Jan 4, 2017

Trafficking for the Purposes of Sexual Exploitation

R v PC and Ors (2015) Reported case following decision by the Court of Appeal into Sexual Exploitation, Indecent Images and Revenge Pornography.   

The case itself commenced with an extensive police investigation carried out into sexual exploitation said to have been committed by young male members of the travelling community.  This resulted in an 82 count indictment charging 23 separate defendants.  There were allegations of a range of offences including rape, trafficking, assault by penetration, and making indecent photographs of a child.  The vast majority of the offences were alleged to have been committed against one particular complainant, L, who was aged 15 at the time of the offences. Clearly the 82 count indictment was not triable in that form.  Accordingly the allegations were divided into at least three trials. The first trial involved a 40 count indictment, concerning 8 defendants.  It took place between January and March of this year, and ended with a ruling by the judge that there was no case to answer in respect of 7 of those defendants.  The complainant was held to be an inherently unreliable witness.  Her evidence had been fundamentally contradicted by other witnesses, she was shown to have told extensive and provable lies on oath, and had attempted to persuade a prosecution witness to lie on her behalf.  There was no appeal against that ruling. 

All of the counts tried on that 40 count indictment were of contact sexual offences and did not involve indecent photographs. As a result of that ruling, the Crown decided to abandon L as a prosecution witness.  It would not rely in any future trial on a count which was based partly or solely on her testimony.  The effect of this decision was that all contact sexual offences in the prosecution as a whole were brought to an end. Following the ruling of 10th March 2016 the prosecution decided that it would prosecute defendants where indecent images of L had been recovered from mobile phones.  There had been indecent image counts on the original 82 count indictment.  Those counts were based on the complainant's testimony, but as already stated, these had not been tried on the 40 count indictment.  The Crown had in fact served evidence prior to the trial showing that some defendants’ mobile phones contained indecent images of the same activity, but, since it had been served relatively late, decided not to rely on it at the first trial. 

Having reviewed the matter after the first trial, the Crown decided to prefer a 15 count indictment against 10 defendants, bringing charges of making an indecent photograph of a child contrary to Section 1(1)(a) of the Protection of Children Act 1978 (“the 1978 Act”).  The complainant was not to be called as a witness, although she was depicted in virtually all of the images or films identified.  The Crown intended to prove those counts solely by reference to what could be seen on the various mobile phones.  Lengthy submissions were made to the trial judge that for the Crown to proceed would be an abuse of process.  A core submission was that the defendants could not have a fair trial unless the complainant gave evidence.  In any event it was submitted that the Crown was seeking to have a second bite of the cherry, having lost the first trial.  Additional arguments were raised in support.  They included arguments relating to the mens rea of the Section 1(1)(a) offence, whether a decision to prosecute was disproportionate in view of the likely sentence, and whether it was wrong to prosecute defendants under the age of 18 for offences against the complainant.  On 26 May 2016 the judge upheld the defence submissions ordering that the proposed indictment should be stayed. Four of them, PW, PC, LD and BC, appeared on the original 82 count indictment, and were not tried on the 40 count indictment, but had featured in counts brought under Section 1(1)(a) which had been intended to be tried after the trial of the 40 count indictment. 

What the Crown proposed to do was to bring these 8 respondents together on a single indictment containing indecent image counts in relation to the complainant and to prove its case primarily by reference to images recovered from mobile phone.  These were images in the form of photographs and videos depicting her engaging in various sexual activities with some respondents, photographed by another respondent.  The Crown had indicated its intention to take this course very shortly after the judge’s ruling of 10th March and lodged with the court by electronic means its proposed 15 count indictment which drew on the sources identified above.  But for the abuse application, the Crown would have made applications to bring the respondents together on a single indictment to deal with any existing indictments, and to amend, within the new indictment, counts which had featured in the existing indictments.  In the event no rulings were made on those applications because the judge brought the proceedings to a halt by granting a stay.  As already stated the judge upheld the defence submissions and stayed the proposed indictment which had been lodged electronically with the Court, under the new better case management regime. 

The Crown sought time in which to mount an appeal.  The judge granted an adjournment.  On the 2nd June 2016 Counsel, who then represented the Crown, informed the Court of the Crown’s intention to appeal and gave the necessary undertaking pursuant to Section 58(8).  It is highly regrettable that, having been granted an adjournment of about a week, counsel did not return to the court with grounds of appeal prepared.  Nothing was provided in writing either to the judge or to the respondents.  This meant that after the Crown informed the court of its intention to appeal it required further time to formulate its grounds.  Leading counsel was then replaced by different counsel who in some respects did not share his predecessor’s views about the proposed appeal. 

 What followed thereafter was judgement by the court in respect of the primary and secondary creation of images for the purposes of social media. The Court of Appeal allowed the Crown's submissions and referred the case back to the presiding judge for sentence.  

Following mitigation the defendant was sentenced to a conditional discharge and no notification requirements under the Sexual Offences legislation   






Branch Partner