aged 18 or over, attempted to intentionally cause or incite a child under the age of 13 years to engage in sexual activity involving penetration of the mouth, anus or vagina with a penis.”
Particulars of Offence xiv) It was the prosecution case, based upon the messages exchanged, that the appellant intended to meet with Amy and engage in penetrative sex with her. The defence application to stay

Particulars of Offence

[4]The appellant’s application before the judge for a stay was based on three submissions. i) This was a case of entrapment; the offence was brought about by the State. ii) Count 21 disclosed no offence known to the law of England and Wales. The appellant could not have had the requisite intention to commit the alleged attempt because he did not intend to incite any actual person under the age of 13 to engage in sexual activity. iii) The actions of the appellant were no more than merely preparatory to the commission of the offence.[5]As to the third submission made to the judge, the judge in his ruling held that the actions of the appellant were capable of being viewed as more than merely preparatory to the commission of the offence; it was not appropriate for a judge at that stage to withdraw the count from the jury for that reason. The judge made it clear that the issue could be revisited at the close of the prosecution case, if appropriate, and, if the case proceeded to the jury for determination, it would be for them to determine whether what the appellant had done in the particular instance amounted to more than mere preparation for the alleged offence. No appeal is brought against that part of the judge’s ruling.[6]The appeal before this court was brought on the basis of the first two submissions before the judge; a third was also advanced – namely that the appellant should have been charged with an attempt to commit an offence under s. 10(1) of the Sexual Offences Act 2003, a less serious offence than the offence under s.8.[7]We turn to consider each of the three submissions put forward by the appellant in turn. (1) Entrapment[8]The first and principal submission of the appellant was that he had been entrapped by the police into committing the offence with which he was charged in relation to the communications with Amy.[9]It was common ground that the relevant principles in relation to entrapment are to be derived from the judgments of the House of Lords in R v Loosely [2001] UKHL53 which considered the judgment of the European Court of Human Rights in Teixeira de Castro v Portugal (1998) 28 EH RR 101. In the leading judgment, Lord Nicholls of Birkenhead, sought to identify the limits to the type of police conduct which in any set of circumstances were acceptable. At paragraph 23 he said:
“On this a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime. I emphasise the word unexceptional. The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime. The police did no more than others could be expected to do. The police did not create crime artificially.”
Other factors were to be taken into account but, as he said at paragraphs 24 and 25:
“24. ..The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play. 25. Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute. Lord Steyn's formulation of a prosecution which would affront the public conscience is substantially to the same effect: see R v Latif[1996] 1 WLR 104, 112. So is Lord Bingham of Cornhill CJ's reference to conviction and punishment which would be deeply offensive to ordinary notions of fairness: see Nottingham City Council v Amin [2000] 1 WLR 1071, 1076. In applying these formulations the court has regard to all the circumstances of the case. The following comments may be made on some circumstances which are of particular relevance”
He then set out his comments on the considerations relating to the nature of the offence, the reason for the particular police operation and the nature and extent of police participation in the crime. Lord Hoffman considered a number of the circumstances which a court should examine in determining whether the involvement of the court in the conviction of the defendant who had been subjected to such behaviour would compromise the integrity of the judicial system. Those circumstances included the distinction between causing an offence and providing the opportunity for its committal, the distinction between obtaining evidence in relation to a crime which a person is about to commit or on which he is engaged and tempting a person into committing a crime and the degree of supervision over the officer involved. Lord Hutton approved the four factors set out in the dissenting judgement of McHugh J of the High Court of Australia in Ridgeway v The Queen (1995) CLR 19 at 92: “(1) Whether conduct of the law enforcement authorities induced the offence. (2) Whether, in proffering the inducement, the authorities had reasonable grounds for suspecting that the accused was likely to commit the particular offence or one that was similar to that offence or were acting in the course of a bona fide investigation of offences of a kind similar to that with which the accused has been charged. (3) Whether, prior to the inducement, the accused had the intention of committing the offence or a similar offence if an opportunity arose. (4) Whether the offence was induced as the result of persistent importunity, threats, deceit, offers of rewards or other inducements that would not ordinarily be associated with the commission of the offence or a similar offence.” “24. ..The investigatory technique of providing an opportunity to commit a crime touches upon other sensitive areas. Of its nature this technique is intrusive, to a greater or lesser degree, depending on the facts. It should not be applied in a random fashion, and used for wholesale 'virtue-testing', without good reason. The greater the degree of intrusiveness, the closer will the court scrutinise the reason for using it. On this, proportionality has a role to play.

The contentions

[10]The appellant’s contention that there had been entrapment in relation to the matters with which he was charged in relation to the communications with Amy was in summary: i) The prosecution case was that the appellant was guilty of an attempt because he committed the actus reus, inciting a child via a text, with a clear intention of inciting a child to engage in a sexual act, in the belief he was communicating with a child. If he had been communicating with a real child, then he would have committed the full offence. ii) It followed that, if the appellant had not believed he was communicating with a child, no offence would have been committed. On the way the prosecution put the case, the appellant was guilty of an attempt only because he believed the facts to be such that, if they had been as he believed, he would have been guilty of the full offence. iii) The appellant believed he was communicating with a real child only due to the deception practised upon him by the police. No offence would have been committed if it had not been for the appellant’s alleged belief that he was communicating with a real child. The offence was therefore created by the police. iv) The police could easily have ascertained who he was as they had the phone number for some considerable period of time; they had never communicated with him. v) There was no evidence that any child had ever been approached. The messages, although deeply offensive, were a fantasy or a joke in appalling taste. vi) It therefore followed that the conduct of the police fell into the unacceptable category.[11]The prosecution contended: i) The public interest required the identification of the author of the messages on the toilet doors and establishing the extent of his offending behaviour. ii) Although the appellant subsequently pleaded guilty to the four specimen counts, counts 17-20, of causing criminal damage with intent to commit a sexual offence relating to the writing of the messages, until his arrest there was no information or evidence to link him or any other person to the graffiti. It was therefore essential that the operation initiated by the police was carried out.[12]Before turning to consider the various factors set out in Loosely, it is first necessary to consider the scope of the offence under s.8 and in particular whether it was necessary for there to be an identified or identifiable child whom the offender incited.

Is it necessary to identify a specific child under s.8?

[13]The prosecution had charged the appellant specifically in relation to the messages sent to Amy rather than in relation to the graffiti on the toilet doors; they had done this as they wished to rely on communications which made it clear that the appellant was inciting penetrative sex and therefore potentially subject to life imprisonment under s. 8(2). The hearing before the judge was conducted on the basis that the offence as charged in count 21 had as the object of the appellant’s incitement a specific person. However, the prosecution contended that as a matter of principle, the offence could be committed without there being a specific child, though in this particular case the count in the indictment had been based on conduct in relation to an identified person. The prosecution had therefore charged the appellant with an attempt as it was impossible to commit the offence as charged on the basis of the conduct in relation to Amy, as Amy was over 13.[14]For the appellant it was contended that the offence under s.8 required incitement of an identified or identifiable child: i) This was because s.8 required the incitement of “another person (B)” and that that other person, B, be under 13. Although the words “another person” could mean “any person”, the section read as a whole meant that the term “another person” must refer to a specific child under 13 rather than any child under the age of 13, as the section was focussed on particular activity with a child under the age of 13. ii) That child could be identifiable by name or characteristic; for example, the person could be identifiable by being sent an e-mail, such as an e-mail addressed to each of a class of 12 year old girls. However, the offence could not be committed simply by graffiti of the type we have set out, as the graffiti were not addressed to an identifiable person.[15]It is, we think, helpful first to consider the decision in R v Most (1881) LR 7 QBD 244 on the scope of the offence of solicitation to murder under s.4 of the Offences against the Person Act 1861 (as amended). The offence is defined as “Whosoever shall solicit, encourage, persuade or endeavour to persuade, or shall propose to any person, to murder any other person, whether he be a subject of her Majesty or not, and whether he be within the Queen's dominions or not, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to imprisonment for life.” The editor and publisher of an anarchist German language newspaper published in London an article praising the assassination of the Russian Czar Alexander II and commending it as an example of tyrannicide to be followed. He was charged with offences of common law criminal libel and 10 offences under s.4 of soliciting or encouraging the murder of the sovereigns of Europe, including in separate counts the Kaiser and the Czar. Some counts in the indictment identified those whom the defendant had encouraged as a named person or a class of persons (the readers of the newspaper) and other counts as unnamed and unidentified persons. It was contended on behalf of the defendant that some personal communication encouraging murder was needed to a defined person. The Court for Crown Cases Reserved decided that the publication of the article could amount to an encouragement to murder, even though it was not addressed to a specific person. The court considered that the issue was one of the construction of the section of the statute. Lord Coleridge CJ expressed the principle in these terms at page 252:
“An endeavour to persuade or an encouragement is nonetheless an endeavour to persuade or an encouragement, because the person who so encourages or endeavours to persuade does not in the particular act of encouragement or persuasion personally address the number of people, the one or more persons, whom the address which contains the encouragement or the endeavour to persuade reaches. The argument has been well put that an orator who makes a speech to two thousand people, does not address it to any one individual amongst the two thousand; it is addressed to the number. It is endeavouring to persuade the whole number, or large portions of that number, and if a particular individual amongst that number by the orator is persuaded, or listens to it and is encouraged, it is plain that the words of this statute are complied with; because according to well known principles of law, the person who addresses those words to a number of persons must be taken to address them to the persons who, he knows, hears them, who he knows will understand them in that particular way, and do act upon them.”
[16]It seems to us that the principle is the same in relation to section 8. The gravemen of the offence is the incitement of children under the age of 13 to engage in sexual activity; it is not concerned with the effect on a particular child. The criminality at which the offence is directed is the incitement and it matters not that this is directed at a particular child or a very large group of children or whether the child or children can be identified or not.[17]There is no significance in our view that the term “another” is used as opposed to “any other”. As a matter of language the terms mean the same. It is clear that the term “another” is used in other enactments where it refers to a person who need not or cannot be identified, as for example in s.1(2) of the Protection of Children Act 1978 and s. 5(3) of the Misuse of Drugs Act 1971.[18]In our view therefore the offence under s.8 can be committed by a person who, with the requisite intention, makes a statement which in specific terms directly incites a child or children under the age of 13 to engage in sexual activity. It matters not that it is not possible to identify any specific or identifiable person to whom the statement is addressed. In this case, however, the prosecution chose to charge the appellant in relation to incitement of a particular person, as had been the case in some of the counts in Most, but it is nonetheless relevant to the argument on entrapment that the offence could have been charged without identifying a particular person.

Was there entrapment?

[19]We therefore turn to the principal question as to whether this was a case where the police had lured the appellant into attempting to commit the offence under s.8. We have considered the various formulations set out in R v Loosely and in particular whether the police conduct was so seriously improper as to bring the administration of justice into disrepute. It was accepted by the prosecution that any predisposition that the appellant may have shown to commit the offence was irrelevant on the basis of paragraph 68 of the opinion of Lord Hoffman in Loosely:
“Since the English doctrine assumes the defendant's guilt and is concerned with the standards of behaviour of the law enforcement officers, predisposition is irrelevant to whether a stay should be granted or not. The facts which lead the police to suspect that crimes are being committed and justify the use of an undercover officer or test purchaser may also point to the accused and show predisposition. But that is a coincidence. The fact that, for example, the accused has previous convictions is in English law neither necessary nor sufficient. Suspicion may attach to a person who has previously escaped conviction and, contrariwise, the fact that a person has been previously convicted may provide no ground for suspecting a current course of criminality which would justify the use of covert operations. Nor is the fact that a person is a drug addict and therefore likely to know a supplier a sufficient ground in itself for tempting him to move altogether outside his usual way of life and act as intermediary in the supply of a substantial quantity of drugs. Such persons may be particularly vulnerable to unfair pressures of this kind. It may be possible to justify them for the purpose of securing the prosecution and conviction of the supplier but not the prosecution and conviction of the intermediary.”
[20]We have therefore had no regard to the appellant’s predisposition, but we have considered the factors set in the following paragraphs in reaching our conclusion: (i). The nature of the offence[21]Causing or inciting children under the age of 13 to engage in sexual activity is by its nature a crime which a person will seek to commit in covert circumstances, using modern methods of communication such as the internet or mobile telephones. Using these methods, a person engaged in this activity can conceal his identity until such time as he has the young person in his presence and is in a position to commit the further offence of actually engaging in sexual activity. It is therefore a crime in which the secrecy by which those engaged in it proceed and the difficulty of detection are highly material circumstances which point to the need for the police to engage in covert activity.[22]As we have set out above, the essence of the criminality is the incitement; the crime does not need an identifiable person as the object of the incitement. It is in this context that the actions of the police primarily must be seen. We do not therefore accept the appellant’s contention put in several different ways that the police created an offence of this type. (ii). Instigation or providing the opportunity[23]It is clear, in our view, from the appellant’s conduct in relation to the journalist, that he was looking for opportunities to incite a child to penetrative sexual activity; the incitement in those communications went beyond what was stated in the graffiti and included a specific incitement to penetrative sexual activity. The police officer’s conduct in relation to the appellant followed on from those events. Far from instigating the offence, the police officer’s conduct provided only the opportunity for the appellant to attempt to commit a similar offence and provide the evidence necessary for a conviction. The police officer’s response to the invitation in the graffiti by pretending to be a child was a necessary pretence to that end; the pretence did not go beyond providing the necessary opportunity for the appellant to attempt to commit the offence by inciting a person whom he believed to be under the age of 13 to engage in penetrative sex. The police officer’s replies thereafter to the text messages were entirely acceptable in a covert operation of this kind, as otherwise the nature of her actions would have increased the suspicions of the appellant. It was the appellant who, after he had been told of the person’s age, continued and went on to incite penetrative sexual activity on more than one occasion on the days that followed. (iii). The reason for the particular police operation: gathering evidence[24]In this case, the police plainly had good grounds for believing that whosoever was writing the graffiti had committed an offence under s. 8 and, after the contact between the journalist and the writer of the graffiti, that the incitement to sexual activity would include incitement to penetrative sexual activity. It was thus only necessary for the police to identify the writer of the graffiti and to provide the opportunity, when the writer of the graffiti identified himself, for that person to make a further attempt to incite penetrative sexual activity.[25]The obtaining by the police of the details of the mobile telephone subscriber would not in themselves have been sufficient to identify the writer of the graffiti. The evidence was that this was a “pay as you go” number and anyone who was arrested in possession of the mobile phone could claim they had just found it and it might be difficult to disprove that. The prosecution therefore needed to show who was actually using the mobile telephone in question.[26]If the prosecution wished to rely on the more serious activity under s 8(2), it had to provide evidence of an attempt to incite penetrative sexual activity. An offence under s.8 was, in our view for the reasons we have given, complete without the need to identify a particular child, but the graffiti did not unequivocally incite penetrative sexual activity. Although the writer of the graffiti had shown he would attempt to incite penetrative sexual activity by the communications with the journalist, the police had no evidence at that stage against the appellant in relation to that attempt. The scope of the police officer’s involvement was thus essentially limited to providing an opportunity to attempt to commit that offence and to provide the evidence. As we explain more fully at paragraph 28, it would always have been open to the appellant to claim that the graffiti were pure fantasy (as was done on his behalf in this court as we have set out at paragraph 10.v) or directed at non penetrative sexual activity. It was therefore quite proper for them to seek such evidence by providing an opportunity. The evidential position was quite different to that in Most, as in that case there was in the court’s view no doubt that the defendant intended to encourage the murder of the Czar or Kaiser or other heads of state. It would have been wholly inappropriate for the police to have asked an actual child of the age in question to respond to the advertisements. It was, in our view, legitimate therefore for the police to use an adult within the police force pretending to be a child; as we have said the pretence did not go beyond that.[27]If contrary to our view, the offence did require that the incitement be directed at a specific child, and that therefore the essence of the offence was incitement in relation to a particular child, the appellant contended that it was clear the police had created the offence for the reasons set out at paragraph 10. However, even though on that analysis, the scope of police activity in relation to the particular offence could be seen as greater, it is our view that the police officer in fact did no more than give the appellant the opportunity to commit the offence. What the officer did was no more than to pretend to be a child of a particular age; it was the appellant who thereafter went on to incite penetrative sexual activity.[28]Furthermore, as we have mentioned, it was likely that the contention would be made (as it was in this court) that the messages on the toilet doors were a pure fantasy. It was necessary for the police to be able to show that they were not. This was also the position in respect of the offences under s.62 (the subject of counts 17-20); if a person was charged as a result of writing the graffiti with the offence of causing malicious damage with intent to commit a relevant sexual offence, it would always be open to that person to say that his message was a pure fantasy; as he did not have the relevant intent, he had done nothing more, given the value of the damage, than commit the summary offence of malicious damage. The prosecution would need to be in a position to prove that it was not a fantasy and he had an intention to incite sexual activity; it is difficult to see how they could obtain such evidence without engaging in the type of covert operation in which they became engaged in this case. (iv) The nature and extent of police participation in crime[29]The operation was properly authorised as part of an ongoing investigation into a paedophile ring and the placing of the sexually explicit graffiti on toilet doors. This is not a case where there was any ulterior motive other than to apprehend the appellant and to provide the necessary evidence.[30]There is a clear record of what the officer did. We have carefully considered the full range of the text messages and do not consider that in this case the police officer engaged in any forceful or persistent overtures or did anything that would bring about the commission of a crime by a person who would normally avoid a crime of that kind. This is not the case of a vulnerable defendant, but of a person who full well understood what was being said to him about the age of the person with whom he thought he was communicating and in that knowledge went on to incite penetrative sexual activity.[31]We do not therefore consider that this is a case where the police did anything that was not proportionate or in any way in contravention of Article 8 of the ECHR.

Conclusion

[32]The judge concluded that the offence was not instigated by the police; it was instigated by the appellant’s own actions. We agree with that observation and with his conclusion. We have endeavoured to set out in the preceding paragraphs all the relevant circumstances. Lord Hoffman referred at paragraph 55 of his judgment in Loosely to the test of whether the law enforcement officer behaved like an ordinary member of the public was more suited to regulatory offences than to offences in which members of the public were unlikely to be involved. However, we consider it is also relevant to take into account the actions of the journalist in answering the message as a further measure by which the acceptability of the conduct of the police can be judged. It is clear to us looking at all the circumstances that the police were not inciting or instigating a crime or luring the appellant into committing it. The officer was obtaining the necessary evidence by providing an opportunity for the appellant to commit an offence which he had attempted to commit in his conversations with the journalist in circumstances where no harm could come to a victim. That officer’s behaviour far from bringing the administration of justice into disrepute was necessary if the appellant was to be apprehended before he incited an actual child. This was not a case of abuse of state power which would deny the appellant a fair trial. The judge was right therefore in refusing a stay on that basis. (2). No offence known to the law[33]On behalf of the appellant it was submitted that he could not have had the requisite intention to commit the alleged attempt because he did not intend to incite any actual child under the age of 13 to engage in sexual activity. It was an essential element of the offence that the appellant intended to cause an actual child under the age of 13 to engage in sexual activity. There was no actual child in this case, only a fictional child; therefore the appellant could not have committed an attempt.[34]As we have already observed, the prosecution accepted that the way in which the count had been framed required proof that it was the intention of the appellant to cause or incite a specific person to engage in sexual activity, but that it was no more than an attempt as the person was not a child under 13. However, it was contended that the decision of the House of Lords in R v Shivpuri [1987] A.C.1 meant that on the basis of the facts not in dispute the defendant was guilty of the offence in question.[35]In Shivpuri the defendant was charged with importing heroin; a suitcase had been sent from India which the defendant believed contained heroin or cannabis. Analysis revealed that the substance was in fact harmless vegetable matter. The House held that the actus reus of the offence of attempt required an act which was more than merely preparatory to the commission of offence and which the defendant did with the intention of committing an offence, notwithstanding the commission of the actual offence was on the true facts impossible.[36]It is contended by the appellant that Shivpuri was distinguishable from the present case on the basis that the intention of the defendant in Shivpuri was real; he really intended to evade the prohibition on the importation of drugs; his mistake was merely as to the content of the packages. In the present case, it was submitted, the object of the appellant’s intention was fictional in that the person he allegedly sought to incite was an adult not a child under 13.[37]We cannot accept this is a proper basis on which to distinguish Shivpuri. In the present case it would have been open for the jury to conclude that the appellant had the objective and intention of inciting a particular child to engage in penetrative sexual activity. His intention was to evade the prohibition in the law, just as it was in Shivpuri. In a case where the police had substituted innocent material for unlawful drugs, it was now unarguable that a defendant who believed that they were drugs, could escape conviction for attempting to importing unlawful drugs. In this case the police had substituted an adult for a child; the appellant could not argue that by reason of that substitution, provided the other elements of the offence were made out, there was a defence in law to the charge.[38]In Shivpuri, Lord Hailsham set out at page 12 three questions. i) What was the intention of the appellant throughout? ii) Was the knowing evasion of the UK Customs in the manner envisaged in the appellant’s intent an offence to which Section 1 of the Act of 1981 applies? iii) Did the appellant do an act which was more than preparatory to the commission of the offence?[39]Answering three similar questions by reference to the offence under s. 8 of the Sexual Offences Act on the facts before the judge at the time he had to consider them, it was clear first that the appellant throughout intended to incite penetrative sexual activity with a child under 13. Secondly, it was clear that acting in the manner envisaged by the appellant’s intent would be an offence contrary to s. 8 of the Sexual Offences Act 2003. Thirdly, at the time the learned judge gave his ruling there was evidence that the appellant intended to do an act which was more than merely preparatory to the commission of the offence. In considering two similar questions posed by Lord Bridge of Harwich at page 19, it is clear first that the appellant intended to incite a specific child to engage in penetrative sexual activity and on the material before the judge, he did an act more than merely preparatory to the commission of the offence. He could not complete the offence and do an act that was more than merely preparatory because in the circumstances commission of the offence of incitement of the person was impossible.[40]Therefore we agree with the ruling of the learned judge that this ground for seeking to stay the indictment was ill-founded. (3). No factual basis for the offence charged[41]The final submission made on behalf of the appellant was that the appellant had been charged with a more serious offence than that which was warranted even on the prosecution’s own case. This was not a submission that was made to the trial judge, but can be summarised as follows: i) If the appellant’s intention was to incite a particular child to engage in sexual activity, then it was submitted that it was incidental that the age of the fictional child was under 13. It was the police officer, Amy, who had chosen the age of 12; if the police officer had chosen to tell appellant that the age of the fictional child was 13 or over then the appellant should have been charged under s. 10(1) of the Sexual Offences Act 2003. ii) It was only because the police had chosen the age of 12 that the appellant was charged under s. 8 of the Act with its more serious sanction. iii) There was no evidence that it mattered to the appellant that Amy was 12 rather than 13 and there was no evidence that the appellant would have behaved any differently had Amy claimed to be 13.[42]Ss. 8 and 10 create two similar offences, but at differing levels of seriousness with different penalties. The question, therefore, is whether the police behaved improperly in choosing an age of the younger group rather than the older group.[43]We do not consider that they did. We reject the submissions made on behalf of the appellant. It is self evident that sexual activity with a child is much more serious, if committed with a child below the age of puberty; for that reason, Parliament made incitement directed at a child below the age of 13 a much more serious offence. Furthermore, it is clear that age was not immaterial to the appellant. From the graffiti on the train, it was self evident that the appellant was directing his activities to females of the age of eight to 13. It was the appellant who asked Amy for her age. When Amy clearly gave the age of 12, the appellant believed from that time that he was inciting a child under 13 and proceeded to incite penetrative sexual activity in that belief. Conclusion[44]Each of the grounds put forward on behalf of the appellant fails and the appeal is dismissed.