R v Ricky Malcolm Sharman [2023] EWCA Crim 607

NOTE – THE TRIAL IN THIS CASE HAS NOW TAKEN PLACE. ACCORDINGLY, THIS JUDGMENT IS NO LONGER SUBJECT TO REPORTING RESTRICTIONS PURSUANT TO S.71 CRIMINAL JUSTICE ACT 2003. IT REMAINS THE RESPONSIBILITY OF ANY PERSON INTENDING TO SHARE THIS JUDGMENT TO OBSERVE OTHER RESTRICTIONS THAT APPLY, IN PARTICULAR THOSE RESTRICTIONS THAT PROHIBIT THE IDENTIFICATION OF INDIVIDUALS REFERRED TO BY INITIALS IN THE JUDGMENT This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.Case No 202300831/B4[2023] EWCA Crim 607
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 23 March 2023
Strand
London
WC2A 2LL
Before
THE VICE-PRESIDENT OF THE COURT OF APPEAL, CRIMINAL DIVISION(LORD JUSTICE HOLROYDE)MR JUSTICE KERRHIS HONOUR JUDGE TIMOTHY SPENCER KC(Sitting as a Judge of the CACD)PROSECUTION APPLICATION FOR LEAVE TO APPEAL AGAINST A TERMINATING RULING UNDER S.58 CRIMINAL JUSTICE ACT 2003
Between
REXCrownv
Between
RICKY MALCOLM SHARMAN__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR M ROWCLIFFE appeared for Applicant.MR N WELLS appeared for Respondent._________J U D G M E N T(Approved)
[1]THE VICE-PRESIDENT: This is a prosecution appeal under section 58 of the Criminal Justice Act 2003 against a ruling made by a trial judge in relation to a trial on indictment.[2]It has been necessary for the purposes of this appeal to substitute letters for the names of certain persons which are relevant to our judgment.[3]The respondent, Sharman, is charged on an indictment containing three counts. Count 1, attempting to engage in sexual communication with a child, and count 2, attempting to cause or incite a child to engage in sexual activity involving penetration, relate to online communications in September 2022 between Sharman and "TL". Count 3, attempting to arrange or facilitate the commission of a child sex offence, relates to online communications in July and August 2022 between Sharman and "BC". In these communications TL purported to be a 14-year-old girl and BC purported to be a 13-year-old girl. Neither TL nor BC is a real child. They were personas adopted by members of two organisations which seek to detect and expose online child abuse.[4]In addition to those child personas, the organisations adopt adult personas. In this case it is relevant to note that an adult persona "LJ" was adopted as part of an attempt to ascertain the home address of Sharman.[5]It is unnecessary for present purposes to go into any detail about the allegations. It suffices to say that the prosecution have adduced evidence of messages sent by Sharman which, on their face, are capable of amounting to the actus reus of attempts to commit each of the offences charged.[6]On 30 September 2022, Sharman was sent for trial on the charges relating to TL. On 8 December 2022 he was sent for trial on the charge relating to BC. He entered not guilty pleas when arraigned in the Crown Court. On 15 February 2023 he filed a Defence Statement, in which he asserted that the websites concerned were restricted to persons over the age of 18, and that he had joined them with a view to meeting adults. He stated that he believed the messages posted by TL and BC to be untrue and had no intention to commit the alleged or any sexual offences.[7]The trial began on 28 February 2023. The prosecution relied on evidence given by the "decoy operators", that is to say the adults who created the fake online profiles of TL, BC and LJ, and exchanged messages with Sharman using those personas. Those witnesses had taken, and exhibited, screenshots of their exchanges with Sharman. No objection was raised to the admissibility of that evidence. The screenshots were shown to the jury in the course of prosecution counsel's opening speech.[8]The statements of the decoy operators were effectively incorporated into Agreed Facts. Those Agreed Facts formed part of the evidence adduced by the prosecution. One Agreed Fact was to the effect that a 73-page documentary exhibit, produced by the decoy operator who had posed as TL, contained "the complete logs of the conversations which took place" between Sharman and TL. Another Agreed Fact was that a shorter documentary exhibit, produced by the decoy operator who had posed as BC, contained "logs of the conversation" between Sharman and BC.[9]The trial continued on 1 and 2 March 2023. The officer in the case gave evidence and, through her, the contents of the various messages captured in screenshots were formally adduced in evidence. That officer was recalled on the morning of 2 March to face further cross-examination, in which it was suggested that some messages might be missing from the exhibits provided to the jury.[10]Towards the end of that morning the judge expressed concern about the integrity of the logs of the online exchanges of messages. Submissions were made by both counsel after the midday adjournment. On the defendant's behalf the submissions included a submission of no case to answer. The submissions were brief and, within little more than 15 minutes of the court resuming for the afternoon sitting, the judge gave the ruling which is the subject of this appeal.[11]The judge indicated that he was concerned as to whether he should exercise his discretion under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”), either as requested by the defence or of his own motion, to exclude the evidence of the screenshots of the messages. He noted that the decoy operators had downloaded the screenshots to a Google drive and stored them there. The Google drive had then been provided to the police for the purposes of the prosecution. The devices used by the operators when engaging in online communications had not been investigated independently. The judge further noted that a phone, which had been seized from Sharman, had not been examined. As we understand it, the position was that the phone had been sent by the police to an outside laboratory for examination and analysis. By an unfortunate coincidence of timing, an unrelated difficulty had arisen at the laboratory which resulted in all its work being abruptly stopped so that an audit could be carried out. By the start of the trial the phone had been returned to the police but had not thus far been analysed. The defence were aware of that position.

The judge in his ruling continued as follows:

"I have had the advantage of trying a whole number of cases where the digital downloads have been incepted and the fake profiles have been operated by police officers working under strict codes of conduct, and part of the evidence in those cases is the availability for a full download. The officers know when and where things were placed and the whole conversation can be scrutinised before it is served as prosecution evidence. Here, no such testing is possible and whilst I accept from the prosecution, for the purposes of this application, that there are no messages missing, what is impossible for anyone to do is to put the chats into context. For example, there is nothing to say that the defendant could not have been chatting to another person, not on this site but anywhere else, saying, 'You won't believe what I've just done. I've just been talking to a hairy police officer who is pretending to be a girl called [TL]. Once again I've found another fake.'"
[13]The judge added that some of Sharman's communications showed that he was mindful of the fact that there were people chatting on such sites who are not who they say they are. The judge a little later in his ruling then said:
"That does not mean that the prosecution must fail because I am looking at this case as it is at half-time, but I am looking at this moment as to whether I should exclude the evidence under Section 78 for the reasons I have adumbrated. And because it is possible that there were other chats on the defendant's own phone at the time of the chats with [TL] and [BC] that may exculpate him, equally there is little scrutiny of the people who were scrutinising internet traffic, the scrutineers or vigilantes, however they like to be referred to, as to how far they go in their suggestibility, how quickly they move to sexual matters et cetera."
[14]The judge made plain that he did not regard it as a case of entrapment. He also stated that he was not acceding to the submission of no case to answerbecause he did not have to in the light of his ruling as to the admission of evidence. He expressed that ruling in the following terms:
"So, for two reasons, I am not prepared to admit the evidence retrospectively of these sets of screen shots. The first is lack of scrutiny and the lack of ability to see when they started and stopped, what other activity was going on both at the defendant's end and at the scrutineers' end. That is reason 1. Reason 2 is that if I applied the same test as I would to ... defence evidence, I certainly would not be allowing it to go in unchecked and I would anticipate that any reasonable prosecutor... would no doubt object strongly to a defendant saying, 'Here's some screen shots. This is what I said happened and you can rely on me to prove that it's accurate.' So, for those reasons, I am declining to allow the Crown to rely on that material. [Prosecuting counsel] has indicated helpfully that there is nothing else other than that, and so, as a result I will be directing the jury to reach not-guilty verdicts."
[15]The prosecution have complied with all the procedural steps required for an appeal against that ruling, including giving what is referred to as the "acquittal undertaking". The jury were discharged from returning verdicts. So it is that the appeal comes before this Court.[16]We should add that Sharman has recently filed a Supplemental Defence Statement in which he asserts, contrary to the Agreed Fact which we have mentioned, that not all messages exchanged between him and TL were included in the screenshots taken by the witness concerned. He also asserts that he had also spoken to other decoys and "did not believe that they were real".[17]By sections 66 and 67 of the Criminal

Justice Act 2003, so far as material for present purposes:

"66 Determination of appeal by Court of Appeal (1) On an appeal under section 62, the Court of Appeal may confirm, reverse or vary any ruling to which the appeal relates. (2) In addition, the Court of Appeal must, in respect of the offence or each offence which is the subject of the appeal, do any of the following— (a) order that proceedings for that offence be resumed in the Crown Court (b) order that a fresh trial may take place in the Crown Court for that offence (c) order that the defendant in relation to that offence be acquitted of that offence... 67 Reversal of rulings The Court of Appeal may not reverse a ruling on an appeal under this Part unless it is satisfied— (d) that the ruling was wrong in law (e) that the ruling involved an error of law or principle, or (f) that the ruling was a ruling that it was not reasonable for the judge to have made."
[18]Prosecuting counsel puts forward two grounds of appeal. He submits first, that the judge fell into error of law, and secondly, that the ruling was unreasonable in all the circumstances.[19]By section 78 of PACE, so far as material:
"78 Exclusion of unfair evidence In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it..."
[20]We should also quote part of section 82 of PACE, which deals with interpretation:
"(3) Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion."
[21]Relying on R v Harwood [1989] Crim LR 285, prosecution counsel submits that the words of PACE section 78 relate to evidence upon which the Crown proposes to rely, and accordingly did not give the judge any power to exclude retrospectively evidence which had already been adduced before the jury.[22]In his second ground of appeal, prosecuting counsel suggests that the judge appears to have made his ruling on two bases: that there might have been exculpatory material on Sharman's phone, and that there had been a lack of scrutiny in relation to the timing of the messages and as to how far the decoy operators went in suggesting sexual activity. Counsel submits that the first of those matters was only raised for the first time in the judge's ruling, that Sharman's telephone data had not been downloaded because of circumstances which were outside the Crown's control and that there was no basis for the judge to speculate about what examination of the data might have revealed.[23]As to the second matter, he submits that the exchanges of messages could reliably be assessed by the jury because the overall date range was or would be in evidence, the points at which one string ended and another began were obvious when reading them, the timing of some messages was to an extent indicated by the messages themselves and, in any event, Sharman did not appear to challenge the content of the exhibited messages.[24]Prosecution counsel adds by way of alternative submission that, if the judge took the view that the absence of a complete download of Sharman's phone caused identifiable prejudice to the defence case, then a number of other courses were available, such as allowing an adjournment for the analysis of the phone to be made, and it was not reasonable for the judge to take the drastic step of excluding the evidence and bringing the prosecution to an end.[25]Counsel for Sharman opposes these grounds. As to ground 1, he submits that section 78 of PACE can be used "in a wide variety of circumstances" and that the decision in Harwood did not prevent its use here. Alternatively, the judge had a common law power, preserved by section 82(3) of PACE, to exclude the evidence. He submits that the judge had concluded that Sharman could not have a fair trial on the evidence of the messaging and that the jury could not be asked simply to disregard it.[26]As to ground 2, it is submitted that the ruling was not unreasonable. Counsel suggests that the communications in the names of TL and BC were implausible for a number of reasons which he developed in oral submissions, and submits that it was therefore important for Sharman's defence to be investigated. He relies on some of the messages which Sharman sent to LJ as supporting the view that Sharman was sceptical about the bona fides of many persons posting messages on such websites, which counsel suggests supports the view that a full download was needed.[27]We have summarised the submissions on each side very briefly, but we have reflected on all the points made.[28]The only case law referred to by counsel in relation to the first ground of appeal is the note of the case of Harwood in the Criminal Law Review. That note focuses on what appears to have been the principal issue in the case as to entrapment. It includes a note that no submission that certain evidence should be excluded was made until after that evidence had been given and continues:
"It was doubtful whether section 78 could in any circumstances entitle the Judge to withdraw evidence or direct a jury to acquit when the Court had not been invited to refuse to allow the evidence to be given. It was acknowledged that there might be an argument that, since section 82(3) of the 1984 Act preserved the power of the Court to exclude evidence, section 78 might be dealing with something which enlarged the discretion that would previously have existed at common law. Such discretion related to cases in which the prejudicial effect of evidence outweighed its probative value, and to the admissibility of confessions. Whether or not section 78 had enlarged the Judge's discretion beyond those two matters, having regard to the terms of section 82(3), and to that relating to confessions, it was not appropriate to express an opinion in the present case."
[29]We have not been provided with a transcript of the judgment in Harwood, and it seems clear that what was said by the court in relation to the ambit of section 78 was obiter dicta. We note however that in the latter case of R v Sat-Bhambra (1989) 88 Cr App R 55, the principal issue was as to whether evidence of a confession should have been excluded under section 76 of PACE, which also refers to evidence which the prosecution "proposes to give in evidence". The court in that case said:
"The words of section 76 are crucial: 'proposes to give evidence' and 'shall not allow the confession to be given' are not, in our judgment, appropriate to describe something which has happened in the past. They are directed solely to the situation before the statement goes before the jury. Once the judge has ruled that it should do so, section 76 (and section 78 for the same reasons) ceases to have effect. The judge, whatever his change of mind may be, is no longer acting under section 76 as the appellant contends."
[30]Neither of those cases provides authority directly on point, and we are conscious that we have had only limited argument about the scope of section 78. It seems to us, however, that in view of the plain wording of section 78, it is indeed doubtful whether that section could ever be relied upon to exclude evidence which has already been given. We recognise that circumstances may well arise where evidence has been adduced, whether or not following a challenge to its admission, and subsequent late evidence or information is received which would have formed the basis for a successful challenge under section 78 if it had been available earlier in the proceedings. In such circumstances the remedy, we think, would lie in a direction to the jury where practicable, or in the calling of further evidence to set the now challenged evidence in its proper context, or in an application to discharge the jury if necessary.[31]We do not need to explore the precise boundaries of the scope of section 78 or to reflect upon borderline cases, and we do not do so, because in the circumstances of this case the position is, in our view, clear. The admissibility of the screenshots which showed the messaging had not been challenged. There has been no application to exclude it on the basis that, although admissible, it gave rise to unfair prejudice to the defence case. There had been no application to adjourn the trial because it was thought essential to obtain a full download of Sharman's phone. The evidence was before the jury and so too were Agreed Facts inconsistent with the case now advanced on behalf of Sharman. In those circumstances, it was clearly too late for section 78 to be used to exclude the evidence already adduced, whether on an application by the defence or of the judge's own motion.[32]We are not persuaded by the alternative submission advanced on behalf of Sharman. The judge proceeded unequivocally in reliance on section 78. He did not base his decision on the common law power preserved by section 82(3) and heard no submissions in that regard. It is not possible for Sharman now to argue that the judge would have reached the same conclusion if, hypothetically, he had received different submissions. The first ground of appeal therefore succeeds.[33]We turn to consider the second ground. We agree with counsel for the prosecution that the judge put forward the two bases for his ruling which counsel has identified. As to the first of those points, it is important to bear in mind that the judge accepted, for the purposes of this argument, that the messaging with TL and BC was complete. With all respect to the judge, we cannot accept that he was nonetheless entitled to exclude the evidence on the ground that the prosecution was unable to say what other online or social media exchanges Sharman may have had around the same time. The prosecution would be unable to do so in any case in which the accused's phone had not been seized, or his call data could not be recovered or analysed, or another phone, which he was using around the same time, had not been seized. Such an inability would not necessarily give rise to unfair prejudice, such that admissible evidence should be excluded, and it does not do so here. As things stood at the time of the judge's ruling, it was purely speculative to suggest that there may have been other conversations with other persons online which had not so far been mentioned or raised in cross-examination. Counsel for Sharman has, as we have indicated, relied on exchanges with LJ which were before the jury and which, as we read them, readily enabled Sharman to advance the arguments now put forward on his behalf. Counsel for Sharman was, with respect, unable to identify any prejudice suffered by the defence case. It must also be remembered that Sharman knows what his online activity was during the relevant period and could give evidence about it if he wished to do so.[34]As to the second basis, it is important to keep in mind the circumstances of this case and the issues which the jury would have to consider. Sharman's defence is that he knew or suspected, from a very early stage, that TL and BC were not genuine and that he never intended to engage in any sexual activity with them. It does not appear to be any part of his case to suggest that he was in some way led or misled into a sexualised exchange in which he had not wanted to engage. In addition, it is again important to remember that the judge made his decision on the basis that the jury had the complete messaging with those two correspondents. They could see for themselves whether TL and/or BC had taken the lead in initiating suggestions of sexual activity. In those circumstances, and again with respect to the judge, we are unable to accept that he was entitled to exclude the evidence on this basis. His ruling was not one which it was reasonable for him to have made.[35]The second ground of appeal accordingly also succeeds. For the avoidance of doubt, it would do so whether or not we had allowed the appeal on the first ground.[36]We therefore allow this prosecution ruling on the grounds that the ruling involved an error of law and that it was in any event a ruling which it was not reasonable for the judge to have made. We accordingly reverse the ruling given by the judge. We order that a fresh trial of Sharman may take place in the Crown Court. That fresh trial may be heard at the same location or at another convenient location of the Crown Court. We think it best, in all the circumstances, if it is heard by a different judge. We mean no disrespect to anyone by saying that; we simply wish to avoid any forensic embarrassment to anyone if similar arguments were to arise in the fresh trial. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS37. Tel No: 020 7404 140038. Email: rcj@epiqglobal.co.uk