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31 Mar 2017

Danielle Reece-Greenhalgh discusses the impending legislation to combat online child exploitation published in Criminal Law & Justice Weekly

Danielle Reece-Greenhalgh writing on the impending legislation set to combat online child exploitation.

The Serious Crime Act 2015 came into force on March 3, 2015; an Act of Parliament which sought to amend and progress a plethora of criminal offences, from computer misuse to Female Genital Mutilation. One aspect of considerable importance is found buried deep within the legislation in s.67; the new offence of “sexual communication with a child”.

This offence was not originally brought into force with the rest of the Act – instead, It has been sitting on the statute books for the past two years, with no real explanation by the Ministry of Justice as to why. Children’s charities have understandably been keen to see this offence added to the armoury of investigators and prosecutors, who are increasingly dealing with child exploitation initiated online. In the flurry of activity currently surrounding the status of sexual offence trials, Justice Secretary Liz Truss announced last week that s.67 would finally become a reality from September of this year.

The offence applies to any individual aged 18 or over (A), who intentionally communicates with a person under the age of 16 (B) without reasonable belief that B is 16 or over. The nature of the communication must be either “sexual” or “intended to encourage B to make (whether to A or another) a communication that is sexual”.

As is the case with most sexual offences, “sexual” remains undefined by the legislation, save that a communication will be held to be so if “any part of it relates to sexual activity” on an objective analysis. Another significant element of the offence is that A must have carried out the communication for the purpose of obtaining sexual gratification. This will inevitably be determined by the context provided in the communication logs.

The current law dictates that if an adult (over 18) sends an electronic communication to a person under the age of 16, which is of a sexual nature, they can be prosecuted under s.127 of the Communications Act 2003 if it is deemed that the communication was “grossly offensive or indecent.” They may also be liable under s.8 of the Sexual Offences Act 2003 (SOA 2003) for causing or inciting a child under the age of 13 to engage in non-penetrative sexual activity.

“Sexual activity”, for the purposes of s.8, can be held to be capable of covering conversations conducted via text message, as ruled by the Court of Appeal in R. v. Broughton [2007] EWCA Crim 566. However, the monumental gap in this legislation, namely that the child must actually engage in the reciprocal sexual activity, is precisely what s.67 is designed to fill.

It is notable, and indeed commendable, that s.67 confines its reach to communications sent by adults. This limitation was the subject of considerable debate during the Commons Committee stages, with some being keen to punish the actions of teenagers between 16 and 18 who sought to exploit those much younger than themselves. However, the legislation sensibly follows the guidance of the NSPCC and other advisory charities, who warn of the dangers of criminalising teenagers who explore sexual communication and development with each other through virtual media.

This has been a hotly debated topic for some time, especially in relation to the frankly absurd disparity between the age at which a person can be criminalised for the exchange of sexual images and the age at which an individual is legally permitted to engage in sexual intercourse. Currently, the age of consent is 16, meaning that an 18 year old and a 16 year old are perfectly entitled to commence a physically intimate relationship. What that 18 year old is not legally permitted to do is take any photographs of a sexual nature during the course of that relationship, or encourage his/her 16 year old partner to do the same.

Thus the s.67 offence may be successful where the current web of sexual offences has failed. The intention of Parliament is clearly to criminalise adults who seek to conduct online conversations of a sexual nature with children under 16. However, whilst many commentators have expressed the view that this offence is necessary to “plug a gap” in the current framework to criminalise those engaged in online grooming behaviours, it should be noted that there is in fact no requirement that the activity under s.67 is of a grooming or manipulative nature.

Taken on its strictest interpretation, it is just as likely that this offence could be utilised against the 18–19 year olds who send unsolicited messages of a sexual nature via social media to individuals who subsequently turn out to be under 16. The assessment of whether the defendant should have “reasonably believed” that each individual was 16 or over will be one for a jury. Whilst the burden falls on the prosecution to prove that a defendant did not reasonably believe the individual was under 16, the jury will have to determine this matter on a subjective (ie, according to what they think the defendant actually believed, and whether it was reasonable in all the circumstances) rather than on an objective assessment of what age the person would assume the individual to be.

A person found guilty of the s.67 offence will face up to two years’ imprisonment, and will be subject to notification on the sex offenders’ register under the usual rules. It is anticipated, in addition to the notification requirements, that the new offence will also attract the ability of the courts to impose a Sexual Harm Prevention Order (“SHPO”). A SHPO can be imposed either for a fixed time specified by the Court, or indefinitely until further order is made. It can – among other requirements – restrict the offender’s access to individuals under a certain age, demand the imposition of electronic monitoring software on any computer accessed by the offender and prohibit foreign travel for at least five years.

Once s.67 is brought into force, it will undoubtedly give police and prosecutors the power to target those adults online who target children for sexual exploitation. This is an important step forward in a world where children are increasingly engaging with the world through a computer screen and without the constant supervision of parents or guardians. What will be interesting to see is whether the other available sexual offences currently being utilised in cases of this nature will any longer feature on the indictment, given the evidential difficulties and thresholds involved. The prediction from the ground is that this offence will henceforth become the go-to charge in “sexual offences by social media” prosecutions. Providing that the ages of the individuals make the offence available on the facts, it will be extremely difficult for defendants to escape criminal liability where the content of conversations are laid bare for all to see.

This article was originally published in Criminal Law & Justice Weekly and can be accessed via a PDF here

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