Helen Longworth from the 9SJS Criminal Team summarises the recent case of R v BNE  EWCA Crim 1242 on disclosure of images in "decoy" child sex offences.
In R v BNE  EWCA Crim 1242, the Court of Appeal ruled that, in sexual communications offences cases where a decoy has sent pictures of "themselves" to the accused, the Crown must disclose, if the image is sent unaltered, the true age of the person photographed, or, if the image is modified or manufactured, that fact. The applicable facts should be included in the evidence and a judicial direction given.
The facts of the case are redacted and covered by reporting restrictions but are, broadly, all too familiar to those who work on cases involving attempted sexual communications with a child and decoy profiles. An undercover officer set up a profile that stated the user was 18 but, in correspondence, referred to her age as 14 and going to school. The conversation became quickly sexualised, led by the defendant. The defendant’s case that he always believed that this was a role play fantasy and, alongside the language and cultural references, he noted that pictures of the user that were sent included that her face was partially obscured and that he believed the person in them to be a young woman aged 19 or over.
The images had been shown as print outs during the trial. The defence had requested disclosure of the age of the person shown in the images, on the basis that it would both support his reasonable belief that she was an adult, and that it would be unfair if the jury were led to believe she was underage when in fact she was an adult. The prosecution refused to provide the age of the person shown in the images.
Following a public interest immunity (PII) hearing, the trial judge ruled that it was prima facie disclosable but there was a public interest in not disclosing the information. The defendant faced trial without the information and was convicted.
The appeal was based on the disclosure point. The appellant submitted that the true age of the person in the photographs was relevant to his reasonable belief in her age, that it was potentially unfair to refuse to disclose the age, and that the sensitivity had already been compromised as the officer had sent the images to the appellant. The appellant also noted that the Crown did not follow the PII procedure required under rule 15.30 of the Criminal Procedure Rules.
The Crown submitted that the age of the person depicted was irrelevant to the issues so could not meet the disclosure test, or that there was a public interest reason against disclosure, or that the conviction was nevertheless safe due to the other evidence against the appellant.
The court agreed that there is a strong public interest in protecting the anonymity of undercover police officers performing these types of operational duties. As set out in R v Ishaqzai  EWCA Crim 222, the court noted that the Crown can prove the mental element of the sexual communications offences by making the jury sure that the defendant did not believe X to be 16 or over or by proving that any belief that she was 16 or over was not reasonable. The point of dispute in BNE was that the appellant said that the true age of the person in the pictures was relevant because, even though the appellant wouldn’t have known it when the correspondence was happening, the jury could properly take it into account when considering whether his belief was reasonable. The Crown contended that it was irrelevant as the appellant would not have and did not know it during the time of the correspondence.
From paragraph 22 of the judgement, the court considered decoy operations generally. The jury would know from the outset that the decoy was in fact an adult. The court accepted the appellant’s point that “a jury, shown images such as were used in this case and given no information about their provenance, may well assume that the images are accurate photographs and true likenesses of a real person of the age stated in the decoy profile, or at any rate a real person aged under 16” and that the speculation direction does not sufficiently guard against them making this assumption. The jury may incorrectly think that it is a legitimate inference to draw that the person in the photographs was under 16. The court also accepted that, if that assumption was made and was factually incorrect, that could unfairly prejudice a defendant.
The court considered two situations which may arise.
- First, when an unaltered image of a real person aged 16 or over was sent to the defendant, their true age at the time the photograph was taken should be disclosed to the defence. It is disclosable because the jury can take account of the fact that the image did show a person aged 16 or over when considering whether the defendant’s belief was reasonable.
- Second, when an image has been digitally created, altered or modified, then the age of the person in the original unaltered image is not relevant. The Crown do not have to disclose the true age of the person originally photographed but do need to inform the defence that the images have been “digitally manufactured, altered or modified so as to make, for the purpose of the decoy profile, images which are not a true likeness of any real person who may originally have been photographed.” The court was satisfied that, “to that very limited extent, it will be necessary in the interests of justice to disclose one aspect of the investigative techniques which must otherwise remain confidential.” (paragraph 28)
The court envisaged both situations could be dealt with by admissions and a judicial direction that, “there is no evidence about the true age of any person shown in the images; that there is no evidence about what was done to manufacture, alter or modify them; that they must not speculate about those matters, because they are not relevant to the jury's verdicts; and that they must concentrate on the evidence of the material – the messages and the images – which the defendant received.” (paragraph 29)
The appeal was allowed on the basis that the failure to disclose the information as required in the facts of the case, the jury may have assumed that the images were a true likeness of a real girl aged 14 at the time she was photographed. A retrial was ordered.
The impact of BNE is that both parties must be very clear what the issues in the case are and aware of any images that have been sent. This case involved an undercover police officer but there are many similar cases that involve members of the public acting as a decoy in which the images seen by a defendant are not disclosed. It is easily conceivable that the Crown may not be able to verify the age of the person in a decoy image sent, or even whether or not it was modified so that it is unclear which situation applies. A failure in this regard when it is material relevant to the issues in the case, as it is likely to be in a role play defence, may be fatal to a case if the Crown cannot adequately comply with the disclosure requirements.