Robin Edward Hoare v R [2023] EWCA Crim 1242

Judgment Approved by the court for handing down.Hoare v R[2023] EWCA Crim 1242Case No 202202875 B5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SHEFFIELD Recorder Gordon
T2021 7507
Venue Royal Courts of Justice Strand, London, WC2A 2LLDate 27/10/2023
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION LORD JUSTICE HOLROYDEMR JUSTICE GOSSMRS JUSTICE ELLENBOGEN
Between
ROBIN EDWARD HOAREAppellantTHE KINGRespondent
Siobhan Grey KC (assigned by the Registrar of Criminal Appeals) for appellant Andrew Johnson (instructed by CPS Appeals and Review Unit) for the respondentHearing Hearing date: 4 October 2023- - - - - - - - - - - - - - - - - - - - -UNREDACTED JUDGMENTIMPORTANT NOTE: this judgment was originally published in REDACTED form as“BNE” v THE KING. The retrial ordered by the court has now been concluded: the appellant was convicted of counts 1 and 2. Accordingly this UNREDACTED form may now be published. The reporting restrictions referred to below in red, and in paragraphs 1, 33 and 34 of the judgment, no longer apply.
[1]This is an appeal, by leave of the single judge, against convictions for offences of attempted sexual communication with a child (count 1) and attempting to incite achild to engage in sexual activity (count 2). The appellant, a man of previous goodcharacter, was subsequently sentenced to a total of 3 years 6 months’ imprisonment.There is no appeal against that sentence. Reporting restrictions apply to thisUNREDACTED judgment, as stated in paragraphs 33 and 34 below.[2]The charges arose out of correspondence on social media between the appellant and an undercover police officer using the name Alicia.[3]The correspondence began on a social media platform “Chatiw”, and quickly movedto the KiK platform. Alicia’s user name was “LittleMissLissy18” and her profiledescribed her as being 18. From the outset, however, Alicia told the appellant that shewas 14. Later, she told him that she was in Year 9 at school and complained abouthaving to continue to wear her school uniform for another two years. The appellant,whose user name was “RobSheffield43”, told Alicia, accurately, that he was aged 44.[4]They continued to exchange messages over a period of days. They sent images to oneanother. The exchanges became flirtatious and then sexualised (count 1). Theappellant encouraged Alicia to masturbate and told her how she should go aboutdoing so (count 2). She said in her messages that she was doing as he suggested, andhe replied to the effect that he was also masturbating. It is unnecessary, for presentpurposes, to go into further detail about the facts.[5]It is important to emphasise the precise nature of the appellant’s case, which was thathe had at all times believed he was communicating with an adult who was pretendingto be only 14 as part of a role-playing fantasy. He gave evidence to that effect. Herelied on the facts that Chatiw was aimed at adults and Alicia’s profile stated that shewas 18. He also relied on features of Alicia’s messages such as her use of language,punctuation and grammar, and her professed liking for certain musicians. He furtherrelied on Alicia’s profile picture, and the images provided by Alicia, all of which, heasserted, showed what he believed to be a woman aged around 19-23. He pointed tothe fact that in each of those images Alicia’s face was partially obscured, which heregarded as consistent with his belief that she was an adult engaged in role-playing.[6]The case was tried in the Crown Court at Sheffield before Mr Recorder Gordon (“thejudge”) and a jury. In advance of the trial Ms Grey KC, then as now representing theappellant, had been shown copies of the four images which Alicia had sent to theappellant. The prosecution’s intention, to which no objection was raised, was thatpaper copies of the images would be shown to the jury, but would be collected at the Judgment Approved by the court for handing down. Hoare v R 7. end of each court day so that they could be stored securely. The images had not beenuploaded to the Digital Case System.[7]The defence had also requested disclosure of the true age of the person shown in theimages. Their written request contended that if the person pictured was in fact ayoung adult, that would lend support to the appellant’s case and undermine theprosecution’s allegations. It further contended that it would be unfair for the jury tobe led to believe that the person depicted was under-age if in fact she was over the ageof consent. On instructions, counsel then representing the prosecution declined toprovide the information requested.[8]Submissions were made to the judge in the absence of the jury. Ms Grey reiteratedher request for disclosure, emphasising that she sought only the age of the persondepicted, not any further information about her.[9]The judge ruled that the age of the person shown was prima facie disclosable. He wasthen invited to, and did, conduct a public interest immunity (“PII”) hearing at whichprosecution counsel made submissions to him in the absence of the appellant or anydefence representative.[10]At the conclusion of that hearing, the judge gave a ruling in open court. He notedthat the appellant admitted that he had exchanged messages with Alicia. He correctlyidentified the principal issues on each count as being whether the appellant genuinelybelieved that he was exchanging messages with a person aged 16 or over and, if so,whether that belief was reasonable. He repeated his earlier ruling that the age of theperson depicted was prima facie disclosable, but held that, in the light of what he hadheard in chambers, there was a public interest in not disclosing that information.[11]The trial then proceeded and the appellant was, as we have said, convicted.[12]No objection was made at trial, and none is made now, to steps taken by the prosecution to maintain the anonymity of the undercover police officer, who gaveevidence under her pseudonym of Alicia, and to preserve the confidentiality ofinvestigative methods used. The sole ground of appeal challenges the refusal todisclose the true age of the person shown in the images which Alicia sent to theappellant. Ms Grey submits that, as the correspondence developed, it was Alicia whofirst made any reference to photographs. She further submits that Alicia’s age was atthe centre of both counts, and the photographs purporting to depict her were beforethe jury and played a central role in the trial for both prosecution and defence. MsGrey accepts that the true age of the person shown did not provide a complete answerto the charges, but she argues that it was an important consideration for the jury whenconsidering the reasonableness of the appellant’s belief. It was, she submits,potentially unfair to refuse disclosure of the age of the person depicted; and anysensitivity attaching to the images had already been compromised because the officerposing as Alicia had sent them to the appellant.[13]Ms Grey points out that the prosecution had failed to make the written application fora PII hearing which is required by rule 15.3 of the Criminal Procedure Rules. Shealso submits that the prosecution had the opportunity at the PII hearing to adducebefore the judge any evidence on which it wished to rely, and should therefore not bepermitted to adduce any further or different evidence before this court. Subject to Judgment Approved by the court for handing down. Hoare v R 15. those points, she invited this court to review the PII material to determine whether inthe circumstances of this case it was fair to allow the trial to continue withoutdisclosing the age of the person depicted.[14]On behalf of the respondent, Mr Johnson opposes the appeal. He submits that the ageof the person depicted was irrelevant to the issues which the jury had to decide, couldneither undermine the prosecution case nor assist the defence case, and thereforefailed the test for disclosure. Alternatively, if it was in principle a fact which wascapable of assisting the defence or undermining the prosecution, the judge hadcorrectly ruled that there was a public interest against disclosure. Finally, even ifthose arguments were rejected, Mr Johnson submits that the conviction is safebecause of the other evidence against the appellant. He invited this court to conduct aPII hearing, and to receive further evidence bearing on the public interest against anydisclosure.[15]We are grateful to counsel for their written and oral submissions, and for theirassistance in the efficient management of the hearings before this court. Weconducted an initial PII hearing, in the absence of the appellant and his counsel, inwhich we heard de bene esse evidence from two witnesses in addition to that whichhad been given to the judge. We thereafter heard the submissions of the parties inopen court.[16]It is common ground that the principles to be followed in considering the PII application are those stated by the House of Lords in R v H & C [2004] 2 AC 134.[17]So far as is material for present purposes, the provisions of the Sexual Offences Act2003 creating the offences which the appellant was found to have attempted tocommit state as follows:
“10 Causing or inciting a child to engage in sexual activity (1) A person aged 18 or over (A) 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) either – (i) B is under 16 and A does not reasonably believe that B is 16 or over, or (ii) B is under 13. 15A Sexual communication with a child (1) A person aged 18 or over (A) commits an offence if – (a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B), Judgment Approved by the court for handing down. Hoare v R (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 (c). B is under 16 and A does not reasonably believe that B is 16 or over.”
[18]Those provisions are aimed at the protection of children aged under 16. The conductwhich they prohibit frequently takes place over social media. The use by undercoverpolice officers of what may be referred to as decoy profiles, set up on social media toenable the officers to pose as children under 16 and thereby to identify offenders whotrawl the internet looking for opportunities to commit sexual offences againstchildren, is a legitimate measure taken to prevent crime and is in the public interest.It inevitably involves the undercover officer conducting the correspondence in amanner intended to sustain the decoy profile. It follows that an officer pretending tobe an adolescent would not use images portraying a mature adult. We have no doubtthat there is in principle a strong public interest in maintaining the anonymity ofundercover police officers who play the decoy roles, and in maintaining theconfidentiality of the investigative techniques which they use.[19]The appellant admitted that he had exchanged messages with Alicia in the terms readby the jury, and there could be no doubt that some of their content was sexual and thatsome of them incited Alicia to engage in sexual activity. On both counts,accordingly, the principal issue was whether the jury were sure either that theappellant did not genuinely believe that Alicia was 16 or over, or that any genuinebelief he may have held was not reasonable. That issue required the jury to assesswhat the appellant believed or may have believed in the light of the circumstancesknown to him.[20]As was said by the court in R v Ishaqzai [2020] EWCA Crim 222 (a judgmentconcerned with comparable provisions in section 9 of the 2003 Act), the prosecutioncould prove the mental element of the attempted offences in two ways. First, bymaking the jury sure that the appellant did not believe Alicia to be 16 or over; andsecondly by proving that, even if the appellant did believe her to be 16 or over, ormay have done so, any such belief was not reasonable. The first approach involvesthe jury making a determination as to the appellant’s subjective belief. The secondinvolves the jury making an assessment as to whether, in all the relevantcircumstances of the case, any such belief was not reasonable. In that latter regard,we agree with what is said by the learned authors of Rook and Ward on SexualOffences at paragraph 4.63 of the current, 6th, edition:
“… the jury’s task is not to consider whether the hypothetical reasonable man would have believed B to be 16 or over, but whether A may actually have believed that and, if so, whether the belief was reasonable. If they find that A may have believed B to be 16 or over, then in determining whether the belief was reasonable the jury should have regard to all the circumstances, including what B told A about herself and B’s appearance at the relevant time.”

Judgment Approved by the court for handing down. Hoare v R

[21]The circumstances known to the appellant were the nature and content of themessages sent by Alicia, the profile picture which she used, and the images sent tohim by Alicia. They did not include any further knowledge of the provenance ofthose images. That, of course, will usually be the case in decoy operations of thiskind. To encapsulate the rival contentions, Ms Grey submits that the true age of theperson shown in the images, although not known to the appellant, was a relevantcircumstance because a jury could properly take it into account in deciding what theappellant believed, or at least in deciding whether any belief held by the appellant wasreasonable. Mr Johnson submits that the jury were required to focus only on whatwas actually received by and known to the appellant, and that the true age of theperson depicted was an extraneous factor which could not have affected theappellant’s mind and was therefore irrelevant to the jury’s decisions.[22]We begin by reflecting on decoy operations of this kind generally, before returning to this particular case.[23]In any case involving the use of a decoy profile, it will be understood by the jury fromthe outset that the messages were in fact sent by an adult police officer playing thedecoy role. It will also be clear to the jury, from their own observations of thewitness, that the images sent to the defendant, in support of the decoy profile, are notcontemporaneous true likenesses of the adult police officer who sent them.[24]We accept Ms Grey’s submission that a jury, shown images such as were used in thiscase and given no information about their provenance, may well assume that theimages are accurate photographs and true likenesses of a real person of the age statedin the decoy profile, or at any rate a real person aged under 16. We do not think thatthe direction customarily given to juries, not to speculate about any matter in respectof which they have heard no evidence, is sufficient to avoid the possibility of such anassumption being made: given that the purpose of showing the images to thedefendant was to foster the illusion that he was corresponding with an underage child,jurors may think that they are drawing a legitimate inference about the subject of theimagery, rather than engaging in impermissible speculation. We also accept that adefendant charged with offences of this nature may be unfairly prejudiced if such anassumption is made when it is factually incorrect. When a defendant’s belief as to theage of his correspondent is in issue, how is the risk of such prejudice to be avoided, ifno information is provided about the provenance and subject of the imagery? In ourview, it is necessary to distinguish between two different situations which might inprinciple arise.[25]First, if the relevant image is an unaltered photograph of a real person who was in factaged 16 or over when photographed, it seems to us that the true age of the person, atthe time when the photograph was taken, should be disclosed to the defence. In suchcircumstances, we accept Ms Grey’s submission that the true age of the persondepicted is a fact capable of undermining the prosecution case, and/or of assisting thedefence case. That is because the jury can properly take the fact, that the image is atrue likeness and an accurate portrayal of a real person aged 16 or over, into accountwhen assessing whether a defendant may have believed that he was correspondingwith someone aged 16 or over, and/or whether any such belief was reasonable.Moreover, the jury must not be misled by being shown images in circumstanceswhich may give rise to an incorrect assumption about the age of the person depicted.True it is, as Mr Johnson submits, that a defendant who does not know the true age of Judgment Approved by the court for handing down. Hoare v R 30. the person depicted cannot himself be influenced by that fact; but it does not followthat the fact is irrelevant to the issues which the jury has to decide. If, for example,the decoy profile was that of a 14 year old, and the images used were unalteredphotographs of a real person taken when she was 18, a jury could properly take thatfact into account when deciding whether the defendant may have believed her to be16 or over and/or when deciding whether his belief was reasonable.[26]It follows that, in this first situation, the prosecution should disclose the actual age ofthe person shown at the time when the photograph was taken, and not merely the factthat the person was aged 16 or over. It will no doubt often be convenient for thatinformation to be adduced in evidence before the jury in the form of an admission offact.[27]Secondly, what if images have been digitally created, altered or modified in someway, in order to produce images consistent with the decoy profile? In suchcircumstances, whatever the nature and extent of the process used, its purpose andeffect was to create an entirely artificial image or to alter the appearance of the personinitially photographed so that it ceases to be a true likeness. In this second situation,the true age and original appearance of any person originally photographed can in ourview be of no relevance. The jury are not to be diverted into an examination of theskill with which the digital manufacture of the image has been carried out. Theirfocus must be on the images seen by the defendant, not on different images which hedid not see.[28]It follows that, in this second situation, the prosecution’s duty of disclosure does notextend to disclosing the true age of any real person originally photographed or thenature and extent of the digital process which has been used to make the images. It ishowever necessary that the defence should be informed of the fact that the imageshave been digitally manufactured, altered or modified so as to make, for the purposeof the decoy profile, images which are not a true likeness of any real person who mayoriginally have been photographed. Subject of course to the precise issues in aparticular case, it will generally be appropriate for that limited statement of fact to beadduced in evidence before the jury – again, it will no doubt usually be convenient todo so by way of an admission of fact. It will be sufficient for the statement of fact tobe in the precise terms which we have used, without distinguishing betweenmanufacture, alteration or modification. We are satisfied that, to that very limitedextent, it will be necessary in the interests of justice to disclose one aspect of theinvestigative techniques which must otherwise remain confidential.[29]Subject again to the precise issues in a particular case, it follows from what we havesaid that, in a case where there has been no disclosure of the true age of the personshown at the time when the photograph was taken, it will usually be necessary for thejury to hear evidence of the fact that the images were manufactured, altered ormodified so as to fit the decoy profile. Where that fact is in evidence, the trial judgeshould direct the jury that there is no evidence about the true age of any person shownin the images; that there is no evidence about what was done to manufacture, alter ormodify them; that they must not speculate about those matters, because they are notrelevant to the jury’s verdicts; and that they must concentrate on the evidence of thematerial – the messages and the images – which the defendant received.

Judgment Approved by the court for handing down. Hoare v R

[30]Returning to the present case, we repeat that the appellant’s defence was a belief thathe was corresponding with an adult who was playing a role. He had raised thatdefence in his defence case statement even before the images which were before thejury had been disclosed; and as part of that defence he gave evidence of a belief thatthe images showed an adult who was deliberately obscuring part of her face. Wesympathise with the judge, who was faced at trial with a difficult issue which was notargued as fully, or in the same way, as it has been before this court. His written andoral directions to the jury clearly reflected a good deal of careful work on his part.They included a general direction to the jury not to speculate. However, because ofthe way the argument had developed before him and the evidence he had heard inchambers, he did not address the issue of disclosure in the way which we have foundto be appropriate. This was neither a case which was identified by the prosecution asfalling into the first of the two categories we have mentioned, nor a case in which theprosecution provided the information which is necessary in the second of thosecategories. In the result, we accept the submission that the appellant was unfairlyprejudiced because the jury may well have assumed that the images were truelikenesses of a real girl aged 14, or at least aged under 16, at the time when she wasphotographed. On the evidence before the jury, that was not an assumption whichthey could properly have made.[31]That is sufficient to compel the conclusion that the convictions are unsafe and must bequashed. We reach that conclusion on the basis of the approach which we have heldto be applicable to cases of this nature generally, and without needing to reflectfurther on any specific features of this particular case. For that reason, we do notthink it necessary to give any separate closed ruling in relation to the PII hearing.[32]This appeal will accordingly be allowed, and both convictions quashed. Havingconsidered written submissions from counsel, for which we are grateful, we aresatisfied that the interests of justice require that the appellant be retried on bothcharges.[33]We are further satisfied that publication of this judgment in UNREDACTED formwould give rise to a serious risk to the administration of justice in the retrialproceedings. We therefore order, pursuant to section 4(2) of the Contempt of CourtAct 1981, that publication of this judgment in UNREDACTED form must bepostponed until after the conclusion of the retrial. In view of the importance of theprinciples to which we have referred, which will be of application in other cases, wehave prepared a REDACTED version of this judgment, which may be publishedwithout delay. The REDACTED judgment itself is not subject to any reportingrestrictions; but pursuant to section 11 of the Contempt of Court Act 1981 we orderthat no additional matter may be included in or with any publication of theREDACTED judgment if it is likely to lead members of the public to identify any ofthe persons, names or other details which have been redacted.[34]For those reasons, we make the following orders: i) The appeal is allowed and the convictions on counts 1 and 2 quashed. ii) The appellant must, as soon as practicable, be retried in the Crown Court atSheffield, before a judge to be allocated by the Resident Judge of that court, onboth charges. Judgment Approved by the court for handing down. Hoare v R iii). A draft of the fresh indictment must be served by the respondent on the Crown Court officer no more than 28 days after this order. iv). The appellant must be rearraigned on the fresh indictment within 2 months after this order. v). There being no application for bail, the appellant will be remanded in custodypending his retrial. Any application for bail which may be made in the futureshall be made to the Crown Court at Sheffield. vi). Pursuant to section 4(2) of the Contempt of Court Act 1981, this judgment inits UNREDACTED form must not be published until after the conclusion ofthe retrial. The respondent must notify the Criminal Appeal Office as soon asthe retrial has been concluded, so that this order may be withdrawn. vii). The REDACTED version of this judgment, as approved by the court, may bepublished. The REDACTED judgment itself is not subject to any reportingrestrictions; but, pursuant to section 11 of the Contempt of Court Act 1981, noadditional matter may be included in or with any publication of theREDACTED judgment if it is likely to lead members of the public to identifyany of the persons, names or other details which have been redacted.

Cited in 1 later judgment