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Sexual Communication with a child overview

This is relatively new offence, to help you better understand the legal issues and avenues of defence I have summarised and explained the key legislation. 

Introduction

This offence was introduced in 2017 to cover scenarios of communication with a child under the age of 16 which is sexual. It fills a previous gap in the law so that a person can be charged when their contact with the child may be regarded as being in the initial stages of grooming but has not gone as far as inciting sexual activity. Previously, these communications could not result in criminal charges until the communication had developed further.

It is now a criminal offence for an adult to intentionally communicate, for example, by e-mail, text message, chat room, messenger service, written note or orally, with a child under 16, whom the adult does not reasonably believe to be aged 16 or over, for the purpose of obtaining sexual gratification, if the communication is sexual or intended to encourage the child to make a communication that is sexual.

 

It should be noted that ordinary social or educational interactions between children and adults or communications between young people themselves are not captured under this offence.

Sentencing depends upon the nature and circumstances of each case.

Some firms will scare you with risks of prison sentences, I do not think that is fair, it also distracts you from focusing on dealing with your case in a proactive and productive fashion.

 

Despite the risk of imprisonment I would advise that for straightforward cases of sexual communication with a child an immediate custodial sentence is highly unlikely, the most likely sentence would be a community order or suspended prison sentence. 

 

Police investigations into this type of case can take many months. Large amounts of materials and many devices are often seized including computers, tablets, memory cards, USB sticks, external hard drives and mobile phones. They are subject to forensic analysis with their contents downloaded and assessed.

Sexual communication with a child offences can lead to be placed on the sex offenders' register and the imposition of a Sexual Harm Prevention Order (SHPO). Below I have tried to answer common questions but contact me to discuss your case

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Why you should get advice as early as possible

Due to the stigma involved in such sensitive cases an accused individual can have their reputation irreparably damaged, even before a fair trial takes place.

 

Being involved in an investigation relating to sexual communication with a child can be very stressful. The long and uncertain process can be intrusive and emotionally traumatising, affecting an individual’s work life, family life and beyond.

 

If you, a family member or a friend are accused of a sexual communication with a child offence, or are just concerned about what could happen if accused, seeking specialist legal advice at an early stage can dramatically improve the outcome of a case.

 

Sexual communication with a child is a very complex area of law, by taking specialist, confidential and non-judgemental advice can help you take back control of the situation and reduce unnecessary stress and anxiety. 

 

Although it can be tempting to do nothing and hope the whole situation goes away, acting positively at an early stage can avoid jeopardising a legitimate defence, there are also occasions where co-operating effectively with a police investigation can lessen the potential consequences and even avoid a Court appearance or conviction.

 

As a solicitor with specialist knowledge of the law I would recommend that you think carefully before trusting your case to a general legal aid firm. Your case is too important, this area of law is too complex to be left to chance, book an appointment or contact me and start the process of putting your life back on track.

What should I do if I have been accused of a sexual communication with a child?

Simply get specialist legal advice as soon as possible. Don’t wait to speak to a duty solicitor, don’t expect the Police to help you and don’t trust your future to well-meaning charity advisors. Getting expert legal advice at the earliest stage can make a significant difference to the outcome of your case. Contact me now.

How is the offence of sexual communication with a child committed?

The legislation for sexual communication with a child reads as follows: 

On 3 April 2017, section 15A of the Sexual Offences Act 2003 came into force (inserted by the Serious Crime Act 2015, section 67).

 

A person aged 18 or over (A) commits an offence if:

 

1.     for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),

 

2.     the communication is sexual or is intended to encourage B to make (whether to A or to another) a communication that is sexual, and

 

3.     B is under 16 and A does not reasonably believe that B is 16 or over.

 

For the purposes of this section, a communication is sexual if:

 

1.     any part of it relates to sexual activity, or

 

2.     a reasonable person would, in all the circumstances but regardless of any person's purpose, consider any part of the communication to be sexual;

 

“Sexual activity” means an activity that a reasonable person would, in all the circumstances but regardless of any person's purpose, consider to be sexual.

 

A person guilty of an offence under this section is liable to imprisonment for a term not exceeding 2 years.

 

What are the defences for sexual communication with a child?

It is a defence for the adult to raise a reasonable belief that the person with whom he/she was communicating was over 16.

It is a defence to raise that the communication was not sexual or was not intended to encourage a communication that was sexual. 

It is a defence to raise that the communication with the child was not intentional or for the purposes of obtaining sexual gratification.  

The success of such any defence would depend upon the available evidence on each case, For more specific advice contact me

What happens if I have been caught by a vigilante group?

The police and Crown Prosecution Service have considerable concerns in relation to the involvement of individuals or groups of individuals who are members of the public that act catch alleged suspects. The CPS website highlight their concerns about the admissibility of evidence gathered by vigilante groups, with issues of entrapment and unfair presentation of evidence. The CPS highlight that such groups or individuals will be prosecuted if they themselves have broken the law in relation to their activities. 

Contact me if you have been caught up in a vigilante type sting operation, it may be that the evidence is inadmissible and that you are the victim of an offence. 

 

What happens if I have been caught by a undercover police officer?

One of the reasons the Police and CPS are not keen on vigilante groups is because they themselves operate undercover to pose as children to capture adults who then engage in sexual communication, or arrange to meet up with a child, with the intention of committing a child sex offence. However, there remain strict rules and the Police cannot entrap a person into such an offence. 

Contact me if you have been caught up in an undercover police operation, although you would expect the Police to operate within the rules to avoid the case being dismissed for entrapment, each case is different and evidence needs to be fully scrutinised to ensure it is admissible.

What are my rights if the Police want to interview me?

A suspect will be interviewed formally by the Police and given an opportunity to give an account, either putting forward a defence or admitting criminal behaviour. This interview is incredibly important, if you find yourself in this situation you must make sure you have a solicitor present.

 

An interview under caution can take place on the day the Police seize devices, or it can take place many months later after all the devices have been analysed. In some cases there will be two interviews, once when devices are sized and again once devices have been analysed. It is not always the case that a suspect will be arrested and taken to the Police station, interviews can be conducted anywhere, even at a home address when devices are seized, but always remember anything said will be recorded and can then be used against you, which is why having a solicitor present is essential.

 

It is vitally important to remember that anyone interviewed under caution, either at a police station or elsewhere, (even at home), is entitled to have a solicitor present to advise them. You have the right to nominate a specific solicitor and the police cannot then interview you before that solicitor attends. You do not have to use a Police arranged duty solicitor. I would strongly advise against using a duty solicitor, you will get a random legal representative from a local law firm, often the person that represents you will not be a solicitor but a police station advisor, and sadly many solicitors and advisors from general criminal defence firms are unsympathetic to suspects accused of child sex offences. Just as concerning is their knowledge of this complex area of law can be limited, leading to poor advice that can have a damaging effect on the outcome of your case. As an experienced solicitor with specialist knowledge I can represent you during interview.

 

It can be tempting to skip this fundamental legal right, perhaps out of embarrassment or in the mistaken belief it will save time. The Police have been known to discourage suspects from having a solicitor, but always remember the Police are not on your side, they want you to admit an offence to reduce the amount of investigating they have to do. Saving yourself some time or inconvenience by co-operating with the Police is not wise, always get legal advice before you say anything that could be incriminating, contact me for representation. 

Will I go on the the sex offenders register?

Yes, if you are convicted of an offence regarding sexual communication with a child, you will be required by law to sign onto the sex offenders’ register. See my separate section on the sex offenders' register for further information.

Am I going to prison? What sentence will I get?

The maximum sentence for sexual communication with a child is 2 years in prison. 

 

 Some firms will scare you with risks of prison sentences, I do not think that is fair, it also distracts you from focusing on dealing with your case in a proactive and productive fashion.

Despite the risk of imprisonment I would advise that for straightforward cases of sexual communication with a child an immediate custodial sentence is highly unlikely, the most likely sentence would be a community order or suspended prison sentence.  

In all cases the Court has the discretion to suspend any prison sentence of up to 2 years.

It is my job to keep you out of prison by persuading the Judge to impose a community order or suspend any prison sentence, it requires thorough case preparation and good advocacy that carefully highlights any offence specific or personal mitigating circumstances. For more specific advice Contact me now.

Can I get a Caution for sexual communication with a child instead of going to Court?

It is unlikely, but it is not impossible. Much depends on the nature, extent and individual circumstances of the case, in addition to any relevant personal circumstances of the defendant.

 

A prosecution will usually take place unless there are public interest factors against prosecution which outweigh those in favour. The decision by the police to administer a caution will ordinarily be made in conjunction with the CPS.

 

It is my aim always to get you the best possible result, if a caution is realistically achievable, I will make targeted representations to the Police and Prosecution services, backed up by expert reports, references and any other evidence that may be persuasive. I will always try to avoid a court hearing and conviction whenever possible. Contact me for further advice.