Appeal Court upholds sheriff's entrapment ruling on underage sex charge
A man charged with activities done for the purpose of engaging in sexual activity with a girl of 14 has had a defence of entrapment upheld by the Criminal Appeal Court.
The accused, referred to as IP, was charged at Falkirk Sheriff Court with a contravention of s 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”, and travelling, with condoms and lubricant, to, and attempting to meet the other persons at, a hotel “for the purpose of engaging in sexual activity with a child”. There was an alternative charge of conspiracy to participate in such conduct.
The sheriff sustained a plea in bar of trial based on entrapment of the accused, in that he 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.
IP, a teacher, had been identified as one of a number of persons who engaged in online chat logs which contained reference to sexual abuse of children. Police using the name "Lisa" engaged in chat with him as he was asked what he was "into". He mentioned certain sexual practices not involving children. A meeting was suggested but Lisa said her daughter would be in the house, and in due course asked the accused what he would do if she came into the room where they were. He replied that he would carry on, and in response to the question "With me or her?" said "With you... I wouldn’t run away though if she wanted to join in.”
The sheriff held there was no evidence that IP had a predisposition to commit such an offence when he was first engaged by the police, and no basis for suspecting that he had. The police had implanted the necessary intent by persisting with the idea that a child could be involved in his sexual activity. On appeal the Crown argued that the sheriff had erred in his findings; IP had willingly participated in the dialogue and "The police had simply offered an opportunity rather than luring the respondent into expressing a criminal desire."
Delivering the opinion of the court, Lord Justice General Carloway, who sat with Lords Brodie and Turnbull, applied the test in Jones (2010) that the question was “whether or not an unfair trick was played upon the particular accused whereby he was deceived, pressured, encouraged or induced into committing an offence which he would never otherwise have committed”.
The significant facts were that there was no evidence that IP had expressed any interest in sexual activity with children in the original chat logs examined by the police; that when the daughter's existence was referred to initially, that provoked no reaction from him; that when asked about what he was “into”, and his fantasies, he made no mention of children; that when it was mentioned that the daughter would be in the next room he still made no reference to sexual activity with her; and that it was only when the police introduced the idea of the daughter entering the bedroom, during sexual activity between the respondent and other adults, that there was any mention by him of engaging in any activity involving the daughter.
"Against that background," Lord Carloway concluded, "the court is satisfied that the sheriff, whose views, having heard all the relevant circumstances, are entitled to be given some weight, was entitled to strike the balance which he did in determining that what may be a relatively fine line had been crossed. For these reasons this appeal is refused."