Criminal Law Week

The following article is written for Police Professional by the editors of Criminal Law Week. Criminal Law Week is used by criminal justice professionals – including police officers, the CPS, judges and lawyers – to stay up to date with changes in the criminal law. Published weekly, each issue contains a comprehensive and concise roundup of new developments regarding offences, police powers, and the rules of procedure and evidence. It also contains commentary placing key developments in context. Criminal Law Week is published both online and in hardcopy. The online service (which includes a fully searchable database and access to updated and annotated key criminal legislation) is available free of charge to all police officers as part of a PNLD subscription at www.pnld.co.uk. For more information about Criminal Law Week or a sample hard copy issue please visit www.criminal-law.co.uk or call 01483 414040.

How should an offence of causing or inciting a child under 13 to engage in sexual activity be charged?

This issue was addressed by the Court of Appeal in R v Grout (CLW/11/11/4).

The complainant, H, was a member of a local church group for children between the ages of 12 and 16, and the defendant, Phillip Grout, was a helper at that group. At the relevant time, Mr Grout was 18 and at university, and H was 12. They became friendly and had each other’s mobile phone numbers and email addresses. Over about a month, while Mr Grout was at home during the university vacation, they sent text messages to each other, and also communicated over the internet, sending messages to each other while seeing each other over webcams. At one point Mr Grout asked H to show him her bra, which she did, and then asked her if she would take any more clothes off, to which she replied that she would not. He denied that he had meant this exchange to have any sexual connotation, but rather that it had been a joke between friends. There followed a further exchange by text message where Mr Grout asked H various questions relating to male and female genitalia. H’s sister found her mobile phone, saw some of these text messages and informed her mother. The police were contacted and Mr Grout was arrested. He was charged with intentionally causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) of the Sexual Offences Act 2003, and was convicted at trial. He appealed against conviction.

One issue which concerned the court was the way Mr Grout had been charged and then indicted. The particulars of offence on the relevant count alleged that he had “…intentionally caused or incited [H]… 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.” It held that because section 8(2) of the 2003 Act provides for higher maximum punishments in relation to penetrative sexual activity (life imprisonment rather than 14 years’ imprisonment), section 8, in practice, creates four different offences, namely: (a) intentionally causing a child under 13 to engage in penetrative sexual activity; (b) intentionally inciting a child under 13 to engage in such activity; (c) intentionally causing a child under 13 to engage in non-penetrative sexual activity; and (d) intentionally inciting a child under 13 to engage in such activity. It therefore said that it is important that a charge alleging an offence under section 8 specifies which of these offences is being alleged, and that where more than one such offence is being alleged (albeit arising out of the same incident), there should be separate counts.

In this case, it held that the indictment had in fact alleged four separate offences, namely: (a) inciting H to engage in sexual activity by showing her bra; (b) causing her to engage in sexual activity in that way; (c) inciting her to engage in sexual activity by asking her if she would take off clot