CRIME — Sexual offences — Attempt to cause or incite child under 13 to engage in sexual activity — Entrapment — Undercover police officer posing as child — Defendant inciting police officer to sexual activity — Whether substantive offence requiring incitement of identifiable child — Whether defendant entrapped into committing offence — Sexual Offences Act 2003 (c 42), s 8
R v Jones [2007] EWCA Crim 1118
CA: Thomas LJ, Penry-Davey and Wyn Williams JJ: 15 May 2007
The offence of intentionally causing or inciting a child under 13 to engage in sexual activity contrary to s 8 of the Sexual Offences Act 2003 could be committed by a person even though it was not possible to identify any specific or identifiable child to whom the incitement was addressed.
The Court of Appeal (Criminal Division) so held when dismissing an appeal by the defendant, Ian Anthony Jones, against his conviction, following a guilty plea, on 25 April 2006 by the Crown Court at Lewes (Judge Niblett) for attempting to intentionally cause or incite a child to engage in sexual activity in contravention of s 8 of the 2003 Act, contrary to s 1(1) of the Criminal Attempts Act 1981.
S 8 of the 2003 Act provides: “(1) A person commits an offence if—(a) he intentionally causes or incites another person (B) to engage in an activity, (b) the activity is sexual, and (c) B is under 13.”
The defendant wrote graffiti on train and station toilets seeking girls aged 8 to 13 for sex in return for payment, requesting contact via his mobile telephone number. Following a complaint, the police began an undercover operation using an officer pretending to be aged 12. The defendant was charged, inter alia, with attempting to incite her to sexual activity. At trial the defendant applied to stay the proceedings as an abuse of process on the grounds that he had been entrapped into committing the offence, and the charge disclosed no offence known to law, because the defendant did not intend to incite any actual person under the age of 13 and therefore could not have had the requisite intent.
THOMAS LJ, giving the judgment of the court, said that the offence under s 8 of the 2003 Act did not require incitement of an identified or identifiable child. The criminality at which the offence was directed was the incitement. It mattered not that this was directed at a particular child, a very large group of children or whether they could be identified or not. There was no significance in the use of the term “another” in s 8 as opposed to “any other”; they meant the same. The offence could be committed by someone who, with requisite intention, made a statement which in specific terms directly incited a child or children. Therefore the offence could have been charged without identifying a particular person, and it could not be said that the police created the offence. The police did not instigate the offence and did no more than merely provide the opportunity for the defendant to attempt to commit an offence similar to one he had attempted earlier, and provide the evidence necessary for a conviction. The defendant’s acts were more than merely preparatory and done with the intention of committing the offence. The fact that commission of the actual offence was on the true facts impossible because the police substituted an adult for a child did not mean that there was a defence in law to the charge.
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