Meeting a child for purpose of sexual exploitation: problems of definition and punishment

Under s.7 of the Criminal Law (Sexual Offences) Act 2017, it is an offence intentionally to meet a child, having communicated by any means with that child on at least one previous occasion, for the purpose of doing anything that would constitute sexual exploitation of the child. The definition is wider than that; the offence may also be committed by travelling with the intention of meeting a child or making arrangements with the intention of meeting a child or for a child to travel. This offence had a predecessor in the Child Trafficking and Pornography Act 1998 (s. 3(2A), now repealed). The offence as there defined required that the defendant should have met or communicated with the child on at least two previous occasions. Other countries have similar provisions outlawing the same kind of conduct, commonly known as grooming.

A few aspects of s. 7 of the 2017 Act are worthy of note. A child for this purpose is a person under the age of 17 years. The offence may be committed by “a person” who could be of any age, including a child who had reached the age (currently 12 years) at which he or she is liable to criminal prosecution. Under the equivalent provision in the English Sexual Offences Act 2003 (s. 15), the offence may be committed only by a person aged 18 years or over. Further, s. 7 contains no defence of mistake, reasonable or otherwise, as to the age of the person being communicated with. The equivalent English, Scottish, Canadian and New Zealand statutes all make express provision for reasonable mistake as to age, with the Canadian and New Zealand law requiring the defendant to have taken reasonable steps to ascertain the other person’s age. Under Irish law a person does not commit an offence unless he “intentionally meets, or travels with the intention of meeting a child.” This might be taken to imply that the defendant must have believed he was meeting or communicating with a person under the age of 17 years, although the English legislation uses substantially the same terms while still providing for a reasonable mistake as to age. The Irish law would be put to the test if a defendant could show that he genuinely and reasonably believed that he was communicating with an 18-year-old who turned out to be a 16-year-old.

But what should happen in a sting operation where the defendant is lured into believing that he (and the defendant will almost invariably be male) is communicating with a child when in fact he is communicating with a police officer or a member of a self-appointed vigilante group? As s. 7 of the 2017 Act is now phrased, it seems to apply solely to a situation where the defendant meets, etc with a person who is actually a child. The same holds true of s. 15 of the English Sexual Offences Act 2003 but the authors of leading English texts, including Smith, Hogan and Ormerod’s Criminal Law (15th ed.), p. 812 and Rook and Ward, Sexual Offences (5th ed), p. 423 (referring to R v Shivpuri [1987] A.C. 1 where it was held that a person may be convicted of attempt even if, on the true facts, the commission of the full offence is impossible) believe that the defendant in a case arising from a sting operation could be convicted of attempt. The same view seems to prevail here in Ireland.

However, s. 7 of the 2017 Act should be reviewed with the foregoing matters in mind. It could very easily be amended to cater for the sting-type situation, as equivalent provisions elsewhere already do. The Canadian Criminal Code (s. 172.2(1)) provides: “Every person commits an offence who, by means of telecommunications, communicates with (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under [certain sections of the Code]…. Perhaps more interesting in this regard is the New Zealand law. Section 131B of the Crimes Act1 1961 defines the offence in a manner very similar to our s. 7 (which may, in fact, have been modelled on it), save that it is confined to communications with “a young person” (under the age of 16 years). However, this was further amended in 2012 to provide:

A reference in this section to a young person under the age of 16 years or the young person includes a reference to a constable who pretends to be a young person under the age of 16 years (the fictitious young person) if the offender, when taking any of the actions described in subsection (1), believed that the fictitious young person was a young person under the age of 16 years.”

In Scotland, likewise, the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (s. 1) provides that this offence is committed by A (the defendant) if B (the person being communicated with) is (i) aged under 16 years or (ii) a constable.

This raises an important policy question to be considered in any review of s. 7 of the 2017 Act. Should it permit string operations mounted solely by the police as opposed to others such as journalists or vigilantes? Should a defendant be guilty only if he was communicating with either a person under the age of 17 years or a member of the Gardaí pretending to be such a person? Should a person apprehended as a result of communicating with a person he believed to be a child but who turned out to be a journalist or self-appointed vigilante be allowed to go free? These are difficult policy questions but they should be confronted rather than relying on the possibly shaky ground of attempt.

An offence contrary to s. 7 of the 2017 Act carries a maximum sentence of 14 years’ imprisonment. But how should the gravity of such an offence be assessed? In recent years, the Court of Appeal has (thankfully) been adopting a more analytical approach than heretofore towards the concept of gravity which has two elements: harm and culpability. In many s. 7 cases the defendant will have acted with a high degree of culpability; he will have set out to sexually exploit a child, perhaps a very young child, he was been grooming for that purpose. This holds true even if the child was fictitious. Assessing the harm element may be more difficult. The offence is essentially preparatory in nature. Granted, the defendant must take certain actions, such as communicating with a child, arranging to meet, etc. But these acts could be perfectly innocent in themselves unless performed with the malevolent purpose of sexually exploiting a child. It is one thing when there is a real child involved. The harm then consists, among other things, of taking advantage of the child’s immaturity and vulnerability (which could be injurious in itself) and placing him or her at serious risk of being sexually exploited. See Hussain [2015] IECA 22, which involved an actual child under the prescribed age.

But how should harm be assessed in a sting operation where there was no child in danger of being exploited, in that particular case at least? This brings us to the more fundamental question of what exactly harm means for the purpose of assessing offence gravity. A characteristic of most “core” (or long established) crimes is that the conduct itself causes harm. This is true of murder, assault, theft, robbery, to name but a few. Nowadays, however, criminal law is replete with “non-consummate” offences the conduct element of which does not, of itself, cause any tangible or immediate harm, although it may (and usually does) involve a risk of future harm. The harm associated with these offences is more remote than that of core offences. The conduct is therefore outlawed in interests of broader social protection. See Sarsfield [2019] IECA 260 regarding possession of drugs for sale or supply.

We could therefore define harm to mean the harm caused by the offence (which would be very narrow) or caused or risked or (perhaps) threatened by the offence. Or, we might go a little further, and adopt the approach of s. 143 of the English Criminal Justice Act 2003 which requires a sentencing court to consider an offender’s culpability “and any harm which the offence caused, was intended to cause or might foreseeably have caused.” The inclusion of harm “intended to be caused” could be important in an assault or attempted murder case, for example, where the victim was lucky enough to escape with little or no physical injury despite the assailant’s intention to inflict much more damage. This is reflected in the English Sentencing Council definitive guideline on attempted murder.

The relevance of all this to sting operations mounted against suspected child abusers was considered last week by the English Court of Appeal in Privett [2020] EWCA Crim 557 which involved an offence contrary to s. 14 of the Sexual Offences Act 2003. This is somewhat different from the grooming offence in s. 15 (which, as noted, is similar in many respects to our s. 7). Section 14 of the 2003 Act creates an offence of arranging or facilitating activity which would constitute a child sexual abuse offence, intending that it will happen. Privett involved four unrelated cases. In each the defendant believed he was talking to the mother of a very young child (6 years of age in three cases and 10 years in the other). In fact, in each, he was talking to a police officer posing as the mother. The description of the defendants’ conduct, it should be said, makes for rather distressing reading. The sentencing of each offence created by the Sexual Offences Act 2003 is governed by a definitive guideline, an important consideration to bear in mind when considering Privett and earlier cases on the same topic (such as Bayliss [2012] 2 Cr. App. R. (S.) 61) from a comparative perspective.

The guideline on s. 14 offences provides that the level of harm should be determined by reference to the type of activity arranged or facilitated by the accused. A court must therefore refer back to the guideline for the offence relating to the conduct the accused was arranging, and take this as its starting point in assessing harm. The contemplated conduct for a s. 14 offence must involve an offence under ss. 9 to 13 of the 2003 Act, and most of these carry maximum sentences of 10 or 14 years. The Court of Appeal confirmed this approach in Privett adding (at [67]) that a court should then “adjust the sentence to ensure it is “commensurate” with, or proportionate to, the applicable starting point or range if no sexual activity had occurred (including because the victim was fictional)….” Earlier (at [61] it had said: “As a general proposition, the harm in a case will be greater when there is a real victim than when the victim is fictional”. The Court upheld all the sentences ultimately imposed on the various defendants (6 years in one case, 5 years and 4 months in two others, 3 years and 4 months in the fourth).

Linking the sentence for a s. 14 offence to the guideline for the offence that was being arranged could lead to some unusual results, as the Court itself acknowledged. It admitted (at [72])

“This may lead to the result that the defendant who arranges the rape of a fictional 6-year-old is punished more severely than a defendant who facilitates a comparatively minor sexual assault on a real 15-year-old. In our view, there is nothing necessarily wrong in principle with that result. The sentence should be commensurate with the relevant starting point and range [for the offence being contemplated] and in cases where the child is a fiction this will usually involve some reduction (as in Bayliss) to reflect the lack of harm.”

Again, it is important to bear in mind that the Court was bound by a Sentencing Council definitive guideline on the sentencing of s. 14 offences. If we were to consider the matter here, we might take a different approach. The harm element might be viewed in terms of the threat which the offender, by his behaviour, seemed to pose to children, and the injury he was willing or intended to inflict upon them. This essentially embraces a conception of harm as including harm intended to be caused. However, in adopting that policy (which, I think, would be quite defensible), we need not follow the rather rigid approach of the English guideline by insisting that, once the intended harm has been identified, a grooming offence must be sentenced according to whatever guidelines or principles apply to the offence(s) whose definition includes that intended harm, though this could always be a relevant factor.

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