This may not normally be more than an utterly humiliating and embarrassing experience, with family members, friends and acquaintances alike all receiving the invitation for some...let's say... "happy times". Except as a swimming instructor he also happened to have the number of a couple of his students, aged around 13-14, who also received the message.
Cue a court case at Birmingham Crown Court, and a sequence of events that landed him with an 18 month jail sentence for, as far as we can so far tell, causing or inciting a child to engage in sexual activity.
It's bizarre.
First of all, there is the issue of bringing the case to court. The CPS has been notorious in the last 12 months for taking cases to court that simply aren't in the public interest, such as the ill-fated attempts to pin terrorism malicious communication charges on Paul Chambers.
The fall out from Chambers' case led to the Director of Public Prosecutions promising to be much fairer about how they approach charging these sorts of "crimes" in the future.
Of course the case of Craig Evans is one that started before this particular about-turn by the CPS.
The question starts though with the legal wording. Intent.
A person aged 18 or over (A) commits an offence if—
(a)he intentionally causes or incites another person (B) to engage in an activity,
At what point did the CPS decide this was intentional? There are (to my layperson mind) two situations here that are reasonable; the third being that this was a cunningly orchastrated plan to solicit sex from two underage girls while maintaining an air of innocence through the "ooops I didn't mean to do that, why would I send it to my mum" defence.
First, it wasn't intentional and, as the defence appears to have put it, the guy simply made a mistake in sending it to everyone on his phone instead of via text to the intended recipient.
Second, it was intentional as some kind of twisted prank but the intention itself was never to get anyone to engage in sexual activity.
In either case I'm not entirely sure how the charge of "causing or inciting a child to engage in sexual activity" can be applied. Maybe a proper lawyer can enlighten us, or someone that has transcripts of/attended the case...
There is, therefore, a definite whiff of something weird going on. It has to be expected that the defendant's team weren't denying that an "inciting" message had been sent, but that it wasn't intentional. I would also assume that the question asked of the Jury was whether they felt it was intentional or not.
The jury found him guilty, and the judge at Birmingham Crown Court gave him 18 months.
Now, however, he is out after an appeal, halving his sentence and suspending it.
But wait... the conviction wasn't overturned. He is still technically guilty of inciting a child to engage in sexual activity, he will no doubt still be on the sex offenders register and scuppering any chance to carry on with his job as a swimming instructor that works with children.
The judge is reported, on reducing the sentence, to have said...
It is difficult to conclude that he was targeting anyone
So... it's not clear if he targeted anyone. This means that the only way the charge can stand is if he intended to target everyone, in the knowledge that two kids would be included, but not those children specifically.
Any other explanation (again, to layperson Lee here) means that there is an acceptance that intent is not possible to determine. If that's the case, isn't there a burden of proof that says "beyond all reasonable doubt" in Crown Court cases? If the Judge admits that they just aren't sure of what he intended, how can the charge itself stay standing?
EDIT: To further confuse, Elias also said that the Custody Threshold was reached, under law this relates to how...
The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.Source: Criminal Justice Act 2003
So we also have this statement that not only the original judge, but the appeal judge too, felt this crime was so serious that simply putting a fine on him wouldn't be sufficient, only jail time would do. While accepting that this may well have been an unintentional act (or if intentional, not targeted at the girls specifically), how can you still say a custody threshold has been reached?
This case is strange, from the CPS bringing it to the appeal judge not quashing it. What are we missing? The legislation is concise and clear, there's not an awful lot that is possible to be causing such a crazy situation to be occurring. I guess we have to watch this space...
I've been looking for more information on this and have not found any so far. All subsequent reports seems to lead back to the Daily Mail, who reported that he intended to message his unnamed 'lover'. This is not mentioned in the judges' comments but has been repeated by each subsequent retelling.
ReplyDeleteThe offence of inciting sexual activity with a child is section 10 of the Sexual Offences Act 2003 and clearly requires proof of intention. A judge could not have allowed the case to go to the jury if it was accepted it was an accident. The further step that he appealed, and still had the conviction upheld puts it further into the realm of 'there must be more to it than reported'.
The only interpretation of this that makes sense so far to me is that he intended to message just the girls, or one of them, but acidentally sent the message to everyone, so was then caught. For the case to go to the jury, for him to be convicted, and for his conviciton to be upheld strongly suggests there was proof of that intent.
If the story is as the DM reported it would involve the worst series of legal errors by judges in modern times.