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R v Denham [2016] EWCA Crim 1048

In July of this year I represented Mr Denham (D) in his appeal against conviction for conspiracy to sexually assault a child. The Judgement has just been published both in Archbold News and in CLW Issue 35/2. The issues that were considered were the introduction of the guilty pleas of D’s co-conspirators and the application of s.76 & 78 of PACE.

This was a National Crime Agency operation (Op Vanquis) targeting a group of paedophiles from across England. The group had met on TOR, communicated via secure chat rooms and discussed the sexual abuse of very young babies. A number of the defendants had in fact raped babies, shared the abuse on line and in due course pleaded guilty to offences of rape.

Mr Denham pleaded guilty to a number of counts concerning child abuse images and abuse he had watched on SKYPE where one of his co-defendants had masturbated in the presence of a child B.

In relation to the counts on which he stood trial he faced a count of conspiracy to rape and in the alternative a count of conspiracy to sexually assault a child. His co-conspirators were H & K who had pleaded guilty to rape charges involving the same child and other offences of abuse.

The victim was a baby called T.  H was a friend of T’s parents and was allowed to baby sit. He was also an entrenched paedophile. H was a member of a paedophile on line group and had been in contact with K and D. The three of them discussed on line the future abuse of T; H said he would arrange access to T for his co-defendants and both D and K enthused about the idea. It was clear from the chat they received sexual gratification just by discussing the idea of abuse. There was no set time or location where the abuse would happen recorded in the chat logs and the prosecution picked a day when K & D met in London.

Circumstances transpired so that H did not have access to the child on the date that the prosecution alleged the abuse would take place. Though D and K met in London both were there on a business and nothing happened. H was in hospital and T was at home many miles away. D never met H in person, only met K once and never met or even saw a picture of T. Communication between D and his co-conspirators soon ended and when T was later abused by H and others he was not invited. His case was that the discussion between the three of them was masturbatory fantasy; that he didn’t think T had really existed, no date or place was agreed, there was no agreement and even if there was he was not part of any agreement.

H & K pleaded guilty to the conspiracy, they could hardly do otherwise as both on other occasions had raped T and any sentence they received for this count would make no difference to their ultimate sentence, as proved the case. Neither took part in the trial. The prosecution wished to adduce their pleas and they were automatically admissible pursuant to s.74. The defence argued that the introduction of the pleas of K & H to the conspiracy closed off a defence of D, that there was no agreement. It proved there was an agreement; that for K & H it was not masturbatory fantasy; neither H or K could be cross examined; that where the sole evidence for the agreement were the conversations between the three defendants it was unfair to admit the pleas and therefore s.78 should be applied. The argument fell on stony ground and the Judge allowed the introduction of the pleas.

The jury in fact acquitted D of conspiracy to rape (the summary in Westlaw is incorrect) and only convicted him of the conspiracy to sexual assault the baby. It was an agreement the jury concluded, but that K & H had a different intention to D.

The issues in the appeal were (1) whether the judge’s approach to s.74 was wrong in law; (2) if not, whether his decision to admit the evidence was nevertheless a decision which could be impugned on appeal;

The Appeals were dismissed.

(1) The judge had correctly stated the law in relation to s.74. The admission of prosecution evidence would often raise difficulties for the defence, but the key factor was not whether it created difficulty but whether it created unfairness (see para.39 of judgment).

(2) The decision whether to admit the evidence, although often described as a discretion, was better described as an exercise of judgment in which a balance had to be struck on the issue of fairness. Such decisions were fact-sensitive, and the sentencing judge was in a good position to assess the issue of fairness in the context of the dynamics of the trial process. The admission of the guilty pleas had neither shut off the appellants’ defences nor closed down the issue which the jury had to consider (paras 40-42).

Interestingly the comment in CLW submitted that the court put the law too narrowly in stating that it should only be admitted where there is no dispute about the alleged offences having being committed. It is sometimes the case that a co-defendant does not admit that a conspiracy existed (as here), but is in no position to positively dispute it.

For the reader with an interest in defences concerning masturbatory fantasy then the leading case is R v Goddard & Fallick  [2012] EWCA Crim 1756. The issue in this case was one of ‘executory intent’. Both appellants lived many miles apart and chatted to each other in line about the abuse of a young boy. In reality there was no boy and it was clear from the chat that it was boasting from which both achieved sexual gratification. They never met and there were no real plans to meet. The appeal was successful on the ground that the judge should have acceded to a half time submission of no case to answer.

One interesting issue that arose was the introduction of child abuse images by the trial judge were the issue was not whether the appellants were interested in children, but whether there was an agreement between the two to carry out the conspiracy.

Lord Justice Aikens said as follows:

‘So far as concerns the admission of the offences of possessing indecent images of children as “bad character” evidence, we have three comments to make. First, it seems to us that the judge did not fully grasp the fact that there was no issue between the parties about the defendants’ sexual interest in young boys. That was clearly admitted. So there was no point in admitting those offences as “bad character” evidence on that issue. Secondly, the judge does not appear to have considered specifically whether the admission of those offences could be evidence of either an agreement to rape a male child under 13 or evidence of an intent to carry out the plan. The point was clearly identified by Mr Morris in the course of submissions during the application to admit that evidence. We think that if the judge had analysed the matter he would have been bound to conclude that the admission of those offences could not assist in relation to those two points, whereas their admission would be highly prejudicial to the defendants. In our judgment, they should not have been admitted, either pursuant to section 101(3) of the Criminal Justice Act 2003 or pursuant to section 78 of the Police and Criminal Evidence Act 1984.’

The irony is that Fallick went on to change his name and turned out to be D’s co-defendant in this trial!

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