BNE [2023]: Disclosure and the use of child decoy profiles in sexual communication cases

Appeal where convictions for sexual communication with a child and inciting a child to engage in sexual activity were quashed due to disclosure issues surrounding the disclosure of a decoy profile’s images in the trial. 

Background  

The Appellant was charged with attempted sexual communication with a child (count 1) and attempting to incite a child to engage in sexual activity (count 2) after communicating with a decoy profile (‘X’).

The appellant’s defence centred around their belief in the profile being older than was stated in their communication. It was relied on that, from the images on X’s profile, it showed what the appellant believed to be an individual aged over 16.

The defence requested disclosure of the true age of the person in the images. They contended that if the person pictured was a young adult, that would support the appellant’s case. It was further submitted that it would be unfair for the jury to be led to believe that the person depicted was underage if they were over the age of consent. The Crown declined to provide the information requested.

The judge ruled that the age of the person shown was prima facie disclosable. He conducted a public interest immunity (“PII”) hearing. At its conclusion, the judge held that there was a public interest in not disclosing that information.

The Appellant was convicted on both counts of the indictment.

Issue 

The appellate Court was invited to review the PII material to determine whether in the circumstances of this case it was fair to allow the trial to continue without disclosing the age of the person depicted.

The Court emphasised that the crux of the Appellant’s defence was that he believed the profile with whom he was communicating to be an adult.

Approach to be taken 

The Court highlighted the following in properly determining the approach to be taken regarding disclosure in cases such as these. It considered two scenarios:

1. If the photograph used is of a real person who is 16 or over when photographed, the true age of the individual when photographed should be disclosed to the defence; as it is capable of undermining or assisting both parties. It is also a relevant factor to the Jury in assessing the reasonableness of a defendant’s belief in the age of the individual with whom they are communicating. In this situation, the Prosecution should disclose the actual age of the individual at the time their photograph was taken, not merely whether they are aged 16 or over.
2. If the photograph has been digitally created or altered to produce images consistent with a decoy profile, the age of the person’s image which has been modified is, in the Court’s view, of no relevance. Thus, the prosecution’s duty of disclosure does not extend to disclosing ‘the true age of any real person originally photographed’ or the process of the digital modification. However, it is imperative that the defence are informed of the fact that the images have been digitally manufactured or changed, usually ‘convenient to do so by way of an admission of fact’ [28].

It follows that, in a case where there has been no disclosure of the true age of the person shown at the time when the photograph was taken, it will ‘usually be necessary for the jury to hear evidence of the fact that the images were manufactured, altered or modified so as to fit the decoy profile’. [29] 

The Court determined that the Judge at first instance ‘did not address the issue of disclosure in the way which we have found to be appropriate’. Consequently, the appellate Court ‘accept[ed] the submission that the appellant was unfairly prejudiced because the jury may well have assumed that the images were true likenesses of a real [person] aged 14, or at least aged under 16, at the time when photographed. On the evidence before the jury, that was not an assumption which they could properly have made.’ [30]

Due to this, the Appellant’s convictions were deemed unsafe and thus quashed.

BNE provides guidance on a relatively novel point of procedure, in addition to when PII considerations are of importance. It further emphasises the significance of following the correct disclosure regime, both for the prosecution and defence, and the approach to be adopted to ensure that defendants receive fair consideration of the ‘reasonable belief’ defence at trial.

Celine Kart practises in criminal and child law and was recently ranked a Rising Star in the Legal 500.

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