The defendant corresponded on social media with an undercover police officer who used the profile, which included a picture, of a girl aged 18 but she told him she was aged 14. After exchanging sexualised images and messages in which the defendant encouraged her to engage in a sexual act, he was arrested and charged with attempted sexual communication with a child contrary to section 15A of the Sexual Offences Act 2003 (count 1) and section 1(1) of the Criminal Attempts Act 1981 and attempting to incite a child to engage in sexual activity contrary to section 10 of the 2003 Act and section 1(1) of the 1981 Act (count 2). His case was that he believed at all times that he was communicating with an adult on an adult social media platform who was pretending to be 14 as part of a role-playing fantasy. He relied, inter alia, on the complainant’s profile picture and the images she provided which he contended depicted what he believed to be a woman of between 19 and 23 shown with her face partially obscured which he regarded to be consistent with his belief she was an adult engaged in role play. In advance of the trial, defence counsel was shown the four images the complainant had sent to the defendant but requested the true age of the person shown in the images on the basis that (i) if the person pictured was a young adult it would support the defendant’s case and undermine that of the Crown, and (ii) it would be unfair for the jury to be led to believe that the person depicted was underage if she was over the age of consent. The judge ruled that although the age of the person was prima facie disclosable, in light of the Crown’s submissions at a PII hearing the information ought not to be disclosed. The trial proceeded and the four photos purporting to depict the complainant went before the jury. The defendant was convicted and appealed against conviction on the ground that the judge’s refusal to disclose the true age of the person shown in the images the complainant sent the defendant which were at the centre of the two counts and the trial was potentially unfair being an important consideration for the jury when considering the reasonableness of the defendant’s belief.
On the appeal—
Held, appeal allowed. (i) Where the relevant image was an unaltered photograph of a real person aged 16 or over when photographed, the Crown should disclose the actual age of the person shown at the time when the photograph was taken rather than the mere fact that the person was aged 16 or over. That was because the true age of the person depicted was capable of undermining the Crown’s case and/or assisting that of the defence. It would often be convenient to adduce that in evidence before the jury. They could take properly the fact that the image was a true likeness and an accurate portrayal of a real person aged 16 or over into account when assessing whether a defendant might have believed that he was corresponding with someone aged 16 or over and/or whether such a belief was reasonable. The jury should not be misled by being shown images in circumstances which might give rise to an incorrect assumption about the age of the person depicted. (ii) Where the images had been digitally created, altered or modified to ensure consistency with the decoy profile, the purpose and effect of that was to create an artificial image or alter the appearance of the person photographed so that it ceased to be a true likeness and the true age and original appearance was of no relevance. The jury were not to be diverted into an examination of the skill with which the digital manufacture of the image had been carried out. Their focus had to be on the images the defendant had seen not on different images he had not seen. Accordingly, the Crown’s duty of disclosure did not extend to disclosing the true age of any real person originally photographed. It would generally be appropriate for that limited statement of fact to be adduced in evidence before the jury as an admission of fact. It would usually be necessary for the jury to hear evidence of the fact that the images were manufactured, altered or modified to fit the decoy profile. Where that fact was in evidence, the trial judge should direct the jury there was no evidence about what was done to manufacture, alter or modify them, they should not speculate about those matters because they were not relevant to their verdicts and they had to concentrate on the evidence of the messages and images the defendant received. In the present case, the issue was not argued as fully as it should have been and the judge did not address the issue of disclosure appropriately. The Crown neither identified the case as falling into the first category or provided the information required for the second category. The defendant had been unfairly prejudiced because the jury might have assumed that the images were true likenesses of a real girl aged 14 or at least under 16 when photographed which was not an assumption they could properly make. The convictions were unsafe and would be quashed (paras 25–30, 31–32).
Counsel (assigned by the Registrar of Criminal Appeals) for the defendant.
Counsel (instructed by Crown Prosecution Service, Appeals and Review Unit) for the Crown.