R v Grout (Phillip)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 01 March 2011 |
| Neutral Citation | [2011] EWCA Crim 299 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 March 2011 |
| Docket Number | Case No: 201001237 C1 |
[2011] EWCA Crim 299
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM KINGSTON CROWN COURT
HIS HONOUR JUDGE LEONARD Q.C.
Before: Lord Justice Aikens
Mr Justice Irwin
and
His Honour Judge Roberts Q.c.
Case No: 201001237 C1
T20090945
Ms Alison Morgan for the Appellant
Mr Guy Ladenburg for the Crown
Hearing date: 11 February 2011
Lord Justice Aikens:
On 5 February 2010, following a trial before HHJ Leonard QC and a jury in the Crown Court at Kingston, the appellant, who is now aged 21, was convicted of "intentionally causing or inciting a child under 13 to engage in sexual activity", contrary to section 8(1) of the Sexual Offences Act 2003 ("the SOA"). The jury acquitted the appellant of a second count under the same section and the judge withdrew from the jury a third count also alleging an offence under the same section but involving a different complainant. The judge sentenced the appellant to a Community Sentence with a requirement that he carry out 40 hours of unpaid work.
On 11 February 2011 we heard submissions on Mr Grout's appeal against conviction. At the end of the hearing we announced that the appeal would be allowed and the conviction quashed. We said we would give our reasons in writing, which we now do in this judgment of the court.
The facts which led to the charges
The appellant and the complainant, whom we will call H, were both members of a local church group known as the "Pathfinders Group". At the relevant time, December 2008 – January 2009, the appellant was 18 and at university. H was then 12. The appellant was a helper with the church group which consisted of children between the ages of 12 and 16. The two became friendly and they had one another's mobile phone numbers and e-mail addresses. During December 2008 to early January 2009 the appellant was living at home during the university vacation. The two sent text and MSN messages to one another. The appellant's computer had a webcam facility and the complainant was able to use her elder sister's computer with a similar facility. They would send MSN messages to one another and at the same time could see one another via the webcam.
The series of text messaging, MSN chats and webcam communications that led to the exchanges which were the foundation of counts 1 and 2 began around 5 January 2009. It was difficult to reconstruct the text and MSN conversations because the appellant deleted all the texts relating to H from his mobile phone at some stage. Furthermore, on 27 January 2009, the day before the appellant's arrest, the appellant re-formatted his computer, so that his computer contained no MSN history of any kind before that date. However, an examination of H's mobile phone showed that although some texts had been deleted, not all of them had been and a schedule of the surviving texts was compiled. H's MSN account was also examined and a schedule of those MSN texts between the appellant and H during January 2 009 was also prepared. Both were put in evidence before the jury.
At the trial the complainant's evidence in chief was based on an ABE interview in which she talked about the MSN messages and the texts between her and the appellant and what they meant. The messages were generally of a jokey character. However, it was the prosecution case that on occasions between 7 —11 January 2009, the tone of the texts changed significantly. At one stage the appellant asked H to ask him "a more sexual question". The complainant said that was not right. The appellant then asked her the question: "would you go in a room with me naked" which was the subject of count 2. She said that she was scared of that question and did not answer it.
The complainant's evidence at the trial was that there were then further questions and answers. The first relevant one for the purposes of this appeal is where the appellant asked H to show him her bra. The judge said this about it in his summing up, at page 13 C-E:
"She [said] she got scared and just did it. She pulled the strap out of the top. He said "Nice. Would you take any more off" And she said no. She said in answer to Ms Morgan (counsel for the appellant) that she didn't think that this was serious and she didn't think anything was going to happen. To her it just seemed strange and uncomfortable because an adult was asking her to do these things. She said she felt silly replying".
In short, the evidence of H, which was not contested by the appellant, was that H had shown her bra strap by pulling back the corner of the neck of her jumper so that it was visible to the appellant on his computer screen via the webcam link. In relation to this particular exchange the evidence of the appellant was that he did not mean it to be construed in a sexual way. He accepted that it might have been something that H was embarrassed about and that it was very silly and stupid. But he denied he got any sexual gratification from it and he said that it was a joke amongst friends.
In his summing up the judge referred to MSNs that indicated that the two had talked about the appellant taking clothes off on the webcam. The judge did not refer in his summing up to any evidence about messages asking H whether she would take clothing off.
At some stage on the same day that the exchange about the bra took place, but it is not clear when in the whole sequence of text and MSN messages, there was a further exchange of text messages which were found on H's mobile phone. One text from the appellant wa s "what happens to a guy's thing when he gets excited" and she replied that she did not know and the appellant sent a text back saying "LOL", meaning "lots of love" or "lots of laughs". He also wrote "Durex". In evidence in court H said that she found it weird that an adult should send her this stuff and it made her feel uncomfortable and sick and horrible. She agreed with the suggestion that it was scary for a 19 year old to send her sexual questions when she was only 12 and she was scared of her mum finding out.
At the trial H's sister gave evidence that on 12 January 2010 she had borrowed H's phone and that she had seen a text message on it which was from the appellant and read: "Do you know what happens to a boy's willy if he gets excited". She also said that she saw two other separate messages, which were from the appellant, which read: "What do you call your upper bits and your lower bits" followed by "do you call them your boobs and your fanny". It was at that point that the sister called to her mother and showed her the text messages. Subsequently the police became involved.
The appellant was interviewed on 28 January 2009. On the advice of his solicitor he declined to answer questions. His computer was seized but because it had been re-formatted no relevant information could be retrieved from it.
The Indictment and the relevant provisions of the Sexual Offences Act 2003
Count 1 of the Indictment stated:
"Statement of offence
Causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003.
Particulars of offence
PHILIP GROUT between the 1 st day of December 2008 and the 14 th day of January 2009 intentionally caused or incited [H] a child under the age of 13, namely 12 years, to engage in sexual activity, namely taking part in a WEBCAM conversation when you asked [H] to show you her bra and asked her if she would take off clothing."
Sections 8(1) to (3) of the Sexual Offences Act 2003 provide:
"8. Causing or inciting a child under 13 to engage in sexual activity
E+W
(1) A person commits an offence if—
(a) he intentionally causes or incites another person (B) to engage in an activity,
(b) the activity is sexual, and
( c) B is under 13.
(2) A person guilty of an offence under this section, if the activity caused or incited involved—
(a) penetration of B's anus or vagina,
(b) penetration of B's mouth with a person's penis,
(c) penetration of a person's anus or vagina with a part of B's body or by B with anything else, or
(d) penetration of a person's mouth with B's penis,
is liable, on conviction on indictment, to imprisonment for life.
(3) Unless subsection (2) applies, a person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 14 years".
Section 78 of the SOA sets out a definition of "sexual" for the purposes of section 8 of the Act as well as other provisions. It provides:
"78 "Sexual"
E+W+N.I.
For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that—
(a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or
(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual".
It will be noted that there is no definition of "activity" in the SOA.
The Trial
At the start of the trial the defence made a submission that all three counts on the Indictment should be withdrawn from the jury because the facts set out in the particulars of offence could not amount to offences under section 8(1) of the Sexual Offences Act 2003. The judge ruled that count 3 should not go further. However, he said that he would review...
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