Online Child Abuse Activist Groups on the internet
- Potential offences if considering charge against the alleged paedophile
- Issues if considering charge against the OCAG members
- Code considerations – Evidential
- Entrapment and the Regulation of Investigatory Powers Act (RIPA) 2000
- Entrapment and Abuse of process
- Public Interest
This guidance deals with cases of sexual offences against children where suspects are arrested as a result of the activities of online child abuse activist groups (OCAGs). Whilst the term ‘vigilantism’ is still in use, for instance in the Memorandum of Understanding between the CPS and ACPO concerning section 46 Sexual Offences Act 2003, which is intended to clarify the position of those professionally involved in combatting the creation and distribution of images of child abuse, the term OCAGs is used throughout this chapter.
The term OCAGs in this context refers to individuals or groups of individuals who are members of the public using on-line activity to uncover or "catch" alleged paedophiles involved in on-line child sexual abuse or interested in meeting children for the purpose of such abuse. A wide range activity may fall under this umbrella term from parents, who intercept a suspicious internet communication and then respond as if they are the targeted child, to sophisticated groups conducting targeted operations with an international dimension.
OCAGs activity, whilst often well intentioned, has the potential to disrupt legitimate covert law enforcement activities. It may be necessary for police forces to take action to intervene where these groups persist in their activity. The police also have concerns about the risks posed to individuals targeted by this activity, which may give rise to e.g. violence being perpetrated against suspects or suspects engaging in self-harm because of the online publicity generated by the OCAGs.
The techniques used by OCAGs are often very different to those employed by the police, and may involve the commission of offences. Prosecutor should ask the police to investigate the alleged criminality and where appropriate provide an evidential file for a charging decision. Careful consideration must be given to the sequencing of prosecutions where the prosecutor is asked to consider charges against both the suspect and the OCAG member, to ensure the prosecution does not give rise to unfairness or raise Article 6 issues if for example a prosecution is delayed.
Whilst there may be occasions where it is appropriate to charge based on evidence provided as a result of OCAG activity, investigators and prosecutors should also consider charging the OCAG members who have committed offences. These offences may include, but are not limited to, assaults, public order offences or possession of indecent images offences. The rationale for not charging an OCAG member with criminal offences should be fully recorded as part of the CMS review.
The decision to prosecute criminal offences exposed by OCAGs must be dealt with on a case by case basis and in accordance with the Code for Crown Prosecutors.
Police are encouraged to seek early investigative advice (EIA) in all OCAG cases using the EIA process available in each CPS area. This will assist officers to address any complex evidential issues, to focus their investigation and to bring to an early conclusion cases which are unlikely to meet the required evidential standard.
Potential offences if considering charge against the alleged paedophile
There are a number of potential offences contrary to the Sexual Offences Act 2003 ("the 2003 Act") and prosecutors should select the most appropriate offence, which will provide the court with adequate sentencing powers. Potential offences include:
- Arranging or facilitating the commission of a child sex offence contrary to section 14 of the 2003 Act: If considering a charge under section 14 arising from an OCAG case, prosecutors should charge the substantive offence and not an attempt. The offence is committed if the person intentionally arranges or facilitates the commission of an offence under sections 9-13 SOA 2003. The focus of the offence is on the child sexual offence which the person intended to arrange or facilitate. The fact that an offence may have been impossible has no bearing on the intention possessed at the time it was arranged of facilitated. Prosecutors should note for sentencing purposes R v Privett & Others  EWCA Crim 557 where the Court of Appeal (Criminal Division) held that when sentencing a section 14 SOA 2003 offence, the judge should:
- First, identify the category of harm on the basis of the sexual activity the defendant intended (“the level of harm should be determined by reference to the type of activity arranged or facilitated”); and
- Second, adjust the sentence in order to ensure it is “commensurate” with, or proportionate to, the applicable starting point and range if no sexual activity had occurred (including because the victim was fictional) (“sentences commensurate with the applicable starting point and range will ordinarily be appropriate”).An attempt to commit an offence under section 15 of the 2003 Act of attempting to meet a child following sexual grooming contrary to section 1 Criminal Attempts Act 1987. This charge requires the defendant to intend to commit a relevant offence. Intention may be inferred from the content of messages but in the absence of such evidence consideration should be given to charging an offence under section 14 of the 2003 Act, which does not require proof of intention.
- Prosecutors are reminded that a person may be convicted of an attempt to commit a full offence even though on the facts it is impossible R v Shivpuri  A.C. 1. See also R v Jones  EWCA Crim 1118, which confirmed that an offence does not require proof of an identifiable child.
- An attempt to commit an offence contrary to section 15A of the 2003 Act namely, sexual communication with a child.
- Causing or inciting a child to engage in sexual activity contrary to sections 8 or 10 of the 2003 Act (or attempting to do so).
- Indecent images of children (IIOC) offences (see legal guidance). If evidence of IIOC offences is found then they should be charged at the same time and included on the indictment in accordance with the joinder principles in CrimPR 10.2(2). See R v D, P and U  EWCA Crim 1474 where the possession/making of indecent images of children was admissible as bad character under gateway (d) in a child sex abuse trial.
Issues if considering charge against the OCAG members
OCAG members cannot avail themselves of the protection afforded by section 46 Sexual Offences Act 2003 ("the 2003 Act"), where during the course of their activity they possess, make or distribute indecent images and will be liable to prosecution.
Where the possession, making or distribution of indecent images of a child are alleged, the Memorandum of Understanding between the CPS and the Association of Chief Police Officers (ACPO) concerning section 46 of the Sexual Offences Act 2003 makes it very clear that those engaged in so called vigilantism cannot avail themselves of the defence in section 1B of the Protection of Children Act 1978 against the offence of making an indecent image of a child.
The Memorandum states that "Vigilantism is not merely unnecessary, it is unhelpful: anyone taking it upon themselves to seek out or investigate this kind of material where there is no legitimate duty to do so will be liable to prosecution."
Code considerations - Evidential
Where suspects are brought to the attention of the police as a result of OCAG activity, it is not unusual for the defence to seek to exclude the evidence and/or argue abuse of process. Prosecutors should note:
- There is no defence of entrapment or "agent provocateur" available in law.
- Case law distinguishes between entrapment by state and non-state agents but in most cases OCAG members, unless tasked or encouraged by the police, would be viewed as non-state agents. However, see the case of R v TL  EWCA Crim 1821 where it was held that actions of private citizens may be capable of amounting to an abuse of process.
- Entrapment is case specific and when applying the evidential test to the facts of the case the prosecutor may be required to consider the application of the Regulation of Investigatory Powers Act (RIPA) 2000 and/or the merits of an abuse of process argument following the guidance below.
In addition, experience of these cases has shown prosecutors will need to consider a number of factors when assessing the evidential strength of the case. This may include:-
- OCAG member support for the prosecution
- OCAG member may not wish to attend court or may disengage from the prosecution process. Prosecutors should therefore seek confirmation of their commitment and willingness to attend court as early as possible in the charging process.
- Disclosure and verification of all relevant communications
- Where OCAG members hand over downloaded material but for whatever reason are unable to provide full access to computers or phones for the communications to be verified by the police, consideration should be given to the extent to which this is relevant to the issues in dispute and impacts on the fairness of the trial.
- It is a common defence approach to argue that the OCAG member went beyond providing an "unexceptional opportunity to commit a crime" (see R v Loosely  UKHL 53), and actively encouraged the suspect's activity. The principles in Loosely apply equally to undercover police officers as OCAG members. The defence have successfully argued in a number of cases that the OCAG member did not meet the terms set out in Loosely, resulting in evidence being excluded. The OCAG member must comply with Loosely in order for a successful prosecution to result.
- If the OCAG member is unable to provide a comprehensive record of the communications with the suspect, it can be difficult to rebut the assertion that Loosely has not been complied with, which can significantly undermine the prosecution.
- Consideration should also be given to independently verifying the material provided by the OCAG member. Defendants will often argue that the material provided does not represent an accurate picture of the communication between the two. Prosecutors should ensure as full a picture as possible is provided to the Court. Consideration may have to be given to asking the defendant for access to his phone.
- See R (Ebrahim) v Feltham Magistrates' Court; Mouat v DPP (2001) 2 Cr. App. R. 23, DC which sets out the principles to be applied where the defendant relies upon the non-availability of evidence. Brooke LJ said that the starting point must be whether there was a duty on the investigator to obtain and/or retain the material in question. The principles relevant to cases involving the non-availability of evidence were summarised by Gross LJ in DPP v Fell  EWHC 562 (Admin) emphasising that a stay is to be granted only in exceptional cases and is effectively a measure of last resort where it has not been suggested that there has been serious culpability or bad faith on the part of the prosecutor or investigator.
- Prosecutors need to consider the extent to which offences committed by OCAGs before during or after the suspects’ arrest undermine their credibility or reliability as a witness of truth. Consideration should be given to charging the vigilante with criminal offences where the Code test is met.
Entrapment and the Regulation of Investigatory Powers Act (RIPA) 2000
Evidence, which may infer that the police have tasked, engaged with or encouraged the online child abuse activity, may give rise to arguments that the OCAG member was in fact a CHIS (Covert Human Intelligence Source) and should have been regulated under the Regulation of Investigatory Powers Act 2000 (RIPA).
RIPA governs police covert activity but this does not usually extend to members of the public carrying out vigilante activity. See Home Office Codes of Practice - Covert Human Intelligence Sources for further information.
For the purposes of RIPA, a person is a CHIS (s. 26(8) RIPA) if:
- he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything failing within paragraph (b) or (c);
- he covertly uses such a relationship to obtain information or to provide access to any information to any other person; or
- he covertly discloses information obtained by the use of such a relationship or as a consequences of the existence of such a relationship.
A relationship is used covertly, and information obtained as mentioned in (c) is disclosed covertly, if and only if it is used, or as the case may be, disclosed in a manner that is calculated to ensure that one of the parties of the relationship is unaware of the use of disclosure in question.
Individuals, who voluntarily provide intelligence on a frequent basis, even though they are not specifically tasked by the police, may fall within the definition of a CHIS where the nature of their activity, encouragement by the police or the frequency of the provision of information leads to the inference that they had in fact been tasked to act in a covert manner. It should be noted that it is the nature of an individual's relationship with the police (and in particular whether this is "covert") rather than police tasking an individual which is the important factor in considering whether the person may attract a CHIS status.
If the nature of the contact between the witnesses and the police became such that CHIS status attaches, then authorisation under RIPA would be required. The absence of such authorisation would be significant in an application to exclude the evidence, albeit not determinative. The court considers issues of overall fairness in deciding such applications.
In the case of R v Khan  EWCA Crim 2230, the Court of Appeal held that the trial judge had been right not to exclude a covertly obtained recording of an incriminating conversation between two of the defendants in a police van en route to the first hearing in the Magistrates' Court. Although the circumstances in which the recorded evidence had been obtained exceeded the authority granted under RIPA and breached the appellants’ right to privacy, its admission did not adversely affect the fairness of the trial.
Recently, the UK Supreme Court in Sutherland v Her Majesty’s Advocate  UKSC 32 considered the issue of the compatibility of prosecutions based on the covert sting operations of "paedophile hunters" with the right to private life and correspondence.
The Supreme Court held that there was no interference by the decoy of Mr Sutherland’s right to private life at any stage ranging from the actions of the decoy and evidence passed to the police, the actions of the prosecution in prosecuting based on that evidence to the actions of the court in admitting evidence at trial.
The Supreme Court held that Mr Sutherland’s Article 8 rights were not interfered with because communications from Mr Sutherland to the decoy were not capable of respect and Mr Sutherland had no reasonable expectation of privacy regarding the communications.
It is essential that prosecutors obtain from the police a comprehensive report on all dealings with the OCAG in question, and in particular any record of the police discouraging any such OCAG activity.
Entrapment and Abuse of process
Evidence obtained by OCAG activity may be excluded as an abuse of process or provide grounds for the court to exercise its discretion to exclude evidence under section 78 Police and Criminal Evidence Act 1978.
The law in relation to abuse of process following entrapment by police officers is definitively stated in the case of R v Loosely  UKHL 53. The key issue, summarised in the judgement at paragraph 71, is whether a prosecution would compromise the integrity of the judicial system.
The key principles to be derived from the case of Loosely are as follows:
- In cases involving vigilante activity, prosecutors will need to consider whether the suspect was only being afforded an "unexceptional opportunity to commit a crime", in which case a stay of proceedings would be unlikely. See paragraph 23.
- “The greater the degree of intrusiveness the closer the court will scrutinise the reason for using it. On this proportionality has a role to play." See paragraph 24.
- "Ultimately, the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice in to disrepute." See paragraph 25.
In paragraphs 26 - 29 of Loosely, the following circumstances were noted as having particular relevance:
- "The nature of the offence. The use of pro-active techniques is more needed and, hence, more appropriate, in some circumstances than others. The secrecy and difficulty of detection, and the manner in which the particular criminal activity is carried on, are relevant considerations.
- The reason for the particular police operation.
- The nature and extent of police participation in the crime. The greater the inducement held out by the police, and the more forceful or persistent the police overtures, the more readily may a court conclude that the police overstepped the boundary: their conduct might well have brought about commission of a crime by a person who would normally avoid crime of that kind. In assessing the weight to be attached to the police inducement, regard is to be had to the defendant's circumstances, including his vulnerability."
- The defendant's criminal record.
In Loosely, at paragraph 101, the court noted: "In balancing the relevant factors, the English Courts have placed particular emphasis on the need to consider whether a person has been persuaded or pressurised by a law enforcement officer into committing a crime which he would not otherwise have committed, or whether the officer did not go beyond giving the person an opportunity to break the law, when he would have behaved in the same way if some other person had offered him the opportunity to commit a similar crime, and when he freely took advantage of the opportunity presented to him by the officer."
The Court in Loosely considered Attorney General's Reference 3 of 2000 and concluded that the police officers had instigated the offence. The acquitted person had supplied heroin to the police officers only because they repeatedly offered to supply and did supply to him, cut-price cigarettes and he wished to benefit from that supply. He told the officers he was not interested in heroin but had become involved because "a favour was a favour".
The court held at paragraph 102 of Loosely that "a request for drugs, even if it be persistent, need not be regarded as luring the drugs dealer into committing a crime with the consequences that a prosecution should be stayed. If a prosecution were not permitted in such circumstances the combating of the illegal sale of drugs would be severely impeded, and I do not consider that the integrity of the criminal justice system would be impaired by permitting a prosecution to take place”. The difference with the situation in relation to the AG reference is that the acquitted person was not involved in drug dealing and would not have been had it not been for the actions and persuasionof the officers.
The authorities leave open the possibility of a stay on the basis of entrapment by non-state agents such as vigilantes. See Council for the Regulation of Health Care Professionals v Saluja  EWHC 2784 (Admin) which confirmed that the grant of a stay in the case of a non state agent would be "very rare".
The conduct of the non-state agent would have to be so serious that reliance upon it would compromise the integrity of the court. See Saluja.
Evidence of misconduct by the non-state agent, which is not directly related to the entrapment may be relevant to the issue of whether gross misconduct exists which justifies a stay. In the case of R v Hardwicke and Another  Crim LR 220, the Court of Appeal stated that a newspaper's priorities in publishing a story of entrapment before reporting it to the police, although not linked to the commission of the offence, were relevant considerations but did not amount to an abuse. See also R v Palmer  EWCA Crim 1681 in which, the court considered the relevance of an offer to sell firearms by an undercover officer but found it had nothing to do with the offence charged and could not have vitiated the proceedings against Palmer.
In the case of Rosenberg  EWCA Crim 6, the Court refused an application under section 78 PACE to exclude CCTV footage of the defendant's neighbour (in a non-vigilante case). The application was on the basis that the police had evaded the provisions of RIPA by using the footage. The Judge held that the police had not encouraged any breach of the defendant's human rights but rather had used "the fruits of their enthusiasm". On Appeal, the defendant argued that the police were complicit in the surveillance to the extent that they knew of it and were prepared to use it in a criminal prosecution. The Court found that it was could not be regarded as police surveillance for the purposes of RIPA. The police had neither initiated it nor encouraged it.
Publicity, notoriety, commercial gain or violence may be motivating factors for a vigilante group. Prosecutors should consider the extent to which the presence of one or more of these factors compromises the integrity of the Criminal Justice System. See Hardwicke above.
Following the principles in Loosely prosecutors need to consider not only the tactics adopted by OCAGs but also their impact on the suspect and any relevant vulnerability. For example, where the OCAG member has adopted forceful and persistent tactics and there is evidence that significant learning difficulties make the suspect more susceptible than others, it may be reasonable to conclude that this goes beyond simply presenting the suspect with an unexceptional opportunity to commit an offence.
Prosecutors should also be reminded that the actions of private citizens may amountto an abuse of process. A starting point in considering whether or not the actions of a private citizen should lead to a stay of proceedings is to ask whether the same, or similar, conduct by a police officer would do so: per case of R v TL  EWCA Crim 1821
There, Lord Burnett stated [in paragraph 35] that “…A precise comparison may be difficult because when the police or other state investigators or prosecutors act in this way, they do so subject to codes of conduct and strict hierarchical oversight. Of course, great care would need to be taken to do no more than give an opportunity for others to commit offences.”
The Public Interest in prosecuting cases arising from OCAG activity should be considered very carefully.
If an OCAG member uses children (either their own or others), as part of their activity, prosecutors should consider possible criminal offences against the OCAG member to reflect the involvement of the children.
Even if no criminal offences result, such behaviour is so inappropriate that it would rarely be in the public interest to prosecute the person the OCAG member was communicating with. To prosecute in such circumstances may encourage others to use children as part of their own OCAG activities.
Prosecutors should contact the Child Sexual Abuse Policy Advisor for further information and case work examples involving abuse of process and/or the application of RIPA.