Appellate Decision in BNE v R Sheds Light on Evidence Disclosure and Public Interest Immunity in Decoy Operations

Citation: [2023] EWCA Crim 1242
Judgment on

Introduction

In the appellate decision BNE v R [2023] EWCA Crim 1242, the Court of Appeal (Criminal Division) scrutinizes the relevance and disclosure of certain evidence within the context of a decoy operation conducted by law enforcement. The appeal contends with the refusal to disclose the true age of a person depicted in images sent to the appellant, who faced conviction for offences pertaining to sexual communication with a minor. This case instigates an exploration of legal principles surrounding Public Interest Immunity (PII) and the disclosure of evidence in cases involving undercover operations.

Key Facts

The appellant was convicted for attempted sexual communication with a child (Count 1) and attempting to incite a child to engage in sexual activity (Count 2). The appellant’s contention was that he believed he was communicating with an adult engaged in a role-playing fantasy, despite the explicit claim that ‘X,’ an undercover officer’s pseudonym, was 14. This belief hinged on ‘X’s’ profile specifying her as 18, among other indicators like language used and obscured images provided by ‘X’ which the appellant construed to depict an adult.

During the trial, the defense requested disclosure of the person’s age in the images sent by ‘X,’ arguing its potential effect on the appellant’s belief about ‘X’s’ age. The prosecution declined, and a Public Interest Immunity (PII) hearing ensued, resulting in non-disclosure ruled by the trial judge. The core question was the relevance of the true age of the person in the images to the appellant’s belief regarding ‘X’s’ age and the reasonableness of such a belief.

The legal discourse pivoted around two primary statutes from the Sexual Offences Act 2003—Section 10 (Causing or Inciting a Child to Engage in Sexual Activity) and Section 15A (Sexual Communication with a Child) that target the protection of minors. Under these provisions, an offence is committed if there is an absence of reasonable belief that the alleged victim is 16 or over.

The appellant contested the conviction based on the failure to disclose the true age of the person in the images. The principle drawn from R v H & C [2004] 2 AC 134, dictates that the evidence must meet the benchmark of undermining the prosecution or assisting the defence to necessitate disclosure, unless outweighed by a compelling public interest. In decoy operations, PII issues arise concerning undercover officer anonymity and the confidentiality of investigative methods.

Two potential scenarios regarding the decoy images were outlined:

  1. If the image is a true and unaltered likeness of a person over 16 – disclosure of age is necessary.
  2. If the image is digitally modified or created to fit the decoy profile – the age of the source person is irrelevant, but the digital modification must be disclosed.

The court further relied on R v Ishaqzai [2020] EWCA Crim 222, which outlines the jury’s task of determining a defendant’s belief about the age of a person and the reasonableness of that belief, based on the context and evidence presented.

Outcomes

The Court of Appeal concluded that the appellant’s convictions were unsafe due to potential jury assumptions about the person’s age in the images. This could inadvertently prejudice the defendant’s case. Therefore, the judgment was:

  • Convictions for both counts quashed.
  • Orders for a retrial.
  • The ruling related to the non-disclosure during the initial trial was identified as constituting unfair prejudice against the appellant, directing a change in the management of similar cases in the future.

Conclusion

In the wake of BNE v R [2023] EWCA Crim 1242, the Court of Appeal has illuminated a significant aspect of evidence disclosure and PII related to decoy operations in sexual offence cases. Key legal principles outlined dictate that while safeguarding investigation techniques is essential, it must be balanced with the disclosure of evidence that can be critical to the fairness of a defendant’s trial. This case serves as a precedential compass, directing future conduct in comparable cases, ensuring that justice offers an impartial reflection of necessary legal discernment.

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