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R v G and F [2013] Crim LR 678

Conspiracy – Rape – Conspiracy to Rape a Child – Sexual Offences – Judicial Direction - Appeal

Facts

After police searched one of the defendant’s (G) flat, they found indecent images of children on a laptop computer.   The police then searched his mobile phone and found a number of text messages exchanged between the two defendants.  These text messages detailed an explicit plan to rape a six year old boy.  One of G’s acquaintances had a child of the same age who matched the description of the boy discussed in the text messages.  The defendants were arrested and charged with conspiracy to commit rape of a child under the age of 13 contrary to s5 Sexual Offences Act 2005.  The defendant’s pleaded not guilty, were convicted and now appealed on the grounds that there was no agreement or conspiracy to rape the child and so there was no case to answer.

Issue

Whether the text messages sent by G to F constituted an agreement to commit a criminal offence and so a conspiracy.  Whether it was required that the parties to the conspiracy intended to carry out their agreement or whether it was a fantasy.

Held

The appeal was allowed.  No reasonable jury, properly directed could be sure on the evidence of the text messages alone that the defendants intended to carry out the agreement.  The Crown had not produced evidence to show that the defendants had met, were in close physical proximity and so had the opportunity to carry out their plan.  In cases like this where there was a discussed plan but it was not carried out a judge should give a direction to the jury on how to infer intent by summing up the sources of evidence that could be used by a jury to suggest that the defendants actually intended to carry out their plan rather than to simply fantasize about the agreement.  This was not done by the judge.


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