Teacher accused of seeking sex with child has ‘entrapment’ claim upheld on appeal

The Appeal Court of the High Court of Justiciary ruled that the sheriff was entitled to conclude that the accused had “no predisposition” to commit such an offence and that an undercover officer who was investigating the website “fabswingers.com” had tried to “lure” him into activity which he would not otherwise have undertaken.

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the respondent “IP” was charged at Falkirk Sheriff Court with a contravention of section 30 of the Sexual Offences (Scotland) Act 2009 by engaging in online conversations with “other persons”, arranging to meet these persons “for the purpose of gaining access to a 14-year-old girl” and attempting to meet the other persons “for the purpose of engaging in sexual activity with a child”.

Undercover operation

The court was told that the police were investigating the fabswingers website following reports that certain communications on it contained messages relating to the sexual abuse of children.

The respondent’s computer was seized as part of the investigation but the content of his chats with others did not involve children, although he had had contact other persons originally identified as having expressed an interest in the abuse of children.

An undercover operation was launched and the evidence against the respondent came from chat logs and Skype conversations between him and an undercover police officer, aka “Lisa”.

In the course of general sexual chat, Lisa mentioned that she had a daughter and a dog, but there was no discussion of a sinister nature about the child.

During a further exchange of messages Lisa asked the respondent what he was “into”, and he referred to a number of sexual practices, including the involvement of the dog, but none of children.

The daughter

The first reference to the daughter was when the respondent and Lisa attempted to arrange a meeting, but Lisa said that her daughter would be in the house.

The respondent asked when her bedtime was; suggesting that sexual contact would only take place after the daughter was out of the way.

But when asked how he would feel if she walked into the room he said he “wouldn’t run away if she wanted to join in”.

There was then a further short chat about sexual activity between the respondent, Lisa and her daughter, in which the respondent stated that he had not previously been involved with an underage girl.

Lisa proposed meeting the respondent with her daughter and husband at her house and during a further call to make arrangements for the meeting the respondent made reference to engaging in sexual activity with the daughter.

Entrapment

However, the sheriff sustained a plea in bar of trial, which was to the effect that the respondent, who was not predisposed to commit the crime, was lured or incited by undercover police officers, using the website fabswingers.com, to converse about the prospect of engaging in sexual activity with a 14-year-old.

The Crown appealed that decision, arguing that the sheriff erred in holding that the police did not have reasonable suspicion that the respondent was about to commit a crime such as that libelled.

It was also submitted that the sheriff erred in concluding that the respondent had no predisposition to engage in the conduct libelled, as he had “willingly participated” in a dialogue inviting sexual conduct.

The advocate depute further argued that the police had simply “offered an opportunity rather than luring the respondent into expressing a criminal desire”.

Unfair trick

Refusing the appeal, the judges observed that in Jones v HM Advocate 2010 JC 255 it was said that the question was whether or not an “unfair trick” was played upon the particular accused whereby he was “deceived, pressured, encouraged or induced into committing an offence which he would never otherwise have committed”; and that the resolution of the matter will depend on the facts of the case.

Delivering the opinion of the court, the Lord Justice General said: “In this case, the significant facts were, first, that there was no evidence that the respondent had ever expressed any interest in sexual activity with children in the original chat logs examined by the police.

“Secondly, when the existence of the daughter was referred to initially by the police, that provoked no reaction from the respondent.

“Thirdly, when he was asked specifically about what he was ‘in to’, and then what his fantasies might be, he made no mention of the daughter or children in general.

“Fourthly, at the point of the initial discussion about the daughter being in the next room, the context of what he said did not involve sexual activity with the daughter, but concern in relation to her presence.

“Fifthly, it was only when the police introduced the idea of the daughter entering the bedroom, during sexual activity between the respondent and other adults, that there was any mention by him of engaging in any activity involving the daughter.

“Against that background, the court is satisfied that the sheriff, whose views, having heard all the relevant circumstances, are entitled to be given some weight, was entitled to strike the balance which he did in determining that what may be a relatively fine line had been crossed. For these reasons this appeal is refused.”