Jersey Unreported Judgments

[2010]JRC109

ROYAL COURT

(Samedi Division)

11^th June 2010

Before     :

Sir Philip Bailhache, Commissioner, sitting alone.

The Attorney General

-v-

David Roy Forno

S. M. Baker, Esq., Crown Advocate.

Advocate S. A. Pearmain for the Defendant.

JUDGMENT

THE commissioner:

1.        This application raises an interesting point of law in relation to the offence of inciting the commission of a criminal offence.  The defendant has been charged, inter alia, with a number of offences of inciting children to make indecent photographs of themselves contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994, and with inciting one of those children to distribute indecent photographs of herself contrary to Article 2(1)(c) of the 1994 Law. 

2.        Counsel for the defendant accepts that he did encourage each child (except one) to make an indecent photograph of herself and that he encouraged one child to distribute such an indecent photograph.  The Indictment contains 25 counts alleging offences against nine girls, who were aged between 10 and 13 at the material time.  The defendant is a 35 year old man who had been employed as a teacher.  The defendant's modus operandi was to assume the persona of a 14 year old boy named Liam and to insinuate himself into the contacts of numbers of children on a social networking website.  Having made contact with different children, he would, under the disguise of his assumed persona, engage in salacious talk and ask the girl to expose herself to him on camera.  Sometimes the girl would comply, sometimes she would not.  In the first case, the complete offence of making an indecent photograph has been charged; in the second, incitement to make an indecent photograph. 

3.        The facts relating to the six counts of incitement can be briefly stated.  In each instance, the defendant communicated his encouragement to the children to do the acts via an internet based instant messenger service.  In relation to Count 1, the defendant, while viewing the girl via the webcam, encouraged her to strip naked, rub her vagina and to insert her finger into it.  In respect of Count 7, the defendant encouraged the child to send him a conventional digital photograph of herself of an indecent nature.  In respect of Count 11, the defendant encouraged the child to take a picture of her breasts.  In respect of Count 12, the defendant encouraged the child to take a photograph of her upper body, stripped to her bra.  In respect of Count 15, the defendant encouraged the child to show her naked breasts and vagina to him via the webcam.  In respect of Count 23, the defendant, while watching the child over a webcam, encouraged her to lift her top and to lower her pants.  The defendant accepts the facts alleged, save in relation to Count 15. 

4.        The submission made by the defence is essentially very simple.  It is that the making or distribution of photographs by these children involved no criminal offence on their part.  It follows, so counsel submits, that the defendant cannot commit the offence of inciting them to do that which did not amount to an offence on their part. 

5.        Counsel relied upon the law as it has developed in England following the case of R-v-Tyrrell [1894] 1 QB 710.  In that case, the girl, Jane Tyrrell, was convicted of having aided and abetted, counselled and procured the commission of the misdemeanour of having unlawful carnal knowledge of her whilst she was between the ages of 13 and 16, contrary to Section 5 of the Criminal Law Amendment Act 1885, and with having incited the said act.  On appeal, it was argued that at common law a person cannot be convicted of a misdemeanour committed upon herself, and that consequently she cannot be convicted of aiding and abetting such a misdemeanour.  Lord Coleridge CJ stated:-

"The Criminal Law Amendment Act, 1885, was passed for the purpose of protecting women and girls against themselves.  At the time it was passed there was a discussion as to what point should be fixed as the age of consent.  The discussion ended in a compromise, and the age of consent was fixed at sixteen.  With the object of protecting women and girls against themselves the Act of Parliament has made illicit connection with a girl under that age unlawful; if a man wishes to have such illicit connection he must wait until the girl is sixteen, otherwise he breaks the law; but it is impossible to say that the Act, which is absolutely silent about aiding or abetting, or soliciting or inciting, can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.  I am of opinion that this conviction ought to be quashed."

6.        Tyrrell's case was followed in R-v-Whitehouse [1977] 3 All ER 737 where the conviction of a man who had pleaded guilty to inciting his 15 year old daughter to commit incest with him was quashed by the Court of Appeal.  For the purposes of the appeal, the Court construed the Indictment as charging the appellant with the offence of inciting a girl of 15 to aid and abet him to commit incest with her.  The issue was whether such an offence was known to law.  The Court identified two difficulties.  The first was that at common law, the crime of incitement consists of inciting another person to commit a crime.  Secondly, a woman under the age of 16 cannot commit the crime of incest.  Scarman LJ, giving the judgment of the Court, accepted that a person, provided that she was of the age of criminal responsibility, could be guilty of aiding and abetting a crime even though she could not be guilty of it as a principal in the first degree.  The illustrations of that principle are R-v-Eldershaw (1828) 172 ER 472 where it was held that a boy presumed impotent because under the age of 14, could nonetheless be guilty of rape, as a principal in the second degree; and R-v-Ram and Ram (1893) 17 Cox CC 609 where it was held that a woman could aid and abet rape so as to be guilty of rape.

7.        Scarman LJ then posed the rhetorical question:-

"But what if the person alleged to be aiding and abetting the crime is herself the victim of the crime?"

The learned judge concluded that the girl belonged to a class of persons which is protected but not punished by the Sexual Offences Act 1956.  He continued:-

"In our judgment it is impossible, as a matter of principle, to distinguish R-v-Tyrrell from the present case.  Clearly the relevant provisions of the Sexual Offences Act 1956 are intended to protect women and girls.  Most certainly s 11 is intended to protect girls under the age of 16 from criminal liability, and the Act as a whole exists, insofar as it deals with women and girls exposed to sexual threat, to protect them.  The very fact that girls under the age of 16 are protected from criminal liability for what would otherwise be incest demonstrates that this girl who is said to have been the subject of incitement was being incited to do something which, if she did it, could not be a crime by her.

One can only avoid that conclusion if one can pray in aid the doctrine of aiding and abetting and apply it to the crime committed by a man under s 10.  But R-v-Tyrrell makes it clear that to do that would be to impose criminal liability on persons who Parliament has intended should be protected, not punished.

We have therefore come to the conclusion, with regret, that the indictment does not disclose an offence known to the law because it cannot be a crime on the part of this girl aged 15 to have sexual intercourse with her father, though it is of course a crime, and a very serious crime, on the part of the father.  There is here incitement to a course of conduct, but that course of conduct cannot be treated as a crime by the girl.  Plainly a gap or lacuna in the protection of girls under the age of 16 is exposed by this decision.  It is regrettable indeed that a man who importunes his daughter under the age of 16 to have sexual intercourse with him but does not go beyond incitement cannot be found guilty of a crime."

8.        The third case relied upon by counsel for the defendant was R-v-Claydon [2006] 1 Cr.App.R 20 where the appellant had been convicted of inciting a boy under 14 to commit buggery on a number of occasions.  The appellant appealed on the ground that at the time of the alleged offending there was an irrebuttable presumption of law that a boy under 14 was incapable of sexual intercourse.  The Court of Appeal, following the reasoning in R-v-Whitehouse, allowed the appeal. 

9.        Counsel for the defendant submitted that these cases were persuasive authority for the propositions that the Protection of Children (Jersey) Law 1994 was designed to protect children, that the children making these indecent photographs did not commit offences under the Law and that in inciting them to do these things, the defendant did not therefore commit an offence.  Counsel conceded that these propositions did create anomalies.  For example, a defendant who incited a 17 year old girl to take an indecent photograph of children contrary to the 1994 Law would commit the offence of incitement; if he incited a 15 year old girl to do the very same things, there would be no offence. 

10.      In England, the lacunae identified by the courts in R-v-Whitehouse and R-v-Claydon have been filled by statute.  Sections 8 and 10 of the Sexual Offences Act of 2003 create offences of causing or inciting a child to engage in sexual activity.  There are no precisely equivalent offences under the statute law of Jersey.  The offence of causing or inciting a child to engage in sexual activity under Article 4 of the Sexual Offences (Jersey) Law 2007 is restricted to situations where the offender is in a position of trust. 

11.      The Crown Advocate submitted that the fallacy in the reasoning of the defendant's argument lay in the fact that the children in this case had all reached the age of criminal responsibility.  Nothing in the Protection of Children (Jersey) Law 1994, he contended, supported the proposition that a child of either gender over the age of criminal responsibility could not be convicted of an offence under the 1994 Law.  If, for example, an enterprising 15 year old girl were to distribute indecent photographs of herself or other children for profit, there was nothing which prevented such a person from being prosecuted under the 1994 Law.  The Tyrrell principle (which was essentially that a person for whose protection a law has been passed cannot be convicted of aiding or abetting the person committing the offence against her) did not prevent such a conclusion.  The example of a girl distributing indecent photographs would not be a case of punishing a girl for offences committed against her; it would be a case of punishing her for offences committed by her.  Viewing the matter more broadly, it is indeed possible to distinguish the Tyrrell principle from situations arising under the 1994 Law.  The purpose of the 1994 Law is not merely to protect individual children from the depredations of a paedophile; it is to protect all children from the depredations of all paedophiles.  The making and distribution of indecent photographs of children feed the depraved appetites of all paedophiles who see the photographs, and not just the appetite of the offender who takes or solicits the taking of the photographs. 

12.      If I had to adopt one of the constructions put before me by counsel, I should have preferred the arguments of the Crown Advocate.  But even this construction involves an acceptance that a prosecution for incitement can be avoided if the person incited is legally incapable of committing the offence.  Thus if, in the example given above, a 9 year old child distributed indecent photographs of children, he or she could not be prosecuted; and both counsel submit that a person inciting such behaviour would escape conviction and punishment.  That does not seem to me to be an attractive result.  Is that the position at customary law in Jersey?  

13.      Both counsel agreed that the elements of the customary law of incitement appear never to have been defined by this Court.  Procuring the commission of an offence was acknowledged to be a distinct offence in itself in AG-v-McGuire [1991] JLR Note 13.  The Court held in that case that procuring acts of gross indecency could not be regarded as part of the offence of indecent assault and, if charged separately, merited consecutive sentences.  The same principle must apply to incitement on the basis that the only difference between procurement and incitement is that with the former the criminal act is completed, whereas with the latter it is not essential that it should be completed.  To invite another to commit an offence is itself an offence at customary law, even though the incitement is ineffective and fails to achieve its purpose.  No cases have been found in the reports or in the Table des Décisions indicating that this Court has followed the reasoning of the English Court of Appeal in AG-v-Whitehouse. 

14.      In Whitehouse, Scarman LJ held that he was bound by longstanding authority, but I am not so bound, both because the matter has not been considered before and because there is no doctrine of stare decisis.  The Court cannot make new law, but it can declare the boundaries of existing offences.  At one time, the Court asserted a power to punish whatever seemed offensive or criminal.  The Royal Commissioners reported in 1847, at page xxvi:-

"Other offences are cognizable under a power, which the court seems to assume, of punishing generally whatever appears in its nature to be offensive or criminal.  To this, it seems, we are to refer to the Law on coining (which has been punished here only since it ceased to be treason in England), sedition, misconduct of officers, returning from transportation or banishment, provoking a breach of the peace, nuisances, brothel keeping, indecency, unchasteness, solicitation of chastity.  For these, the court imposes punishments in its discretion, varying from transportation to imprisonment and fine."

15.      That power was given its quietus in AG-v-Thwaites (1978) JJ 179.  At 190, the Court stated:-

"In the first place, we have no hesitation in saying that the Royal Court now no longer has a general or residual power to create new offences ...."

The Court added, however:-

"The Solicitor General did not in any way dissent from that principle, but he submitted that it was the function of the Court to declare the common law [sic] and the boundaries of established categories of crime (with which, of course, we agree), that the act of committing a public mischief was an established category of crime and that the Court should therefore declare the boundaries of that crime."

This Court accordingly has the jurisdiction to declare the boundaries of the customary law offence of incitement. 

16.      It seems to me that persuasive guidance may be found as to the parameters of the offence of incitement in Jersey from the law relating to procurement, or procuring the commission of a criminal offence.  In the context of sexual offences, it is common to charge a man who solicits or encourages a child to touch his penis or to masturbate him with "procuring the commission of an act of gross indecency by AB, a child of the age of [9] years ...."  It matters not whether the child is 9 (and under the age of criminal responsibility) or not, because what the accused is alleged to have procured is the commission of an act of gross indecency by (or with) a child.  The focus is not on whether the child was committing or could have committed a criminal offence but on the nature of the act itself.  It is the grossly indecent conduct which the accused has procured that gives rise to the offence.  In relation to procurement, this has been the established position at customary law for a very long time.  

17.      The approach in England appears to be different.  In Fairclough-v-Whipp (1951) 35 Cr. App. R. 138 the accused was convicted of indecent assault upon a child aged 9 when he indecently exposed himself to her and invited her to touch his penis.  The Divisional Court held that an invitation to touch him could not amount to an assault and the conviction was quashed.  This conduct does not appear to be dealt with in England by charging the accused with procuring the commission of an act of gross indecency.  Inciting the commission of an act of gross indecency became an offence in England under Section 1 of the Indecency with Children Act, 1960. 

18.      While I would reject the submissions of counsel for the defendant on the footing of the contentions of the Crown Advocate, I prefer to reject them on a broader basis.  In my judgement, the offence of incitement in Jersey does not have as its focus the person at whom the incitement is aimed (the person incited) but rather the conduct which the incitement sought to encourage.  If that conduct is criminal, and the accused has sought to bring it about, the offence is made out.  It does not matter that the person incited could not, as the result of some legal presumption or inhibition, himself or herself have committed the criminal act which was incited.  If, for example, a person incites a 9 year old child to commit murder, it is no defence for him to say that the child is legally incapable of committing murder.  If the child in Count 1 had been aged 9 rather than 10, it would not have afforded the defendant a defence to a charge of inciting the making of an indecent photograph of her contrary to Article 2(1)(a) of the 1994 Law.  Equally, it does not matter that the person incited did not know that the intended act was criminal.  

19.      At customary law an incitement to commit a criminal offence may therefore be defined as the solicitation or encouragement of another to do or cause to be done an act which is by its nature criminal.  Incitement must of course be directed at a person; but the legal incapacity of that person to do the criminal act does not exonerate the inciter from criminal responsibility.  The two elements of the offence are:-

(i)        a solicitation or encouragement to do or cause to be done an act which is by its nature criminal. 

(ii)       mens rea.  

This approach appears to me to have a number of advantages.  First, it avoids the absurdity of imposing criminal responsibility upon an accused person for inciting criminal conduct when the person incited is aged 10, but not when the person incited is aged 9.  Secondly, it avoids the confusion as to whose mens rea is involved, which was resolved in England only in 2005 by the decision of the Court of Appeal in R-v-Claydon.  The mens rea to be proved by the prosecution is not that of the person incited, but that of the inciter.  Thirdly, it is consistent with the long established practice of the courts in relation to the offence of procuring the commission of a criminal offence. 

20.      Count 1 of the Indictment laid against the defendant correctly records the statement of offence as being "Inciting the making of an indecent photograph of a child, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994".  The particulars of offence would be better framed as follows:-

"David Roy Forno, on or about 20^th June, 2008, in the Island of Jersey, incited the making of an indecent photograph of herself by Miss X, a female child then aged 10 years old".  

Nothing really turns upon the phraseology employed in the particulars of offence for the purposes of this case.  The adoption of the form of words set out above would, however, serve to remind all those concerned with law enforcement that the focus should be on the act which is solicited or encouraged rather than on the person incited.  

21.      I would add, for the sake of completeness, that I have not ignored the provisions of Article 1 of the Criminal Offences (Jersey) Law 2009 which make it clear that the offence of incitement applies equally to statutory offences as it does to customary law offences.  The parameters of the offence of incitement are the same, whether the offence which is encouraged is a crime, délit, or a contravention. 

22.      The application of the defendant is accordingly dismissed. 

Authorities

Protection of Children (Jersey) Law 1994.

R-v-Tyrrell [1894] 1 QB 710.

Criminal Law Amendment Act 1885.

R-v-Whitehouse [1977] 3 All ER 737.

R-v-Eldershaw (1828) 172 ER 472.

R-v-Ram and Ram (1893) 17 Cox CC 609.

Sexual Offences Act 1956.

R-v-Claydon [2006] 1 Cr.App.R 20.

Protection of Children (Jersey) Law 1994.

Sexual Offences Act of 2003.

Sexual Offences (Jersey) Law 2007.

AG-v-McGuire [1991] JLR N 13.

AG-v-Thwaites (1978) JJ 179.

Fairclough-v-Whipp (1951) 35 Cr. App. R. 138.

Indecency with Children Act, 1960.

Criminal Offences (Jersey) Law 2009.