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Sexual Offences 

Sexual Offences
Chapter:
Sexual Offences
Author(s):

Paul Connor

DOI:
10.1093/law/9780198806103.003.0011
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Subscriber: null; date: 15 August 2018

1.11.1 Introduction

The majority of offences in this chapter are dealt with under the Sexual Offences Act 2003. The Act provides measures such as the presumptions about consent that will be made by a court under certain circumstances. Apart from the offence of rape (under ss. 1 and 5 of the Act) the offences are ‘gender neutral’, i.e. they can be committed by a male or a female.

It is important to note that there is overlap between many of the offences, for example a mentally disordered person could be raped under s. 1 (because of his/her lack of ability to give true consent) or subjected to sexual activity contrary to s. 30 (due to an inability to refuse). In all circumstances it is essential that the most appropriate option is chosen.

1.11.1.1 Human Rights Considerations

Sexual activities are aspects of a person’s ‘private life’ as protected by Article 8 of the Convention (Dudgeon v United Kingdom (1981) 3 EHRR 40 and ADT v United Kingdom [2000] 31 EHRR 33). This concept applies to homosexual and heterosexual relationships (X v United Kingdom (1997) 24 EHRR 143).

The Sexual Offences Act 2003 and its compatibility with the European Convention on Human Rights were considered in R v G & Secretary of State for the Home Department [2006] EWCA Crim 821. The Court of Appeal held that the imposition of strict liability in relation to the offence under s. 5 of the Act (rape of a child under 13) did not infringe Article 6.2 of the Convention (presumption of innocence).

1.11.1.2 Anonymity

The Sexual Offences (Amendment) Act 1992, s. 1 states:

  1. (1) Where an allegation has been made that an offence to which this Act applies has been committed against a person, neither the name nor address, and no still or moving picture, of that person shall during that person’s lifetime—

    1. (a) be published in England and Wales in a written publication available to the public; or

    2. (b) be included in a relevant programme for reception in England and Wales,

      if it is likely to lead members of the public to identify that person as the person against whom the offence is alleged to have been committed.

  2. (2) Where a person is accused of an offence to which this Act applies, no matter likely to lead members of the public to identify a person as the person against whom the offence is alleged to have been committed (‘the complainant’) shall during the complainant’s lifetime—

    1. (a) be published in England and Wales in a written publication available to the public; or

    2. (b) be included in a relevant programme for reception in England and Wales.

Keynote

The Sexual Offences (Amendment) Act 1992 provided anonymity to a victim/complainant of most sexual offences (including rape, assault by penetration, sexual assault by touching etc.) throughout their lifetime. This means that there are restrictions on the way in which trials and cases may be reported and the courts have powers to enforce these provisions.

1.11.2 Rape

Offence Rape—Sexual Offences Act 2003, s.1

  • Triable on indictment

  • Life imprisonment

The Sexual Offences Act 2003, s. 1 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

    2. (b) B does not consent to the penetration, and

    3. (c) A does not reasonably believe that B consents.

  2. (2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Keynote

Rape is an offence that can only be committed via the use of the penis. Therefore rape (as a principal offender) can only be committed by a man, although a woman who encourages or assists a man to penetrate another person with his penis, not reasonably believing the other person is consenting, may be convicted of aiding and abetting rape (R v Cogan [1976] QB 217). It can be committed if the defendant penetrates the vagina, anus or mouth of the victim with the penis. ‘Vagina’ is taken to include the vulva (s. 79(9)). In respect of penetration of the vagina it is not necessary to show that the hymen was ruptured.

You must show that the victim did not in fact consent at the time and that the defendant did not reasonably believe that he/she consented. The wording is supported by the further provision that whether or not the defendant’s belief is reasonable will be determined having regard to all the circumstances (s. 1(2)). Section 1(2) does not positively require an accused to have taken steps to ascertain whether the complainant consents. However, this is something a jury will consider when considering the reasonableness of his belief. More steps are likely to be expected where there is no established relationship.

Sections 75 and 76 apply to this offence.

If the victim is a child under 13, a specific offence of ‘Rape of a Child Under 13’ is committed (s. 5). You simply have to prove intentional penetration and the child’s age; no issue of ‘consent’ arises.

Section 103(2)(b) of the Criminal Justice Act 2003 provides that a defendant’s propensity to commit offences of the kind with which he is charged may (without prejudice to any other way of doing so) be established by evidence that he has been convicted of an offence of ‘the same category’. An offence under s. 1, if committed in relation to a person under the age of 16, or under s. 5 (including aiding, abetting, counselling, procuring, inciting or attempting the commission of such an offence) falls within the relevant sexual offences category. A number of other sexual offences that follow in this chapter are also covered and will fall within the relevant sexual offences category (see the Criminal Justice Act 2003 (Categories of Offences) Order 2004 (SI 2004/3346)).

1.11.2.1 Criminal Conduct

To prove rape you must show that the defendant intentionally penetrated the vagina, mouth or anus of the victim with his penis. Penetration is a continuing act from entry to withdrawal (s. 79(2)). The ‘continuing’ nature of this act is of importance when considering the issue of consent and the statutory presumptions under ss. 75 and 76. While it is not necessary to prove ejaculation (indeed it is entirely irrelevant to the offence), the presence of semen or sperm may be important in proving the elements of a sexual offence. References to a part of the body (for example, penis, vagina) will include references to a body part which has been surgically constructed, particularly if it is through gender reassignment (s. 79(3)). The offence thus protects transsexuals. It also means, however, that a person who has a surgically constructed penis can commit the offence of rape.

1.11.2.2 Consent

The Sexual Offences Act 2003, s. 74 states:

For the purpose of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

The issue of consent is a question of fact although legislation has included some specific situations which allow presumptions and conclusions to be made regarding a lack of consent.

Any consent given must be ‘true’ consent, not simply a submission induced by fear or fraud. Therefore, if the person does not have any real choice in the matter, or the choice is not a genuine exercise of free will, then he/she has not ‘consented’.

An example of how ‘true’ consent operates is the case involving PC Stephen Mitchell who committed a number of sexual offences against vulnerable women over a period of years. On one occasion Mitchell drove one of his victims to a dirt track and told her that if she did not do as he said he would ensure her children were taken away from her for good, and then raped her. Any ‘consent’ given by the victim could not be ‘true’ because her choice to participate in the act of sexual intercourse would not be by the genuine exercise of free will (a ‘gun to the head’-type scenario).

‘Capacity’ is an integral part of the definition of consent. A valid consent can only be given by a person who has the capacity to give it. The Sexual Offences Act 2003 does not define ‘capacity’. Common-law principles that developed under the old law suggest that complainants will not have had the capacity to agree by choice where their understanding and knowledge were so limited that they were not in a position to decide whether or not to agree (R v Howard (1965) 1 WLR 13). Some people are not capable of giving the required consent—these are addressed in further sections of this chapter.

Even if freely given, consent may still be withdrawn at any time. Once the ‘passive’ party to sexual penetration withdraws consent, any continued activity (for example, penetration in rape: R v Cooper [1994] Crim LR 531) can amount to a sexual offence provided all the other ingredients are present.

In R v B [2006] EWCA Crim 2945, the Court of Appeal stated that whether an individual had a sexual disease or condition, such as being HIV positive, was not an issue as far as consent was concerned. The case related to a man who was alleged to have raped a woman after they had met outside a nightclub. When arrested, the man informed the custody officer that he was HIV positive, a fact he had not disclosed to the victim prior to sexual intercourse. At the original trial, the judge directed that this non-disclosure was relevant to the issue of consent. On appeal the court stated that this was not the case and that the consent issue for a jury to consider was whether or not the victim consented to sexual intercourse, not whether she consented to sexual intercourse with a person suffering from a sexually transmitted disease. However, in McNally v R [2013] EWCA Crim 1051 (see para. 1.11.2.3) the Court of Appeal observed that B was not an authority that HIV status could not vitiate consent. B left the issue open and HIV status could vitiate consent if, for example, the complainant had been positively assured that the accused was not HIV positive.

Keynote

So the situation with a person who is HIV positive and is aware of his condition is as follows:

  • if the accused makes no mention of his condition this will not be rape (R v B). However, it may constitute an offence under the Offences Against the Person Act 1861 (s. 20 or s.18) (see R v Dica and R v Konzani, at para. 1.9.7.3);

  • if the accused positively assures the complainant that he is not HIV positive this would constitute rape (R v McNally).

1.11.2.3 Conditional Consent

Section 74 has been considered by the High Court and the Court of Appeal in a series of cases where apparent consent in relation to sexual offences was considered not to be true consent, either because a condition upon which consent was given was not complied with or because of a material deception (other than one which falls within s. 76 of the Sexual Offences Act 2003 (see para. 1.11.2.5)). The judgments identified three sets of circumstances in which the consent to sexual activity might be vitiated where the condition was breached.

In Assange v Sweden [2001] EWHC 2489 (Admin) the Divisional Court considered the situation in which A knew B (the complainant) would only consent to sexual intercourse if he used a condom. The court rejected the view that the conclusive presumption in s. 76 of the Sexual Offences Act 2003 would apply and concluded that the issue of consent could be determined under s. 74 rather than s. 76 and stated that it would be open to a jury to hold that if B had made it clear that she would only consent to sexual intercourse if A used a condom then there would be no consent if, without B’s consent, A did not use a condom, or removed or tore the condom. A’s conduct in having sexual intercourse without a condom in circumstances where B had made it clear that she would only have sexual intercourse if A did use a condom would therefore amount to an offence.

In R (F) v DPP [2013] EWHC 945 (Admin), the High Court examined an application for judicial review of the refusal of the DPP to initiate a prosecution for rape and/or sexual assault on B by A (her former partner). ‘Choice’ and the ‘freedom’ to make any particular choice must, the court said, be approached in ‘a broad commonsense way’. Against what the court described as the ‘essential background’ of A’s ‘sexual dominance’ of B and B’s ‘unenthusiastic acquiescence to his demands’ the court considered a specific incident when B consented to sexual intercourse only on the clear understanding that A would not ejaculate inside her vagina. B believed that A intended and agreed to withdraw before ejaculation, and A knew and understood that this was the only basis on which B was prepared to have sexual intercourse with him. When he deliberately ejaculated inside B, the result, the court said, was B being deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based and accordingly her consent was negated. Contrary to B’s wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration, if B had an inkling of A’s intention, A deliberately ejaculated within her vagina. This combination of circumstances falls within the statutory definition of rape.

The third case, McNally v R [2013] EWCA Crim 1051, differs from the two cases. Unlike Assange and F, both of which turned on an express condition, McNally was concerned with the material deception of B by A. The unusual facts considered by the court involved the relationship between two girls which, over three years, developed from an Internet relationship to an ‘exclusive romantic relationship’ that involved their meeting and engaging in sexual activity. From the start, A presented herself to B as a boy, a deception she maintained throughout their relationship. Examining the nature of ‘choice’ and ‘freedom’ the court determined that ‘deception as to gender can vitiate consent’. The court’s reasoning is that while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common-sense view, different where the complainant is deliberately deceived by a defendant into believing the latter is male. Assuming the facts to be proved as alleged, B chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by A’s deception. Demonstrating that the circumstances in which consent may be vitiated are not limitless, the court explained that, in reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent.

1.11.2.4 Section 75—Evidential Presumptions about Consent

The Sexual Offences Act 2003, s. 75 states:

  1. (1) If in proceedings for an offence to which this section applies it is proved—

    1. (a) that the defendant did the relevant act,

    2. (b) that any of the circumstances specified in subsection (2) existed, and

    3. (c) that the defendant knew that those circumstances existed,

the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.

Keynote

This means that, if the prosecution can show that the defendant carried out the relevant act in relation to certain specified sexual offences (for example, penetration in rape) and that any of the circumstances below existed and the defendant knew they existed, it will be presumed that the victim did not consent. Then the defendant will have to satisfy the court, by reference to evidence, that this presumption should not be made.

Section 75(2) sets out the circumstances in which evidential presumptions may apply. They are that:

  1. (a) any person was, at the time of the relevant act (or immediately before it began), using violence against the complainant or causing the complainant to fear that immediate violence would be used against him/her;

  2. (b) any person was, at the time of the relevant act or immediately before it began, causing the complainant to fear that violence was being used, or that immediate violence would be used, against another person;

  3. (c) the complainant was, and the defendant was not, unlawfully detained at the time of the relevant act;

  4. (d) the complainant was asleep or otherwise unconscious at the time of the relevant act;

  5. (e) because of the complainant’s physical disability, the complainant would not have been able at the time of the relevant act to communicate to the defendant whether the complainant consented;

  6. (f) any person had administered to or caused to be taken by the complainant, without the complainant’s consent, a substance which, having regard to when it was administered or taken, was capable of causing or enabling the complainant to be stupefied or overpowered at the time of the relevant act.

The ‘relevant act’ for each offence covered by s. 75 will generally be obvious but is set out specifically at s. 77.

It is important to note that the circumstances set out in s. 75(2) are not exhaustive in terms of deciding when consent will be absent. There may be circumstances that fall outside the situations described in s. 75(2) where consent does not exist. For example, the case of PC Stephen Mitchell (see para. 1.11.2.2) did not involve any of the circumstances set out in s. 75(2) and yet he was still guilty of rape as his victim’s consent was not true consent; it was obtained by a threat to take her children away (submission). This fact that this situation does not appear in the sets of circumstances listed in s. 75(2) merely means that a presumption in relation to consent cannot be made in such a case—it does not mean that the victim consented to the activity.

1.11.2.5 Conclusive Presumptions about Consent

Section 76 of the Sexual Offences Act 2003 states:

  1. (1) If in proceedings for an offence to which this section applies it is proved that the defendant did the relevant act and that any of the circumstances specified in subsection (2) existed, it is to be conclusively presumed—

    1. (a) that the complainant did not consent to the relevant act, and

    2. (b) that the defendant did not believe that the complainant consented to the relevant act.

  2. (2) The circumstances are that—

    1. (a) the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act;

    2. (b) the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant.

These provisions deal with situations where the defendant either misrepresents the nature or purpose of what he/she is doing (for example, pretending that inserting a finger into the victim’s vagina is for medical reasons) or impersonates the victim’s partner. Section 76 requires that a misunderstanding was created by the defendant and that it was done deliberately. Once it is proved, beyond a reasonable doubt, that these circumstances existed then it is conclusive and the defendant cannot argue against them.

In R v Bingham [2013] 2 Cr App R 307 (seven counts of causing his girlfriend to engage in sexual activity without consent under s. 4 of the Sexual Offences Act 2003 (see para. 1.11.4)), B, using pseudonyms, established an online Facebook relationship with his girlfriend so as to persuade and then blackmail her into providing him with photographs of her engaging in sexual activity. The Court of Appeal held that the reliance at trial upon s. 76 was misplaced. The motive behind the conduct was sexual gratification, and there was no deception as to that (i.e. there was no deception as to the purpose of the act). The prosecution would have had forceful arguments under s. 74 on the basis that the victim only complied because she was being blackmailed. In light of s. 76(2), it would appear that deception as to the identity of the recipient would not be sufficient as it was impersonation of a person unknown to the complainant. This case can be contrasted with R v Devonald [2008] EWCA Crim 527 (another s. 4 offence). In this case the court held that s. 76 did apply; it was open to the jury to conclude that the complainant was deceived into believing he was masturbating for the gratification of a 20-year-old girl via a webcam when in fact he was doing it for the father of a former girlfriend who was teaching him a lesson. Here, ‘purpose’ has been given a wide meaning in that the deception was not as to sexual gratification, rather it was to the purpose of the masturbation (to teach the victim a lesson).

It is important to emphasise the fact that s. 76 deals with situations where the defendant either:

  • deceives the victim regarding the nature and purpose of the act or

  • induces the victim to consent to the relevant act by impersonating a person known personally to the complainant.

If the deception/inducement does not relate to either of these aims then s. 76 has no application. For example, in R v Jheeta [2007] EWCA Crim 1699, the defendant deceived the complainant into having sex more frequently than she would have done otherwise. In these circumstances the conclusive presumptions under the Sexual Offences Act 2003 had no relevance as the complainant had not been deceived as to the nature or purpose of the sexual intercourse. Likewise, a false promise to marry made by A to B to encourage B to have sexual intercourse would not be covered, nor would a false promise to pay B in exchange for sexual intercourse.

As with s. 75, the ‘relevant act’ for each offence covered by s. 76 will generally be obvious but is set out specifically at s. 77.

1.11.3 Sexual Assault

There are several specific offences dealing with types of sexual assault: these are discussed below.

1.11.3.1 Assault by Penetration

Offence Assault by Penetration—Sexual Offences Act 2003, s. 2

  • Triable on indictment

  • Life imprisonment

The Sexual Offences Act 2003, s. 2 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

    2. (b) the penetration is sexual,

    3. (c) B does not consent to the penetration, and

    4. (d) A does not reasonably believe that B consents.

Keynote

This offence involves penetration by any part of the body or anything else whatsoever. It is therefore a broad offence covering insertion into the vagina or anus (though not the mouth) of anything (such as a dildo or even an animal), provided that the penetration is ‘sexual’. Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 2(2)).

Sections 75 and 76 apply to this offence.

If the victim is a child under 13, you simply have to prove intentional, sexual penetration and the child’s age. No issue of ‘consent’ arises and a specific offence under s. 6 is committed.

1.11.3.2 The Definition of the Term ‘Sexual’

Section 78 of the Act defines the term ‘sexual’ and provides that penetration, touching or any other activity will be sexual if a reasonable person would consider that:

  1. (a) whatever its circumstances or any person’s purpose in relation to it, it is sexual by its very nature or,

  2. (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it, it is sexual.

Therefore, activity under (a) covers things that a reasonable person would always consider to be sexual (for example, masturbation), while activity under (b) covers things that may or may not be considered sexual by a reasonable person depending on the circumstances or the intentions of the person carrying it out (or both). For instance, a doctor inserting his/her finger into the vagina of a patient might be considered sexual by its nature, but if done for a purely medical purpose in a hospital (the circumstances and genuine medical purpose of the doctor in examining the patient), it would not be sexual.

If the activity would not appear to a reasonable person to be sexual, then it will not meet either criterion and, irrespective of any sexual gratification the person might derive from it, the activity will not be ‘sexual’. Therefore weird or exotic fetishes that no ordinary person would regard as being sexual or potentially sexual will not be covered. This pretty well follows the common law developments in this area (R v Court [1989] AC 28 and R v Tabassum [2000] 2 Cr App R 328).

Keynote

The offence of assault by penetration contains the first reference to the term ‘sexual’. The term is exceptionally important for a variety of offences contained in the Sexual Offences Act 2003. What has been said above in relation to how this term is interpreted will apply to all offences contained in the Sexual Offences Act 2003 where the term ‘sexual’ is used apart from the offence under s. 15A (sexual communication with a child) and s. 71 (sexual activity in a public lavatory).

1.11.3.3 Sexual Assault by Touching

Offence Sexual Assault by Touching—Sexual Offences Act 2003, s. 3

  • Triable either way

  • If victim is a child under 13—14 years’ imprisonment; otherwise 10 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 3 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally touches another person (B),

    2. (b) the touching is sexual,

    3. (c) B does not consent to the touching, and

    4. (d) A does not reasonably believe that B consents.

Keynote

Touching for the purposes of the above offence includes touching a person’s clothing while they are wearing it. Therefore, where a man approached a woman and asked ‘Do you fancy a shag?’, grabbing at a pocket on her tracksuit bottoms as she tried to walk away, he was properly convicted of the s. 3 offence even though he did not touch her person (R v H [2005] EWCA Crim 732).

The conduct must be intentional (rather than reckless or accidental).

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 3(2)).

Sections 75 and 76 apply to this offence.

If the victim is a child under 13, you simply have to prove intentional, sexual touching and the child’s age. No issue of ‘consent’ arises and a specific offence under s. 7 is committed.

1.11.3.4 The Definition of the Term ‘Touching’

Section 79(8) states that touching includes touching:

  • with any part of the body,

  • with anything else,

  • through anything

and in particular, touching amounting to penetration (this could include kissing).

The part of the body touched does not have to be a sexual organ or orifice. There is no requirement for force or violence so the lightest touching will suffice. ‘Touching’ for the purposes of an offence under s. 3 (see para. 1.11.3.3) includes the touching of a victim’s clothing while they are wearing it even though the person of the victim is not touched through the clothing (R v H [2005] EWCA Crim 732). In H it was held that it was not Parliament’s intention to preclude the touching of a victim’s clothing from amounting to a sexual ‘assault’. Where touching was not automatically by its nature ‘sexual’ the test under s. 78(b) applies (see para. 1.11.3.2). In a case where that section applies it will be appropriate for a trial judge to ask the jury to determine whether touching was ‘sexual’ by answering two questions. First, would the jury, as 12 reasonable people, consider that the touching could be sexual and, if so, whether in all the circumstances of the case, they would consider that the purpose of the touching had in fact been sexual.

The victim need not be aware of the touching. For example in the case of R v Bounekhla [2006] EWCA Crim 1217 the accused surreptitiously took his penis out of his trousers and ejaculated onto a woman’s clothing when pressed up against her dancing at a nightclub.

If touching does not occur, the offence is not completed, although the circumstances may amount to an attempt. Nevertheless, it remains arguable that ejaculation onto a victim’s clothing without contact with any part of the accused’s body still constitutes a touching.

Keynote

The offence of sexual assault contains the first reference to the term ‘touching’. The term is exceptionally important for a variety of offences contained in the Sexual Offences Act 2003. What has been said above in relation to how this term is interpreted will apply to all offences contained in the Sexual Offences Act 2003 where the term ‘touching’ is used.

1.11.4 Causing Sexual Activity without Consent

Offence Causing a Person to Engage in Sexual Activity without Consent—Sexual Offences Act 2003, s. 4

  • If involves penetration: of the victim’s anus or vagina, of victim’s mouth with penis, of any other person’s anus or vagina with a part of victim’s body or by victim, or of any person’s mouth by victim’s penis—triable on indictment; life imprisonment

  • Otherwise triable either way; 10 years’ imprisonment on indictment; six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 4 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally causes another person (B) to engage in an activity,

    2. (b) the activity is sexual,

    3. (c) B does not consent to engaging in the activity, and

    4. (d) A does not reasonably believe that B consents.

Keynote

The offence is committed when A causes B to engage in sexual activity without B’s consent, whether or not A also engages in it and whether or not A is present.

The offence can involve a number of permutations, for example a woman making a man penetrate her, a man forcing someone else to masturbate him, a woman making another woman masturbate a third person or even an animal. The shocking circumstances of R v H [2008] EWCA Crim 1202 are an example of where an animal was used in the commission of the offence where the visibly mentally disabled victim was forced, among other things, to be penetrated in the anus by a dog. It would include causing a person to act as a prostitute. Apart from the defendant and the victim, there may be others involved who also consent—they may be liable for aiding and abetting under the right circumstances.

The term ‘activity’ is not defined and is capable of being given a wide interpretation, although it must have actually taken place. The activity engaged in must be ‘sexual’ in accordance with s. 78. It can include engaging someone in a conversation of a sexual nature (R v Grout [2011] EWCA Crim 299).

This offence overlaps partly with rape in that it deals with vaginal, anal and oral penetration. The offence is wider than rape, in that rape can only be committed by a man, as a principal, and does not involve penetration with an object. The offence can be committed by and against persons of either sex and includes cases of ‘female rape’, i.e. where A causes B to penetrate her vagina with his penis. Furthermore, the offence makes A criminally liable for causing B to engage in sexual activity where B cannot himself be convicted of any offence because he has a defence such as duress or is under the age of criminal responsibility (see chapter 1.4).

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps the defendant has taken to ascertain whether the victim consents (s. 4(2)).

Sections 75 and 76 apply to this offence.

There is a specific offence of causing or inciting a child under 13 to engage in sexual activity (s. 8). An individual can commit an offence of incitement even if the activity he/she is encouraging, etc. does not take place. In R v Walker [2006] EWCA Crim 1907, the Court of Appeal held that s. 8 of the Act created two offences: (i) intentionally causing, and (ii) intentionally inciting a child under 13 to engage in sexual activity. The offence was centred on the concept of incitement and the acts had to be intentional or deliberate, but it was not a necessary ingredient for incitement of sexual activity that the defendant had intended the sexual activity to take place.

1.11.5 Child Sex Offences

The Sexual Offences Act 2003 contains specific offences relating to sexual activity involving or directed towards children. In considering each offence it is important to remember the relevant ages, both of offenders and victims. In addition, the Act makes special exceptions to some offences of aiding, abetting or counselling some offences involving children (see para. 1.11.5.4 for such an example).

The full list of offences is set out in s. 73(2); basically it covers specific offences against children under 13 and offences involving sexual activity with a child under 16.

1.11.5.1 Sexual Activity with a Child

Offence Sexual Activity with a Child—Sexual Offences Act 2003, s. 9

  • If involves penetration: of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or of defendant’s mouth by victim’s penis—triable on indictment; 14 years’ imprisonment

  • Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 9 states:

  1. (1) A person aged 18 or over (A) commits an offence if—

    1. (a) he intentionally touches another person (B),

    2. (b) the touching is sexual, and

    3. (c) either—

      1. (i) B is under 16 and A does not reasonably believe that B is 16 or over, or

      2. (ii) B is under 13.

Keynote

If the defendant is under 18, he/she commits a specific offence, punishable by five years’ imprisonment (if tried on indictment) under s. 13. Similarly, if the person committing the offence is in a position of trust in relation to the victim, he/she commits a specific offence under s. 16.

You must show that the defendant intentionally touched the victim sexually and either that the victim was under 13 (in which case the offence is complete) or that the victim was under 16 and that the defendant did not reasonably believe he/she was 16 or over. In either case consent is irrelevant.

There is a further specific offence (s. 10) of a person aged 18 or over intentionally causing or inciting another to engage in the type of sexual activity set out above. The sexual activity caused or envisaged may be with the defendant or with a third person. In the case of incitement there is no need for the sexual activity itself to take place. If the person committing the offence is in a position of trust in relation to the victim, he/she commits a specific offence under s. 17 (see para. 1.11.5.5).

1.11.5.2 Sexual Activity in Presence of a Child

Offence Engaging in Sexual Activity in the Presence of a Child—Sexual Offences Act 2003, s. 11

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 11 states:

  1. (1) A person aged 18 or over (A) commits an offence if—

    1. (a) he intentionally engages in an activity,

    2. (b) the activity is sexual,

    3. (c) for the purpose of obtaining sexual gratification, he engages in it—

      1. (i) when another person (B) is present or is in a place from which A can be observed, and

      2. (ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and

    4. (d) either—

      1. (i) B is under 16 and A does not reasonably believe that B is 16 or over, or

      2. (ii) B is under 13.

Keynote

If the defendant is under 18, he/she commits a specific offence, punishable by five years’ imprisonment (if tried on indictment) under s. 13. Similarly, if the person committing the offence is in a position of trust in relation to the victim, he/she commits a specific offence under s. 18.

The activity in which the offender is engaged must be ‘sexual’ and intentional and must be in order to obtain sexual gratification (for the defendant). A person under 16 must be present or in a place from which the defendant can be observed and the defendant must know, believe or intend that the child was aware that he/she was engaging in that activity. Therefore, it is not necessary to show that the child was in fact aware of the activity in every case. Because of the wording in s. 79(7), ‘observation’ includes direct observation or by looking at any image.

In relation to the child you must show that either the child was under 13 (in which case the offence is complete) or that he/she was under 16 and that the defendant did not reasonably believe him/her to be 16 or over.

This offence is aimed at, for example, people masturbating in front of children or performing sexual acts with others where they know they can be seen (or they want to be seen) by children directly or via a camera/video phone etc.

1.11.5.3 Causing a Child to Watch a Sex Act

Offence Causing a Child to Watch a Sexual Act—Sexual Offences Act 2003, s. 12

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 12 states:

  1. (1) A person aged 18 or over (A) commits an offence if—

    1. (a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,

    2. (b) the activity is sexual, and

    3. (c) either—

      1. (i) B is under 16 and A does not reasonably believe that B is 16 or over, or

      2. (ii) B is under 13.

Keynote

If the defendant is under 18, he/she commits a specific offence, punishable by five years’ imprisonment (if tried on indictment) under s. 13. Similarly, if the person committing the offence is in a position of trust in relation to the victim, he/she commits a specific offence under s. 19.

This offence is concerned with intentionally causing a child to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. ‘Image’ includes a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image (s. 79(4)); it also includes images of an imaginary person (s. 79(5)).

The display of sexual images or sexual activity might, in certain circumstances, be appropriate, for example for medical or educational reasons, hence the requirement that the offence depended on the corrupt purpose of ‘sexual gratification’. The offence under s. 12 of the Act does not require that such gratification has to be taken immediately; i.e. the section does not require that the offence can only be committed if the proposed sexual gratification and the viewed sexual act, or display of images, were simultaneous, contemporaneous or synchronised. For example, the defendant may cause a child to watch a sexual act to put the child in a frame of mind for future sexual abuse, as well as where the defendant does so to obtain enjoyment from seeing the child watch the sexual act (R v Abdullahi [2006] EWCA Crim 2060). The approach to ‘sexual gratification’ taken in Abdullahi is equally applicable to other offences where this phrase appears (the offences under ss. 11 and 15A of the Act, for example).

You must show that either the child was under 13 (in which case the offence is complete) or that he/she was under 16 and that the defendant did not reasonably believe him/her to be 16 or over.

1.11.5.4 Arranging Intended Child Sex Offences

Offence Arranging or Facilitating Commission of Child Sex Offences—Sexual Offences Act 2003, s. 14

  • Triable either way

  • 14 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 14 states:

  1. (1) A person commits an offence if—

    1. (a) he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and

    2. (b) doing it will involve the commission of an offence under any of sections 9 to 13.

Keynote

The relevant offences are those set out in ss. 9 to 13 of the Act described in the earlier paragraphs of this chapter.

The offence applies to activities by which the defendant intends to commit one of those relevant child sex offences him/herself, or by which the defendant intends or believes another person will do so, in either case in any part of the world. The offence is complete whether or not the sexual activity actually takes place. Examples of the offence would include a defendant approaching a third person to procure a child to take part in sexual activity with him or where the defendant makes travel arrangements for another in the belief that the other person will commit a relevant child sex offence.

This part of the Act specifically excludes the actions of those acting for the child’s protection who arrange or facilitate something that they believe another person will do, but that they do not intend to do or intend another person to do. Acting for the child’s protection must fall within one of the following:

  • protecting the child from sexually transmitted infection,

  • protecting the physical safety of the child,

  • preventing the child from becoming pregnant, or

  • promoting the child’s emotional well-being by the giving of advice,

and not for obtaining sexual gratification or for causing or encouraging the activity constituting the relevant child sex offence or the child’s participation in it. This statutory exception (contained in s. 14(2) and (3)) covers activities such as health workers supplying condoms to people under 16 who are intent on having sex in any event and need protection from infection.

Offence Meeting a Child Following Sexual Grooming—Sexual Offences Act 2003, s. 15

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 15 states:

  1. (1) A person aged 18 or over (A) commits an offence if—

    1. (a) A has met or communicated with another person (B) on one or more occasions and subsequently—

      1. (i) A intentionally meets B,

      2. (ii) A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or

      3. (iii) B travels with the intention of meeting A in any part of the world,

    2. (b) A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,

    3. (c) B is under 16, and

    4. (d) A does not reasonably believe that B is 16 or over.

Keynote

The initial action of the defendant involves either a meeting or a communication with the victim (who must be under 16) on at least one previous occasion. Such meetings or communications can be innocuous, such as family occasions or during the course of youth activities and so on. The only requirement prior to an intentional meeting during which an offender intends to do anything to a complainant which, if carried out, would involve the commission by the offender of a relevant offence is a meeting or communication ‘on one or more occasions’. There is no requirement that either communication be sexual in nature (R v G [2010] EWCA Crim 1693).

The communication can include text messaging or interactions in Internet ‘chat rooms’. Such contact can have taken place in any part of the world.

Once the earlier meeting or communication has taken place, the offence is triggered by:

  • an intentional meeting with the victim;

  • a defendant travelling with the intention of meeting the victim;

  • a defendant arranging to meet the victim;

  • the victim travelling to meet the defendant in any part of the world.

The activity at s. 15(1)(a)(iii) means that an offence will be committed by an adult where a child under 16 travels to meet the adult or the adult arranges to meet the child.

At the time of any of the above activities, the defendant must intend to do anything to or in respect of the victim, during or even after the meeting, that would amount to a relevant offence. A relevant offence here is generally any offence under part I of the Act (all the offences covered in this chapter). Note that the intended offence does not have to take place.

You must show that the victim was under 16 and that the defendant did not reasonably believe that he/she was 16 or over.

Offence Sexual Communication with a Child—Sexual Offences Act 2003, s. 15A

  • Triable either way

  • 2 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 15A states:

  1. (1) A person aged 18 or over (A) commits an offence if—

    1. (a) for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),

    2. (b) the communication is sexual or is intended to encourage B to make (whether to A or another) a communication that is sexual, and,

    3. (c) B is under 16, and A does not reasonably believe that B is 16 or over.

Keynote

‘Sexual’

The definition of the term ‘sexual’ under s. 78 of the Act does not apply to this offence.

For the purposes of this section, a communication is sexual if—

  • any part of it relates to ‘sexual activity’, or

  • a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual.

‘Sexual activity’ means any activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual (s. 15A(2)).

The offence criminalises conduct where an adult intentionally communicates (for example by email, text message, written note or orally) with a child under 16 (whom the adult does not reasonably believe to be aged 16 or over) for the purpose of obtaining sexual gratification if the communication is sexual or intended to encourage the child to make a communication that is sexual. The offence may be committed, for example, by talking sexually to a child via an internet chat room or sending sexually explicit text messages to a child as well as inviting a child to communicate sexually (irrespective of whether the invitation is itself sexual).

The offence is designed to ensure that it does not criminalise, for example, ordinary social or educational interactions between children and adults or communications between young people themselves as the communication must be for the corrupt purpose of obtaining ‘sexual gratification’.

The interpretation of the term ‘sexual gratification’ is the same taken in ss. 11 and 12 of the Act so it would not matter if the defendant made a relevant communication in order to obtain immediate sexual gratification or the obtaining of such gratification was part of a longer term plan or both.

1.11.5.5 Abuse of Position of Trust

Offence Abuse of Position of Trust—Sexual Offences Act 2003, ss. 16 to 19

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment summarily or a fine not exceeding the statutory maximum or both

Offences under ss. 16 to 19 are exactly the same activities as discussed above (see paras 1.11.5.1 to 1.11.5.3), except that they are committed by a person in ‘a position of trust’ and can be committed against a child aged 16 or 17.

‘Position of Trust’

The Sexual Offences Act 2003, s. 21 states:

  1. (1) For the purposes of sections 16 to 19, a person (A) is in a position of trust in relation to another person (B) if—

    1. (a) any of the following subsections applies, or

    2. (b) any condition specified in an order made by the Secretary of State is met.

  2. (2) This subsection applies if A looks after persons under 18 who are detained in an institution by virtue of a court order or under an enactment, and B is so detained in that institution.

  3. (3) This subsection applies if A looks after persons under 18 who are resident in a home or other place in which—

    1. (a) accommodation and maintenance are provided by an authority under section 23(2) of the Children Act 1989 (c. 41) …, or

    2. (b) accommodation is provided by a voluntary organisation under section 59(1) of that Act …,

      and B is resident, and is so provided with accommodation and maintenance or accommodation, in that place.

  4. (4) This subsection applies if A looks after persons under 18 who are accommodated and cared for in one of the following institutions—

    1. (a) a hospital,

    2. (b) in Wales, an independent clinic,

    3. (c) a care home,

    4. (d) a community home, voluntary home or children’s home, or

    5. (e) a home provided under section 82(5) of the Children Act 1989,

      and B is accommodated and cared for in that institution.

  5. (5) This subsection applies if A looks after persons under 18 who are receiving education at an educational institution and B is receiving, and A is not receiving, education at that institution.

  6. (6)

  7. (7) This subsection applies if A is engaged in the provision of services under, or pursuant, to anything done under—

    1. (a) sections 8 to 10 of the Employment and Training Act 1973 (c. 50), or

    2. (b) section 68, 70(1)(b) or 74 of the Education and Skills Act 2008,

      and, in that capacity, looks after B on an individual basis.

  8. (8) This subsection applies if A regularly has unsupervised contact with B (whether face to face or by any other means)—

    1. (a) in the exercise of functions of a local authority under section 20 or 21 of the Children Act 1989 (c. 41),

    2. (b)

  9. (9) This subsection applies if A, as a person who is to report to the court under section 7 of the Children Act 1989 … on matters relating to the welfare of B, regularly has unsupervised contact with B (whether face to face or by any other means).

  10. (10) This subsection applies if A is a personal adviser appointed for B under—

    1. (a) section 23B(2) of, or paragraph 19C of Schedule 2 to, the Children Act 1989,

    2. (b)

      and, in that capacity, looks after B on an individual basis.

  11. (11) This subsection applies if—

    1. (a) B is subject to a care order, a supervision order or an education supervision order, and

    2. (b) in the exercise of functions conferred by virtue of the order on an authorised person or the authority designated by the order, A looks after B on an individual basis.

  12. (12) This subsection applies if A—

    1. (a) is an officer of the Service or Welsh family proceedings officer (within the meaning given by section 35 of the Children Act 2004) appointed for B under section 41(1) of the Children Act 1989,

    2. (b) is appointed a children’s guardian of B under rule 6 or rule 18 of the Adoption Rules 1984 (S.I. 1984/265), or

    3. (c) is appointed to be the guardian ad litem of B under rule 9.5 of the Family Proceedings Rules 1991 (S.I. 1991/1247) …

    4. (d) is appointed to be the children’s guardian of B under rule 59 of the Family Procedure (Adoption) Rules 2005 (S.I. 2005/2795) or rule 16.3(1)(ii) or rule 16.4 of the Family Procedure Rules 2010 (S.I. 2010/2955)

      and, in that capacity, regularly has unsupervised contact with B (whether face to face or by any other means).

  13. (13) This subsection applies if—

    1. (a) B is subject to requirements imposed by or under an enactment on his release from detention for a criminal offence, or is subject to requirements imposed by a court order made in criminal proceedings, and

    2. (b) A looks after B on an individual basis in pursuance of the requirements.

Keynote

The key to this list lies in establishing whether the defendant looked after people under 18 in the contexts described or the defendant’s relationship with the victim fell into one of the other categories at s. 21(7)–(13). Further clarification for the interpretation of these definitions is set out in s. 22.

In summary, positions of trust include the wide range of settings in which a child is being lawfully detained or accommodated, including situations such as foster care or residential care. Those who look after children on an individual basis such as Connexions Personal Advisors and people with unsupervised contact appointed under the relevant parts of the Children Act 1989 will be covered.

There are specific procedures in place for dealing with allegations of abuse made against teachers and educational support staff. These are overseen by the relevant Local Safeguarding Children Boards.

Essentially the above provisions make it a specific offence for a person aged 18 or over in a position of trust to engage in sexual activity which is prohibited by the general child sex offences considered earlier in this chapter (ss. 9 to 12) in relation to a child, namely:

  • sexual activity with a child;

  • causing or inciting a child to engage in sexual activity;

  • sexual activity in the presence of a child;

  • causing a child to watch a sexual act.

There are however some key differences. For instance, in such cases involving an abuse of a position of trust, the ‘child’ victim can be 16 or 17 years old and except in cases where the victim is under 13, it must be shown that the defendant did not reasonably believe that the victim was 18 or over. Once it is proved that the victim was under 18 an evidential burden passes to the defendant. This means that, unless the defendant can point to some evidence to raise an arguable case to the contrary, it will be presumed that he/she did not reasonably believe that the victim was 18 or over.

There are further provisions relating to rebuttable presumptions of knowledge by the defendant. Generally, if the position of trust held by the defendant falls within the first four categories set out in s. 21 (2)–(5) (basically where the defendant looks after children at an institution and the victim is at that institution), there will be a further evidential burden on the defendant. Where the defendant works in an institution where the victim is, it will be presumed that the defendant knew (or could reasonably have been expected to know) that there was a position of trust between him/her and the victim unless he/she can point to some evidence to the contrary.

An exception to the offences under ss. 16 to 19 is where a lawful sexual relationship existed between the defendant and the victim before the position of trust arose (s. 24) and where the defendant and the victim were lawfully married to each other at the time (s. 23).

1.11.5.6 Sex Offences with Family Members

Offence Sexual Activity with Child Family Member—Sexual Offences Act 2003, s. 25

  • Where defendant is 18 or over at the time of the offence and if involves penetration: of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or of defendant’s mouth by victim’s penis—triable on indictment: 14 years’ imprisonment

  • Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

  • Or, where defendant is under 18 at the time of the offence; five years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 25 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally touches another person (B),

    2. (b) the touching is sexual,

    3. (c) the relation of A to B is within section 27,

    4. (d) A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and

    5. (e) either—

      1. (i) B is under 18 and A does not reasonably believe that B is 18 or over, or

      2. (ii) B is under 13.

Keynote

Where the defendant intentionally incites another person (the victim) to touch him/her or to allow him/herself to be touched by the defendant, there is a specific offence committed under s. 26.

For the relevant definitions of touching and sexual see paras 1.11.3.4 and 1.11.3.2.

The further elements that must be proved are the existence of the relevant family relationship between the defendant and the victim, and the age of the victim.

Where the relevant family relationship is proved, it will be presumed that the defendant knew or could reasonably have been expected to know that he/she was related to the victim in that way. Similarly where it is proved that the victim was under 18, there will be a presumption that the defendant did not reasonably believe that the victim was 18 or over. In respect of both the relationship and the age of the defendant under these circumstances, the defendant will have an evidential burden to discharge in that regard (s. 25(2) and (3)).

The relevant family relationships are set out in s. 27. These cover all close family relationships along with adoptive relationships. They are where:

  • the defendant or the victim is the other’s parent, grandparent, brother, sister, half-brother, half-sister, aunt or uncle or

  • the defendant is or has been the victim’s foster parent.

Additional categories are where the defendant and victim live or have lived in the same household, or the defendant is or has been regularly involved in caring for, training, supervising or being in sole charge of the victim and:

  • one of them is or has been the other’s step-parent,

  • they are cousins,

  • one of them is or has been the other’s stepbrother or stepsister, or

  • they have the same parent or foster parent.

There are exceptions for situations where the defendant and the victim are lawfully married at the time or where (under certain circumstances) the sexual relationship pre-dates the family one. For example, where two divorcees each have a child of 17 who are engaged in a sexual relationship before their respective parents marry and move all four of them into the same household.

1.11.5.7 Other Offences with Family Members

Offence Sex with an Adult Relative: Penetration—Sexual Offences Act 2003, s. 64

  • Triable either way

  • Two years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 64 states:

  1. (1) A person aged 16 or over (A) (subject to subsection 3A)) commits an offence if

    1. (a) he intentionally penetrates another person’s vagina or anus with a part of his body or anything else, or penetrates another person’s mouth with his penis,

    2. (b) the penetration is sexual,

    3. (c) the other person (B) is aged 18 or over,

    4. (d) A is related to B in a way mentioned in subsection (2), and

    5. (e) A knows or could reasonably be expected to know that he is related to B in that way.

Offence Sex with an Adult Relative: Consenting to Penetration—Sexual Offences Act 2003, s. 65

  • Triable either way

  • Two years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 65 states:

  1. (1) A person aged 16 or over (A) (subject to subsection 3A)) commits an offence if—

    1. (a) another person (B) penetrates A’s vagina or anus with a part of B’s body or anything else, or penetrates A’s mouth with B’s penis,

    2. (b) A consents to the penetration,

    3. (c) the penetration is sexual,

    4. (d) B is aged 18 or over,

    5. (e) A is related to B in a way mentioned in subsection (2), and

    6. (f) A knows or could reasonably be expected to know that he is related to B in that way.

Keynote

For either offence to be committed the penetration must be ‘sexual’. This requirement ensures that a penetration for some other purpose, for example where one sibling helps another to insert a pessary for medical reasons, is not caught by this offence.

A ‘relative’ for ss. 64 and 65 is a parent, grandparent, child, grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece.

The Criminal Justice and Immigration Act 2008 amended ss. 64 and 65 so that the offences of sex with an adult relative are committed where an adoptive parent has consensual sex with their adopted child when he/she is aged 18 or over. The adopted person does not commit this offence unless he/she is aged 18 or over.

In both offences, where the relevant relationship is proved, it will be taken that the defendant knew or could reasonably have been expected to know that he/she was related in that way unless sufficient evidence is adduced to raise an issue as to whether he/she knew or could reasonably have been expected to know that he/she was.

1.11.5.8 Sexual Exploitation of Children

Offence Paying for Sexual Services of a Child—Sexual Offences Act 2003, s. 47

  • If victim is child under 13; triable on indictment; life imprisonment

  • Where victim is under 16 at the time of the offence and if involves penetration of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or by victim with anything else—triable on indictment: 14 years’ imprisonment

  • Otherwise triable either way: seven years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 47 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally obtains for himself the sexual services of another person (B),

    2. (b) before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment.

Keynote

If the child is under 13, the offence is complete at this point. If the child is under 18, you must prove that the defendant did not reasonably believe that the child was 18 or over (s. 47(1)(c)).

Payment means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount (s. 47(2)). This would include situations where the child victim is given drugs or other goods/services at a cheaper rate in exchange for sexual services from the child.

Offence Causing, Inciting, Controlling, Arranging or Facilitating the Sexual Exploitation of Children—Sexual Offences Act 2003, ss. 48 to 50

  • Triable either way

  • 14 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 48 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally causes or incites another person (B) to be sexually exploited, in any part of the world …

The Sexual Offences Act 2003, s. 49 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally controls any of the activities of another person (B) relating to B’s sexual exploitation in any part of the world …

The Sexual Offences Act 2003, s. 50 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally arranges or facilitates the sexual exploitation in any part of the world of another person (B) …

Keynote

These offences are aimed at those who seek to recruit children for prostitution or to take part in pornography, or otherwise control these activities and arrangements anywhere in the world. For the accused to be guilty of the incitement offence it is not necessary that B actually becomes a prostitute or involves him/herself in pornography.

If the child is under 13, the offences are complete once the relevant conduct of the defendant has been proved and any belief the defendant may have had as to the child’s age is irrelevant to guilt. If the child is under 18, you must prove that the defendant did not reasonably believe that the child was 18 or over (see subs. (1)(b) of each).

For the purposes of ss. 48 to 50, a person (B) is sexually exploited if:

  • on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person, or

  • an indecent image of B is recorded and sexual exploitation is to be interpreted accordingly (s. 51(2)).

Payment means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount (s. 51(3)).

These offences would be committed if the child is recruited on a one-off basis, as well as on those occasions where the child is habitually involved. Unlike the general offence of controlling prostitution (see para. 1.11.11.2) there is no need to show that the causing or inciting was done for gain. The expressions used in the sections are deliberately wide and will, in places, overlap. Controlling the activities of the child would include, for example, setting the relevant price or specifying which room or equipment is to be used. Arranging will include taking an active part in the transport or travel arrangements or organising relevant facilities (such as hotel rooms etc.).

1.11.5.9 Information About Guests at Hotels

Section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 confers a power on a police officer, of at least the rank of inspector, to serve a notice on the owner, operator or manager of a hotel that the officer reasonably believes has been or will be used for the purposes of child sexual exploitation or conduct preparatory to or connected with it.

For the purposes of s. 116, ‘child sexual exploitation’ is defined at s. 116(8) to include offences under any of the following sections of the Sexual Offences Act 2003:

  • ss. 1 to 13 (rape, assault and causing sexual activity without consent, rape and other offences against children under 13 and child sex offences);

  • ss. 16 to 19 (abuse of position of trust);

  • ss. 25 and 26 (familial child sex offences);

  • ss. 30 to 41 (persons with a mental disorder impeding choice, inducements etc. to persons with a mental disorder, and care workers for persons with a mental disorder);

  • ss. 47 to 50 (abuse of children through prostitution and pornography);

  • s. 59A (trafficking people for sexual exploitation);

  • s. 61 (administering a substance with intent);

  • ss. 66 and 67 (exposure and voyeurism).

An offence under s. 1 of the Protection of Children Act 1978 (indecent photographs of children) is also included under s. 116.

The notice must be in writing and specify the hotel to which it relates, the date on which it comes into effect and the date on which it expires. It must also explain the information that a constable may require the person issued with a notice to provide, avenues of appeal against the notice, and the consequences of failure to comply. The notice must also specify the period for which it has effect, which, under s. 116(3), must be no more than six months.

The Anti-social Behaviour, Crime and Policing Act 2014, s. 116 states:

  1. (4) A constable may require a person issued with a notice under this section to provide the constable with information about guests at the hotel.

  2. (5) The only information that a constable may require under subsection (4) is—

    1. (a) guests’ names and addresses;

    2. (b) other information about guests that—

      1. (i) is specified in regulations made by the Secretary of State, and

      2. (ii) can be readily obtained from one or more of the guests themselves.

  3. (6) A requirement under subsection (4)—

    1. (a) must be in writing;

    2. (b) must specify the period to which the requirement relates;

    3. (c) must specify the date or dates on or by which the required information is to be provided.

The period specified under paragraph (b) must begin no earlier than the time when the requirement is imposed and must end no later than the expiry of the notice under this section.

Keynote

‘Guest’ means a person who, for a charge payable by that person or another, has the use of a guest room at the hotel in question.

‘Hotel’ includes any guest house or other establishment of a similar kind at which accommodation is provided for a charge.

Section 118(1) states that an offence is committed by a person who fails without reasonable excuse to comply with a requirement imposed on the person under s. 116(4).

Section 118(2) states that an offence is committed by a person who, in response to a requirement imposed on the person under s. 116(4), provides incorrect information which the person:

  1. (a) did not take reasonable steps to verify or to have verified, or

  2. (b) knows to be incorrect.

A person does not commit an offence under s. 118(2)(a) if there were no steps that the person could reasonably have taken to verify the information or to have it verified.

These offences are punishable by a fine.

1.11.6 Offences Involving Images, Photographs and Paedophile Material

There are various offences dealing with prohibited and/or pornographic photographs and images.

1.11.6.1 Indecent Photographs

The Protection of Children Act 1978 and the Criminal Justice Act 1988 detail offences relating to the taking, possession of and distribution of indecent photographs of children. The term ‘photograph’ is common to both offences.

1.11.6.2 What is a Photograph?

Section 7 of the Protection of Children Act 1978 provides a definition of a photograph for the purposes of the Act (the same definition applies to the offence under s. 160 of the Criminal Justice Act 1988) and states:

  1. (1) The following subsections apply for the interpretation of this Act.

  2. (2) References to an indecent photograph include an indecent film, a copy of an indecent film, and an indecent photograph comprised in a film.

  3. (3) Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children and so as respects of pseudo-photographs.

  4. (4) References to a photograph include—

    1. (a) the negative as well as the positive version; and

    2. (b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.

  5. (4A) References to a photograph also include—

    1. (a) a tracing or other image, whether made by electronic or other means (of whatever nature)—

      1. (i) which is not itself a photograph or pseudo-photograph, but

      2. (ii) which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and

  6. (b) data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a);

    and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph.

  7. (5) ‘Film’ includes any form of video-recording.

  8. (6) ‘Child’, subject to subsection (8), means a person under the age of 18.

  9. (7) ‘Pseudo-photograph’ means an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph.

  10. (8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

  11. (9) References to an indecent pseudo-photograph include—

    1. (a) a copy of an indecent pseudo-photograph; and

    2. (b) data stored on a computer disc or by other electronic means which is capable of conversion into an indecent pseudo-photograph.

Keynote

‘Pseudo-photographs’ include computer images and the above offences will cover the situation where part of the photograph is made up of an adult form. The use of the Internet to facilitate such offences has led to a great deal of case law on the subject and what follows is a summary of several key decisions by the courts on these issues:

  • Downloading images from the Internet will amount to ‘making’ a photograph for the purposes of s. 1(1)(a) of the 1978 Act (R v Bowden [2001] QB 88).

  • ‘Making’ pseudo-photographs includes voluntary browsing through indecent images of children on and from the Internet. Once an image is downloaded, the length of time it remains on the screen is irrelevant (R v Smith and Jayson [2002] EWCA Crim 683).

  • In the same case the Court of Appeal held that a person receiving an unsolicited e-mail attachment containing an indecent image of a child would not commit the offence under s. 1(1)(a) by opening it if he/she was unaware that it contained or was likely to contain an indecent image. This was because s. 1(1)(a) does not create an absolute offence.

  • Copying onto a hard drive and storing ‘pop-ups’ containing indecent images of children amounts to possessing those images (R v Harrison [2007] EWCA Crim 2976).

  • If images have been deleted from a computer so that their retrieval is impossible and, at the material time, a person cannot gain access to them and the images are beyond a person’s control, that person cannot be in possession of them (R v Porter [2006] EWCA Crim 560).

  • Evidence indicating an interest in paedophile material generally along with evidence to show how a computer had been used to access paedophile news groups, chat lines etc. can be relevant to show it was more likely than not that a file containing an indecent image of a child had been created deliberately (R v Toomer [2001] 2 Cr App R (S) 8).

  • An image consisting of two parts of two different photographs taped together (the naked body of a woman taped to the head of a child) is not a ‘pseudo-photograph’. If such an image were to be photocopied it could be (Atkins v DPP [2000] 1 WLR 1427).

  • Where a defendant had knowledge that images were likely to be accessed by others, any images would be downloaded ‘with a view to distribute’ (R v Dooley [2005] EWCA Crim 3093).

1.11.6.3 Protection of Children Act 1978

Offence Indecent Photographs—Protection of Children Act 1978, ss. 1, 1A and 1B

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Protection of Children Act 1978, s. 1 states:

1 Indecent photographs of children

  1. (1) Subject to sections 1A and 1B, it is an offence for a person—

    1. (a) to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or

    2. (b) to distribute or show such indecent photographs or pseudo-photographs; or

    3. (c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or

    4. (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

  2. (2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

  3. (3)

  4. (4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—

    1. (a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or

    2. (b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.

  5. (5) References in the Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.

Keynote

A person will be a ‘child’ for the purposes of the Act if it appears from the evidence as a whole that he/she was, at the material time, under the age of 18 (Protection of Children Act 1978, s. 2(3)).

Once the defendant realises, or should realise, that material is indecent, any distribution, showing or retention of the material with a view to its being distributed will result in an offence being committed under the 1978 Act if the person depicted turns out to be a child (R v Land [1999] QB 65).

If the impression conveyed by a pseudo-photograph is that the person shown is a child or where the predominant impression is that the person is a child, that pseudo-photograph will be treated for these purposes as a photograph of a child, notwithstanding that some of the physical characteristics shown are those of an adult (s. 7(8) of the 1978 Act).

‘Distributing’ will include lending or offering to another.

Although the offences include video recordings, possession of exposed but undeveloped film (i.e. film in the form in which it is taken out of a camera) does not appear to be covered. The offence at s. 1(1)(b) and (c) of the 1978 Act can only be proved if the defendant showed/distributed the photograph etc. or intended to show or distribute the photograph etc. to someone else (R v Fellows [1997] 1 Cr App R 244 and R v T [1999] 163 JP 349). If no such intention can be proved, or if the defendant only had the photographs etc. for his/her own use, the appropriate charge would be under s. 160 of the Criminal Justice Act 1988.

Sections 1 and 2 of the Criminal Evidence (Amendment) Act 1997 apply to an offence under s. 1 of the Protection of Children Act 1978 (and to conspiracies, attempts or incitements in the circumstances set out in the 1997 Act).

A legitimate purpose for possessing such material might be where someone has the material as an exhibits officer or as a training aid for police officers or social workers.

The consent of the DPP is needed before prosecuting an offence under the Protection of Children Act 1978.

The Protection of Children Act 1978, s. 1A states:

1A Marriage and other relationships

  1. (1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph or pseudo-photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—

    1. (a) were married, or civil partners of each other or

    2. (b) lived together as partners in an enduring family relationship.

  2. (2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—

    1. (a) were married, or civil partners of each other or

    2. (b) lived together as partners in an enduring family relationship.

  3. (3) This section applies whether the photograph or pseudo-photograph showed the child alone or with the defendant, but not if it showed any other person.

  4. (4) In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph or pseudo-photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

  5. (5) In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

Keynote

There is a specific defence to offences under s. 1(1)(a), (b) and (c) of the Protection of Children Act 1978 (making, distributing or possessing with a view to distributing) where the defendant can prove that the photograph was of a child aged 16 or over, the photograph only showed the defendant and the child, and that, at the time of the offence, they were married, in a civil partnership or lived together as partners in an enduring family relationship (s. 1A). If the defendant can show these elements, then the following further conditions of the defence will apply:

  • In the case of an offence under s. 1(1)(a) (taking or permitting to be taken etc.), the defendant will have an evidential burden of showing that the child consented or that the defendant reasonably believed that the child consented to the making of the photograph (s. 1A(4)).

  • In the case of an offence under s. 1(1)(b) (distributing or showing), you must prove that the distributing or showing was to a person other than the child in the photograph (s. 1A(5)).

  • In the case of an offence under s. 1(1)(c) (possession with a view to distribution or showing etc.), the defendant will have an evidential burden of demonstrating that the image was to be shown/distributed to no person other than the child and that the child consented to the defendant’s possession of the photograph (s. 1A(6)).

The Protection of Children Act 1978, s. 1B states:

1B Exception for criminal proceedings, investigations etc.

  1. (1) In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—

    1. (a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,

    2. (b) at the time of the offence charged he was a member of the Security Service or the Secret Intelligence Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of that Service, or

    3. (c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

Keynote

There is a limited defence in relation to the making of an indecent photograph or pseudo-photograph contrary to s. 1(1)(a) of the Protection of Children Act 1978 where the defendant proves that:

  • it was necessary for the defendant to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime or for criminal proceedings in any part of the world, or

  • at the time the defendant was a member of the Security Service, Secret Intelligence Service or GCHQ (Government Communications Headquarters) and it was necessary for the exercise of any of the functions of that Service/GCHQ (s. 1B).

In order to assist police officers and prosecutors, NPCC and the CPS have published a Memorandum of Understanding. It sets out factors that will be taken into account in deciding whether the intention of someone accused of an offence under s. 1(1)(a) attracted criminal liability when ‘making’ a photograph etc. As the Memorandum points out:

This reverse burden is intended to allow those people who need to be able to identify and act to deal with such images to do so. It also presents a significant obstacle to would-be abusers and those who exploit the potential of technology to gain access to paedophilic material for unprofessional (or personal) reasons.

The purpose of the Memorandum is to reassure those whose duties properly involve the prevention, detection or investigation of this type of crime and also as a warning to others who might claim this defence having taken it upon themselves to investigate such offences. In summary the following criteria will be considered:

  • How soon after its discovery the image was reported and to whom.

  • The circumstances in which it was discovered.

  • The way in which the image was stored and dealt with, and whether it was copied.

  • Whether the person’s actions were reasonable, proportionate and necessary.

1.11.6.4 Criminal Justice Act 1988

Offence Indecent Photographs—Criminal Justice Act 1988, s. 160

  • Triable either way

  • Five years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine

The Criminal Justice Act 1988, ss. 160 and 160A state:

160 Possession of indecent photograph of child

  1. (1) Subject to section 160A, it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.

  2. (2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—

    1. (a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or

    2. (b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or

    3. (c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

160A Marriage and other relationships

  1. (1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—

    1. (a) were married, or civil partners of each other or

    2. (b) lived together as partners in an enduring family relationship.

  2. (2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—

    1. (a) were married, or civil partners of each other or

    2. (b) lived together as partners in an enduring family relationship.

  3. (3) This section applies whether the photograph or pseudo-photograph showed the child alone or with the defendant, but not if it showed any other person.

  4. (4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph or pseudo-photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

Keynote

For the meaning of ‘photograph’ and ‘pseudo-photograph’ see para. 1.11.6.2, Keynote.

A person will be a ‘child’ for the purposes of the Act if it appears from the evidence as a whole that he/she was, at the material time, under the age of 18 (Criminal Justice Act 1988, s. 160(4)).

The statutory defence under s. 160(2)(b) of the 1988 Act requires that the defendant (1) has not seen the material and (2) did not know or have any cause to suspect it was indecent. The defendant will be acquitted of the offence under s. 160 if he/she proves that (1) he/she had not seen the material and (2) did not know (and had no cause to suspect) that it was an indecent photograph of a child. This was confirmed in R v Collier [2004] EWCA Crim 1411 and arose from an argument where the material relating to children had been among other adult material that the defendant did know was indecent—he just did not know that it was an indecent photograph of a child.

1.11.6.5 Possession of Prohibited Images of Children

Offence Possession of Prohibited Images of Children—Coroners and Justice Act 2009, s. 62

  • Triable either way

  • Three years’ imprisonment on indictment and/or a fine

  • Six months’ imprisonment and/or a fine

The Coroners and Justice Act 2009, s. 62 states:

  1. (1) It is an offence for a person to be in possession of a prohibited image of a child.

  2. (2) A prohibited image is an image which—

    1. (a) is pornographic,

    2. (b) falls within subsection (6), and

    3. (c) is grossly offensive, disgusting or otherwise of an obscene character.

Keynote

An image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

An image falls within subs. (6) if it is an image which focuses solely or principally on a child’s genitals or anal region, or portrays any of the acts mentioned below. Those acts are:

  • the performance by a person of an act of intercourse or oral sex with or in the presence of a child;

  • an act of masturbation by, of, involving or in the presence of a child;

  • an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;

  • an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;

  • the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);

  • the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

Penetration is a continuing act from entry to withdrawal.

Section 62(4) of the offence states that where (as found in a person’s possession) an individual image forms part of a series of images, the question of whether it is pornographic must be determined by reference both to the image itself and the context in which it appears in the series of images. Where an image is integral to a narrative (for example, a mainstream film) which when it is taken as a whole could not reasonably be assumed to be pornographic, the image itself may not be pornographic, even though if considered in isolation the contrary conclusion might have been reached (s. 62(5)). This is related to the exclusion from the scope of the offence of certain excluded images under s. 63 of the Act.

Proceedings for an offence under s. 62(1) may not be instituted in England and Wales, except by or with the consent of the DPP.

Meaning of ‘Image’ and ‘Child’

Section 65 states that an ‘image’ includes a moving or still image (produced by any means) such as a photograph or film, or data (stored by any means) which is capable of conversion into a movable or still image such as data stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device. It should be noted that the term ‘image’ does not include an indecent photograph, or indecent pseudo-photograph, of a child as these are subject to other controls (see s. 160 of the Criminal Justice Act 1988 at para. 1.11.6.4).

A ‘child’ means a person under the age of 18 (s. 65(5)). Where an image shows a person the image is to be treated as an image of a child if the impression conveyed by the image is that the person shown is a child, or the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child (s. 65(6)).

References to an image of a person include references to an image of an imaginary person. References to an image of a child include references to an image of an imaginary child.

Defence

The Coroners and Justice Act 2009, s. 64 states:

  1. (1) Where a person is charged with an offence under section 62(1), it is a defence for the person to prove any of the following matters—

    1. (a) that the person had a legitimate reason for being in possession of the image concerned;

    2. (b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;

    3. (c) that the person—

      1. (i) was sent the image concerned without any prior request having been made by or on behalf of the person, and

      2. (ii) did not keep it for an unreasonable time.

This section sets out a series of defences to the s. 62 offence of possession of prohibited images of children.

1.11.6.6 Possession of Extreme Pornographic Images

This offence covers a more limited range of material than the Obscene Publications Act. It creates a possession offence in respect of a sub-text of extreme pornographic material which is defined in s. 63 of the Act.

Offence Possession of Extreme Pornographic Images—Criminal Justice and Immigration Act 2008, s. 63

  • Triable either way

  • Three years’ imprisonment on indictment and/or a fine (where the images contain life-threatening acts or serious injury)

  • Two years’ imprisonment on indictment and/or a fine (where the images contain acts of necrophilia or bestiality)

  • Six months’ imprisonment and/or a fine summarily

The Criminal Justice and Immigration Act 2008, s. 63 states:

  1. (1) It is an offence for a person to be in possession of an extreme pornographic image.

Keynote

There are three elements to the offence. An image must come within the terms of all three elements before it will fall foul of the offence. Those elements are:

  • that the image is pornographic;

  • that the image is grossly offensive, disgusting, or otherwise of an obscene character, and

  • that the image portrays in an explicit and realistic way, one of the following extreme acts:

    • an act which threatens a person’s life (this could include depictions of hanging, suffocation or sexual assault involving a threat with a weapon);

    • an act which results in or is likely to result in serious injury to a person’s anus, breasts or genitals (this could include the insertion of sharp objects or the mutilation of the breasts or genitals);

    • an act involving sexual interference with a human corpse (necrophilia);

    • a person performing an act of intercourse or oral sex with an animal (whether dead or alive) (bestiality);

    • an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis;

    • an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else

  • and a reasonable person looking at the image would think that the people and animals portrayed were real.

An ‘extreme pornographic image’ is an image which is both pornographic and an extreme image. An image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Section 63(4) and (5) provides that where an image is integral to a narrative (for example a documentary film) which taken as a whole could not reasonably be assumed to be pornographic, the image itself may be taken not to be pornographic even though if considered in isolation the contrary conclusion would have been reached.

An ‘image’ means either still images (such as photographs) or moving images (such as those in a film). The term also incorporates any type of data, including that stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device. The scope of the definition of image is also affected by the requirement that the persons or animals portrayed in an image must appear to be real. Therefore animated characters, sketches, paintings and the like are excluded (s. 63(8)). References to parts of the body include body parts that have been surgically constructed (s. 63(9)).

Section 64 of the Act provides an exclusion from the scope of the offence under s. 63 for classified films (by the British Board of Film Classification).

Proceedings cannot be instituted without the consent of the DPP.

General Defences

Several defences to the offence are set out in s. 65 of the Act. They are:

  • that the person had a legitimate reason for being in possession of the image; this will cover those who can demonstrate that their legitimate business means that they have a reason for possessing the image;

  • that the person had not seen the image and therefore neither knew, nor had cause to suspect, that the images held were extreme pornographic images; this will cover those who are in possession of offending images but are unaware of the nature of the images; and

  • that the person had not asked for the image—it having been sent without request—and that he/she had not kept it for an unreasonable period of time; this will cover those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it.

Defence: Participation in Consensual Acts

Section 66 of the Act provides an additional defence for those who participate in the creation of extreme pornographic images. The defence is limited and will not cover images relating to bestiality and necrophilia images that depict a real corpse.

To use the defence, a defendant must prove (on the balance of probabilities) that he/she directly participated in the act or acts portrayed in the image and that the act(s) did not involve the infliction of non-consensual harm on any person. Where the image depicts necrophilia the defendant must also prove that the human corpse portrayed was not in fact a corpse. Non-consensual harm is harm which is of such a nature that, in law, a person cannot consent to it being inflicted on him/herself, or harm to which a person can consent but did not in fact consent.

1.11.6.7 Possession of a Paedophile Manual

Offence Possession of a Paedophile Manual—Serious Crime Act 2015, s. 69

  • Triable either way—Three years’ imprisonment and/or fine

  • Six months imprisonment and/or fine

The Serious Crime Act 2015, s. 69 states:

  1. (1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.

  2. (2) It is a defence for a person (D) charged with an offence under this section—

    1. (a) to prove that (D) had a legitimate reason for being in possession of the item, and

    2. (b) to prove that—

      1. (i) D had not read, viewed or (as appropriate) listened to the item, and

      2. (ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or

    3. (c) to prove that—

      1. (i) the item was sent to D without any request made by D or on D’s behalf, and

      2. (ii) D did not keep it for an unreasonable time.

Keynote

This section creates an offence of possession of a paedophile manual, that is any item containing advice or guidance about abusing children sexually. There are a number of criminal offences that seek to prevent the possession, creation and distribution of indecent images of children, and the dissemination of obscene material. In particular:

  • s. 1 of the Protection of Children Act 1978 makes it an offence for a person to take, permit to be taken, make, distribute or show, or have in his or her possession with a view to showing or distributing any indecent photograph or pseudo-photograph of a child;

  • s. 160 of the Criminal Justice Act 1988 makes it an offence to possess an indecent photograph or pseudo-photograph of a child;

  • s. 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess extreme pornographic images; and

  • s. 62 of the Coroners and Justice Act 2009 makes it an offence to possess a prohibited image of a child.

These offences do not criminalise mere possession of material containing advice and guidance about grooming and abusing a child sexually. This offence plugs this gap in the law.

‘Abusing children sexually’ means doing anything that constitutes an offence under part 1 of the Sexual Offences Act 2003 against a person under 16 or doing anything that constitutes an offence under s. 1 of the Protection of Children Act 1978 involving indecent photographs (but not pseudo-photographs) (s. 69(8)).

The term ‘item’ has a wide meaning and includes both physical and electronic documents (e.g. emails or information downloaded to a computer) (s. 69(8)).

Section 69(2) sets out a series of defences to the offence of possession of a paedophile manual. They are the same as for other comparable offences, for example, the possession of indecent images of children under s. 160(2) of the Criminal Justice Act 1988. They are:

  • that the person had a legitimate reason for being in possession of the item; this would be a question of fact for the jury to decide on the individual circumstances of a case. It could cover, for example, those who can demonstrate that they have a legitimate work reason for possessing the item;

  • that the person had not seen (or listened to) the item in his/her possession and therefore neither knew, nor had cause to suspect, that it contained advice or guidance about abusing children sexually; and

  • that the person had not asked for the item—it having been sent without request—and that he/she had not kept it for an unreasonable period of time; this will cover those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it.

The standard of proof in making out the defence is the balance of probabilities.

Proceedings for an offence under s. 69(1) may not be instituted in England and Wales, except by or with the consent of the DPP.

1.11.7 Sexual Offences Against People with a Mental Disorder

The Sexual Offences Act 2003 is centred largely upon the fact that certain mental disorders deprive the sufferer of the ability to refuse involvement in sexual activity. This is different from, and wider than, a lack of consent at the time and focuses on the victim’s inability to refuse.

1.11.7.1 Definition of ‘Mental Disorder’

The relevant definition of a ‘mental disorder’ is that of s. 1(2) of the Mental Health Act 1983 which defines mental disorder as meaning any disorder or disability of the mind so a person with learning difficulties finds protection in the Act.

1.11.7.2 Sexual Activity with Mentally Disordered Person

Offence Sexual Activity with a Person with a Mental Disorder—Sexual Offences Act 2003, s. 30

  • If involves penetration of victim’s anus or vagina, of victim’s mouth with defendant’s penis, or of defendant’s mouth by victim’s penis—triable on indictment; life imprisonment

  • Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 30 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally touches another person (B),

    2. (b) the touching is sexual,

    3. (c) B is unable to refuse because of or for a reason related to a mental disorder, and

    4. (d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.

Keynote

A person is unable to refuse if:

  • he/she lacks the capacity to choose whether to agree to the touching (whether because of a lack of sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or

  • he/she is unable to communicate such a choice to the defendant.

(s. 30(2))

You must show that the defendant knew or could reasonably have been expected to know both that the victim had a mental disorder and that because of it (or for a reason related to it) he/she was likely to be unable to refuse. In Hulme v DPP [2006] EWHC 1347 (Admin), the Divisional Court examined a decision reached by a magistrates’ court in relation to a complainant who was a cerebral palsy sufferer with a low IQ (aged 27). The magistrates’ court had decided that the complainant was unable to refuse to be touched sexually; the Divisional Court agreed and the conviction against the defendant (who was 73) was upheld.

If the defendant obtains the victim’s agreement to sexual touching by means of any inducement (offered or given), or a threat or deception for that purpose, the defendant commits a specific (and similarly punishable) offence under s. 34. An example would be where the defendant promises to give the victim some reward in exchange for allowing sexual touching. If the defendant uses an inducement, threat or deception to cause the victim to engage in or agree to engage in sexual activity, there is a further specific offence (similarly punishable) under s. 35.

In these specific cases of inducements, threats or deception there is still the need to prove that the defendant knew (or could reasonably have been expected to know) of the victim’s mental disorder but no need to prove that the victim was unable to refuse.

Causing or inciting a person with a mental disorder impeding choice to engage in sexual activity with another person generally (i.e. without threats, inducements or deception) is a separate offence, punishable in the same way, under s. 31. As that is an ‘incomplete’ or unfinished offence (as to which see chapter 1.3) it is not necessary to prove that the sexual activity took place.

1.11.7.3 Sexual Activity in Presence of Mentally Disordered Person

Offence Sexual Activity in Presence of a Person with a Mental Disorder—Sexual Offences Act 2003, s. 32

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 32 states:

  1. (1) A person (A) commits an offence if—

    1. (a) he intentionally engages in an activity,

    2. (b) the activity is sexual,

    3. (c) for the purpose of obtaining sexual gratification, he engages in it—

      1. (i) when another person (B) is present or is in a place from which A can be observed, and

      2. (ii) knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it,

    4. (d) B is unable to refuse because of or for a reason related to a mental disorder, and

    5. (e) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.

Keynote

For the requirements in proving the victim’s inability to refuse see the previous offence under s. 30.

‘Observation’ includes direct observation or by looking at any image (s. 79(7)).

If the victim agrees to be present or in the place referred to in s. 32(1)(c)(i) because of any inducement (offered or given), or a threat or deception practised by the defendant for that purpose, the defendant commits a specific (and similarly punishable) offence under s. 36. For instance where the defendant pays the mentally disordered person to stay in a particular place while the activity occurs. In these specific cases of inducements, threats or deception there is still the need to prove that the defendant knew (or could reasonably have been expected to know) of the victim’s mental disorder but no need to prove that the victim was unable to refuse.

1.11.7.4 Causing Person with Mental Disorder to Watch Sexual Act

Offence Causing a Person with a Mental Disorder to Watch a Sexual Act—Sexual Offences Act 2003, s. 33

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 33 states:

  1. (1) A person (A) commits an offence if—

    1. (a) for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,

    2. (b) the activity is sexual, and

    3. (c) B is unable to refuse because of or for a reason related to a mental disorder, and

    4. (d) A knows or could reasonably be expected to know that B has a mental disorder and that because of it or for a reason related to it B is likely to be unable to refuse.

Keynote

The above offence is concerned with intentionally causing a person with a mental disorder to watch a third person engaging in such activity or to look at an image of a person engaging in such activity. ‘Image’ includes a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image (s. 79(4); it also includes images of an imaginary person (s. 79(5))).

If the victim agrees to watch or look because of any inducement (offered or given), or a threat or deception practised by the defendant for that purpose, the defendant commits a specific (and similarly punishable) offence under s. 37. For example, where the defendant (with the appropriate motive) deceives the mentally disordered person into watching a film which is actually a live video feed of sexual activity. In these specific cases of inducements, threats or deception there is still the need to prove that the defendant knew (or could reasonably have been expected to know) of the victim’s mental disorder but no need to prove that the victim was unable to refuse.

1.11.8 Sexual Displays and Voyeurism

There are several offences that involve sexual ‘displays’ of some description and of voyeurism.

1.11.8.1 Indecent Exposure

Offence Outraging Public Decency—Common Law

  • Triable either way

  • Unlimited powers of sentence on indictment

  • Six months’ imprisonment and/or a fine summarily

It is an offence at common law to commit an act of a lewd, obscene or disgusting nature and outrage public decency.

Keynote

This offence is committed by the deliberate commission of an act that is, per se, lewd, obscene or disgusting (R v Rowley [1991] 1 WLR 1020). If an act is not lewd, obscene etc. the motives or intentions of the defendant cannot make it so. Therefore, where the defendant’s acts involved leaving messages that were not in themselves obscene in public toilets, his motives (to induce young boys to engage in gross indecency with him) did not bring his actions under this offence (Rowley). In Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435, Lord Simon said that ‘outraging public decency’ goes considerably beyond offending the sensibilities of, or even shocking, reasonable people and that the recognised minimum standards of decency were likely to vary from time to time.

The offence can be committed by exposing the penis or engaging in simulated sexual acts (R v Mayling [1963] 2 QB 717); it is not restricted to offences committed by men.

The act must be committed where it might be seen by the public generally and it must be shown that more than one person could have seen the act take place (R v Walker [1996] 1 Cr App R 111).

It is not necessary to prove that someone was in fact annoyed or insulted (R v May (1990) 91 Cr App R 157).

Offence Exposure—Sexual Offences Act 2003, s. 66

  • Triable either way

  • Two years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 66 states:

  1. (1) A person commits an offence if—

    1. (a) he intentionally exposes his genitals, and

    2. (b) he intends that someone will see them and be caused alarm or distress.

Keynote

There is no requirement that the defendant acted for sexual gratification and simply exposing the genitals out of loutish behaviour will suffice if the other ingredients are present.

The offence is not restricted to public places and there is no need to show that anyone saw the genitals or was alarmed or distressed. The offence only applies to the genitals, not the buttocks, so the act of ‘mooning’ will not be covered. A woman who exposes her breasts will not be guilty of an offence under s. 66.

1.11.8.2 Voyeurism

Offence Voyeurism—Sexual Offences Act 2003, s. 67

  • Triable either way

  • Two years’ imprisonment on indictment

  • Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 67 states:

  1. (1) A person commits an offence if—

    1. (a) for the purpose of obtaining sexual gratification, he observes another person doing a private act, and

    2. (b) he knows that the other person does not consent to being observed for his sexual gratification.

  2. (2) A person commits an offence if—

    1. (a) he operates equipment with the intention of enabling another person to observe, for the purpose of obtaining sexual gratification, a third person (B) doing a private act, and

    2. (b) he knows that B does not consent to his operating equipment with that intention.

  3. (3) A person commits an offence if—

    1. (a) he records another person (B) doing a private act,

    2. (b) he does so with the intention that he or a third person will, for the purpose of obtaining sexual gratification, look at an image of B doing the act, and

    3. (c) he knows that B does not consent to his recording the act with that intention.

Keynote

A person is doing a private act if he/she is in a place which, in the circumstances, would reasonably be expected to provide privacy, and:

  • his/her genitals, buttocks or breasts are exposed or covered only with underwear

  • he/she is using a lavatory, or

  • he/she is doing a sexual act that is not of a kind ordinarily done in public (s. 68).

The word ‘breasts’ does not extend to the exposed male chest (R v Bassett [2008] EWCA Crim 1174).

The three activities described above require proof that the victim does not consent to the observing, recording or operating of the relevant equipment for the purpose of the defendant’s or another’s sexual gratification (i.e. the victim might have consented to being observed, recorded etc. for other reasons).

The first offence involves a defendant observing another doing a private act (which will include looking at an image: s. 79(5)) with the relevant motive of gaining sexual gratification.

The second offence deals with people operating equipment such as hoteliers using webcams to enable others to view live footage of the residents for the sexual gratification of those others. There is no need to show that defendants intended to gain sexual gratification themselves.

The third offence deals with the recording of the private act with the intention that the person doing the recording or another will look at the image and thereby obtain sexual gratification. It does not matter that those who eventually look at the recording know that the victim did not consent, though all elements of the offence would be corroborated by the accompanying material (e.g. the descriptions of the pages on an internet website). In R v Turner [2006] EWCA Crim 63 the defendant (the manager of a gym) had recorded images of women showering and using the sun beds. The court regarded this as an abuse of the defendant’s position of trust which took him ‘over the custodial threshold’ and he was sentenced (following an appeal) to nine months’ imprisonment.

There is also a specific offence under s. 67(4) of installing equipment or adapting structures (e.g. drilling peepholes) with the intention of committing the first offence themselves or enabling others to do so. Structures will include tents, vehicles or vessels or other temporary or movable structures.

The restricted wording of s. 67(4) appears not to cover the situation where the defendant installs equipment to record the private act (under s. 67(2)) rather than observing it live.

These offences do not extend to activities such as, for example, covertly filming up women’s skirts as they go about the public act of shopping.

1.11.8.3 Sexual Activity in a Public Lavatory

Offence Sexual Activity in a Public Lavatory—Sexual Offences Act 2003, s. 71

  • Triable summarily

  • Six months’ imprisonment and/or a fine

The Sexual Offences Act 2003, s. 71 states:

  1. (1) A person commits an offence if—

    1. (a) he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,

    2. (b) he intentionally engages in an activity, and,

    3. (c) the activity is sexual.

Keynote

This offence will apply to any lavatory to which the public or a section of it has access. For the purposes of this offence only, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider it to be sexual.

1.11.9 Preparatory Offences

There are specific provisions to prevent substantive offences from happening.

1.11.9.1 Administering Substance with Intent

Offence Administering Substance with Intent—Sexual Offences Act 2003, s. 61

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 61 states:

  1. (1) A person commits an offence if he intentionally administers a substance to, or causes a substance to be taken by, another person (B)—

    1. (a) knowing that B does not consent, and

    2. (b) with the intention of stupefying or overpowering B, so as to enable any person to engage in a sexual activity that involves B.

Keynote

This offence is aimed at the use of ‘date rape’ drugs administered without the victim’s knowledge or consent but would also cover the use of any other substance with the relevant intention. It would cover A spiking B’s soft drink with alcohol where B did not know he/she was consuming alcohol, but it would not cover A encouraging B to get drunk so that A could have sex with B, where B knew he/she was consuming alcohol.

The substance could be injected or applied by covering the victim’s face with a cloth impregnated with the substance.

This offence applies both when A him/herself administers the substance to B, and where A causes the substance to be taken by B, for example when A persuades a friend (C) to administer a substance to B, so that A can have sex with B, because C knows B socially and can more easily slip the substance into B’s drink than A.

However, the intended sexual activity need not involve A. In the example given above it could be intended that C or any other person would have sex with B.

The term ‘sexual’ used in this section in the phrase ‘sexual activity’ is defined in s. 78 of the Act (see para. 1.11.3.2).

The sexual activity in this offence could involve A having sexual intercourse with or masturbating B; could involve A causing B to commit a sexual act upon him/herself (e.g. masturbation); or could involve B and a third party engaging in sexual activity together, regardless of whether the third party has administered the substance. This is an offence of intent rather than consequence so there is no need for the victim to be stupefied or overpowered or for the sexual activity to take place, for example because a friend of B saw what was happening and intervened to protect B.

1.11.9.2 Committing Criminal Offence with Intent to Commit a Sexual Offence

Offence Committing Criminal Offence with Intent to Commit a Sexual Offence—Sexual Offences Act 2003, s. 62

  • Where the offence committed is kidnapping or false imprisonment—triable on indictment only: life imprisonment

  • Otherwise triable either way: 10 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 62 states:

  1. (1) A person commits an offence under this section if he commits any offence with the intention of committing a relevant sexual offence.

Keynote

‘Relevant sexual offence’ means an offence under part I of the Act (virtually all regularly occurring sexual offences) including aiding, abetting, counselling or procuring such an offence (s. 62(2)). It does not extend to other sexual offences under the Protection of Children Act 1978.

It is designed to deal with the commission of any criminal offence where the defendant’s intention is to commit a relevant sexual offence. This would cover an array of possible circumstances where the defendant’s ulterior motive in committing the first offence is to carry out the relevant sexual offence. It would apply, for example, where A kidnaps B so that A can rape B but is caught by the police before committing the rape. It would also apply where A detained B in his/her flat with this intention, or assaulted B to subdue him/her so that A could more easily rape B.

There is no express requirement for there to be any immediate link in time between the two offences. It could cover any situation from the theft of drugs or equipment to be used in the course of the sexual offence and going equipped for burglary, to the taking of a vehicle or even dangerous driving with the intention in each case of committing the further relevant sexual offence.

If A does commit the intended offence, he/she could be charged with the substantive sexual offence in addition to this offence.

1.11.9.3 Trespass with Intent to Commit Sexual Offence

Offence Trespass with Intent to Commit a Relevant Sexual Offence—Sexual Offences Act 2003, s. 63

  • Triable either way

  • 10 years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 63 states:

  1. (1) A person commits an offence if—

    1. (a) he is a trespasser on any premises,

    2. (b) he intends to commit a relevant sexual offence on the premises, and

    3. (c) he knows that, or is reckless as to whether, he is a trespasser.

Keynote

For ‘relevant sexual offence’ see para. 1.11.9.2.

A person is a trespasser if they are on the premises without the owner or occupier’s consent, whether express or implied or they are there without a power at law to be there. Generally, defendants ought to know whether they are trespassing or not and recklessness will be enough in that regard.

Premises here will include a structure or part of a structure (including a tent, vehicle or vessel or other temporary or movable structure (s. 63(2)).

This offence is intended to capture, for example, the situation where A enters a building owned by B, or goes into B’s garden or garage without B’s consent, and A intends to commit a relevant sexual offence against the occupier or other person on the premises.

The offence applies regardless of whether or not the substantive sexual offence is committed.

A will commit the offence if he/she has the intent to commit a relevant sexual offence at any time while he/she is a trespasser. The intent is likely to be inferred from what the defendant says or does to the intended victim (if there is one) or from items in possession of the defendant at the time he/she commits the trespass (e.g. condoms, pornographic images, rope etc.).

A separate offence is needed to cover trespass (as opposed to relying on s. 62) because trespass is a civil tort and not a criminal offence.

The defendant must intend to commit the relevant offence on the premises.

1.11.10 Offences Outside the United Kingdom

Section 72(1) of the Sexual Offences Act 2003 makes it an offence for a UK national to commit an act outside the United Kingdom which would constitute a relevant sexual offence if done in England and Wales.

1.11.11 Offences Relating to Prostitution

There are numerous offences connected with prostitution. This section begins with the definition of a prostitute before examining some of those offences.

1.11.11.1 Definition of a Prostitute

The Sexual Offences Act 2003 defines prostitution and provides that a prostitute is a person (A) who:

  • on at least one occasion and

  • whether or not compelled to do so,

  • offers or provides sexual services to another person

  • in return for payment or a promise of payment to A or a third person

(s. 51(2)).

This definition applies to both men and women.

Offence Causing, Inciting or Controlling Prostitution—Sexual Offences Act 2003, s. 52

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

1.11.11.2 Offence of Causing, Inciting or Controlling Prostitution

The Sexual Offences Act 2003, s. 52 states:

  1. (1) A person commits an offence if—

    1. (a) he intentionally causes or incites another person to become a prostitute in any part of the world, and

    2. (b) he does so for or in the expectation of gain for himself or a third person.

The Sexual Offences Act 2003, s. 53 states:

  1. (1) A person commits an offence if—

    1. (a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and

    2. (b) he does so for or in the expectation of gain for himself or a third person.

Keynote

Where the victim is under 18, the specific offence under s. 48 should be considered (see para. 1.11.5.8).

The first offence above is concerned with intentional causing or inciting, the latter being an incomplete offence (see chapter 1.3).

The second offence above addresses those who intentionally control the activities of prostitutes (pimps).

Unlike the offence involving persons under 18, you must show the defendant acted for, or in the expectation of, gain for him/herself or another. Gain means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount or the goodwill of any person which is or appears likely, in time, to bring financial advantage (s. 54). This definition covers the actions of someone who hopes to build up a relationship with, say, a drug dealer who will eventually give the defendant cheaper drugs as a result of his/her activities. Although you do not need to show that money, goods or financial advantage actually passed to the defendant, you must show that he/she wanted or at least expected that someone would benefit from the conduct.

1.11.11.3 Paying for Sexual Services of a Prostitute Subjected to Force

Offence Paying for Sexual Services of a Prostitute Subjected to Force—Sexual Offences Act 2003, s. 53A

  • Triable summarily

  • Fine

The Sexual Offences Act 2003, s. 53A states:

  1. (1) A person (A) commits an offence if—

    1. (a) A makes or promises payment for the sexual services of a prostitute (B),

    2. (b) a third person (C) has engaged in exploitative conduct of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and

    3. (c) C engaged in that conduct for or in the expectation of gain for C or another person (apart from A or B).

  2. (2) The following are irrelevant—

    1. (a) where in the world the sexual services are to be provided and whether those services are provided,

    2. (b) whether A is, or ought to be, aware that C has engaged in exploitative conduct.

  3. (3) C engages in exploitative conduct if—

    1. (a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or

    2. (b) C practises any form of deception.

Keynote

This offence is committed if someone pays or promises payment for the sexual services of a prostitute who has been subject to exploitative conduct of a kind likely to induce or encourage the provision of sexual services for which the payer has made or promised payment. The person responsible for the exploitative conduct must have been acting for or in the expectation of gain for him/herself or another person, other than the payer or the prostitute.

It does not matter where in the world the sexual services are to be provided. An offence is committed regardless of whether the person paying or promising payment for sexual services knows or ought to know or be aware that the prostitute has been subject to exploitative conduct. In other words the offence is one of strict liability and no mental element is required in respect of the offender’s knowledge that the prostitute was forced, threatened, coerced or deceived.

1.11.11.4 Brothels

There are several summary offences aimed at landlords, tenants and occupiers of premises used as brothels (ss. 34 to 36 of the Sexual Offences Act 1956).

Offence Keeping a Brothel Used for Prostitution—Sexual Offences Act 1956, s. 33A

  • Triable either way

  • Seven years’ imprisonment on indictment

  • Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 1956, s. 33A states:

  1. (1) It is an offence for a person to keep, or to manage, or act or assist in the management of, a brothel to which people resort for practices involving prostitution (whether or not also for other practices).

Keynote

A brothel is a place to which people resort for the purposes of unlawful sexual intercourse with more than one prostitute; it is not necessary that full sexual intercourse takes place or is even offered. Homosexual activity is as capable as heterosexual activity of founding the existence of a brothel. A massage parlour where other acts of lewdness or indecency for sexual gratification are offered may be a brothel.

Prostitution means offering or providing sexual services, whether under compulsion or not, to another in return for payment or a promise of payment to the prostitute or a third person (s. 51(2)).

Offence Keeping a Disorderly House—Common Law

  • Triable on indictment

  • Unlimited sentence

It is an offence at common law to keep a disorderly house.

Keynote

To prove this offence you must show that the house is ‘open’ (i.e. to customers); that it is unregulated by the restraints of morality; and that it is run in a way that violates law and good order (R v Tan [1983] QB 1053).

There must be ‘knowledge’ on the part of the defendant that a house is being so used (Moores v DPP [1992] QB 125).

The offence also requires some persistence and will not cover a single instance, e.g. of an indecent performance.

1.11.11.5 Soliciting

Offence Soliciting by Persons—Street Offences Act 1959, s. 1

  • Triable summarily

  • Fine

The Street Offences Act 1959, s. 1 states:

  1. (1) It shall be an offence for a person aged 18 or over whether male or female persistently to loiter or solicit in a street or public place for the purpose of prostitution.

  2. (2)

  3. (3) Repealed

  4. (4) For the purposes of this section:

    1. (a) conduct is persistent if it takes place on two or more occasions in any period of three months;

    2. (b) any reference to a person loitering or soliciting for the purposes of prostitution is a reference to a person loitering or soliciting for the purposes of offering services as a prostitute.

Keynote

This offence is committed only by those offering services as a prostitute, not by those receiving such services (those receiving services may however be committing ‘soliciting’ offences as below).

Instead of a fine, the court may make a rehabilitative order against a person convicted of the soliciting by persons offence (s. 1(2A) of the Street Offences Act 1959, as amended).

A ‘street’ includes any bridge, road, lane, footway, subway, square, court, alley or passage, whether a thoroughfare or not, which is for the time being open to the public; and the doorways and entrances of premises abutting on a street and any ground adjoining and open to a street. ‘Public place’ is not defined.

The person ‘soliciting’ need not be in a public place provided the solicitation extends into the public place.

’Loitering’ is simply lingering with no intent to move on either on foot or in a vehicle.

Offence Soliciting by ‘Kerb-crawling’—Sexual Offences Act 2003, s. 51A

  • Triable summarily

  • Fine

The Sexual Offences Act 2003, s. 51A, (as amended) states:

  1. (1) It is an offence for a person in a street or public place to solicit another (B) for the purpose of obtaining B’s sexual services as a prostitute.

  2. (2) The reference to a person in a street or public place includes a person in a vehicle in a street or public place.

Keynote

Kerb-crawling or soliciting is punishable on the first occasion the activity takes place. In the case of kerb-crawling, there is no requirement for the soliciting to be shown to be likely to cause nuisance or annoyance to others.

The term ‘street’ is as per the definition given in the Keynote above. ‘Public place’ is not defined.