Crown Appeal By Her Majesty's Advocate Against Ip
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Justice General,Lord Brodie |
| Neutral Citation | [2017] HCJAC 56 |
| Court | High Court of Justiciary |
| Date | 18 July 2017 |
| Docket Number | HCA/2017 |
| Published date | 25 July 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 56
HCA/2017/353/XC
Lord Justice General
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
CROWN APPEAL UNDER SECTION 74 OF THE CRIMINAL
PROCEDURE (SCOTLAND) ACT 1995
by
HER MAJESTY’S ADVOCATE
Appellant
against
IP
Respondent
Appellant: Prentice QC, AD; the Crown AgentRespondent: Findlater; C & N Defence
18 July 2017
Introduction
[1] The respondent is charged at Falkirk Sheriff Court with a contravention of section 30 of the Sexual Offences (Scotland) Act 2009 by engaging, between 25 and 31 May 2016, in online conversations with “other persons”, arranging to meet these persons “for the purpose of gaining access to a 14 year old girl”, travelling, with condoms and lubricant, to, and attempting to meet the other persons at, an hotel “for the purpose of engaging in sexual activity with a child”. There is an alternative libel of conspiracy to participate in such conduct.
[2] On 6 June 2017, the sheriff sustained a plea in bar of trial based upon the entrapment of the respondent. The essence of the plea was 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 has appealed that decision.
Facts
[3] The facts are not in material dispute. The police were investigating the fabswingers website following reports that certain communications on it, between two unnamed persons, contained messages relating to the sexual abuse of children. Following the execution of several warrants and the recovery of computer equipment from these two persons, a large number of chat logs were examined in order to see if any others had an interest in such abuse. Nineteen persons were regarded as being “of concern”. They were divided into those of medium and high risk. The respondent, who is a teacher, was one of those in the lower category. The message content of his chat did not involve children, but included animals. However, the respondent had had contact with one or both of the two persons originally identified as having expressed an interest in the abuse of children. Authority was given to conduct an undercover operation.
[4] The evidence against the respondent takes the form of chat logs between the respondent and the police (aka “Lisa”) on 24, 25, 26 and 30 May 2016, together with Skype communications on 26 and 30 May. These included chat about several deviant sexual practices which, the sheriff observed, most people would consider “highly unpleasant and indeed repellent”. These are not relevant for present purposes, but references to children are. On 24 May, in the course of general sexual chat at about noon, Lisa mentioned that she had a daughter and a dog. There was no discussion of a sinister nature about the child. The following evening there was a further chat, again involving nothing of note.
[5] On the evening of Thursday 26 May, Lisa asked the respondent what he was “into”. The respondent referred to a number of sexual practices, but none involving children. Lisa asked him about his fantasies. There was mention of the involvement of the dog, but none of children. The first reference to the daughter was when Lisa used her fictional presence to avoid online camera contact. The respondent and Lisa then 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. He asked Lisa if she would be comfortable engaging in sex whilst her daughter was in the next room. There was then the following exchange:
“Lisa: But how would you feel if she came in?
GL: Surprised – but I’d carry on doing whatever xx
Lisa: With me or her?
GL: With you ... I wouldn’t run away though if she wanted to join in.”
There was a 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 under age girl. Lisa proposed meeting the respondent with her daughter and husband at her house on the following Tuesday (31 May).
[6] On 30 May an arrangement was made for the respondent to meet Lisa’s husband at a Travel Lodge before being taken to her home. During this call, the respondent made reference to engaging in sexual activity with the daughter.
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