Serious Crime Bill [HL]

Written evidence submitted by the NSPCC (SC 01)

About the NSPCC

The NSPCC is fighting to end child abuse in the UK by helping children who have been abused to rebuild their lives, protecting children at risk, and finding the best ways of preventing child abuse from happening. We achieve this through a combination of service provision, campaigning and public education.

E xecutive s ummary

1. The NSPCC is concerned that there is inadequate protection for children from adults who send sexual material to them. Current law in this area is fragmented and confused, and ‘bites too late’ in the grooming process meaning the child may already have suffered abuse. It also fails to recognise the nature of grooming where the abuser aims to flatter the child. We propose creating a standalone offence of an adult intentionally sending a sexual message to a child.

2. The NSPCC welcomes the Government’s commitment to introduce a new law that would make sexual communication with a child a criminal offence. We want to ensure the amendment is worded robustly so there is no doubt that it is always illegal for an adult to send a sexual message to a child.

3. The NSPCC has gathered evidence from the police which demonstrates that the convoluted nature of existing law poses a problem when dealing with adults who send sexual messages to children.

4. The Sexual Offences (Scotland) Act 2009 makes it an offence to send or direct sexual communication to a child aged under 15. Although the Act has several shortcomings, it shows the increased powers which police in England, Wales and Northern could have that would enable them to intervene earlier in cases of sexualised contact between adults and children, preventing abuse escalating.

5. We would be happy to give oral evidence to the Committee should that be helpful.

Sexual messaging: the problem

6. Young people are experiencing all sorts of new forms of abuse via technology. Many parents tell us that keeping their children safe online is a key concern for the welfare of their child. Last year there was a 168% increase in contacts to ChildLine from children about online sexual abuse.

7. The NSPCC is concerned that there is currently inadequate protection for children from adults who send sexual material to them (primarily over the internet). This material could be visual, written or verbal.

8. The fragmented nature of current law in this area makes it hard for police to deal with sexual messaging appropriately. Legislation covering this predates the widespread use of the internet, including social networking sites. Without clarity in this area, vital opportunities to stop abusers grooming young people online are being missed. More needs to be done to enable the police to take early action to prevent abuse escalating, reducing the risk to children and young people, and helping to keep them safe online.

9. Drawing on the Sexual Offences (Scotland) Act 2009, we propose creating a standalone offence as an amendment to the Sexual Offences Act (2003), of an adult intentionally sending a sexual message to a child.

10. The early stages of the online grooming process typically do not see adults sending intentionally malicious messages to children. The adult often flatters, seeking to gain the trust of the child. We are concerned the law does not ‘bite early enough’ in the online grooming process. Creating this new offence would help protect children from unwanted and distressing sexualised contact online, enable action to be taken against offenders at an earlier stage of the grooming process, and help prevent abuse escalating.

Inadequacies in the current law

11. At the #WeProtect Children Online Global Summit in London in December 2014, the Prime Minister committed to introducing a new law that would make sexual communication with a child a criminal offence. This was a welcome step, reflecting the call made by the NSPCC’s Flaw in the Law campaign.

12. There have been suggestions that there is already adequate provision in existing law to cover online grooming. The NSPCC does not agree. Existing legislation is not clear and in many cases, the defence could argue that the threshold required for the communication to be covered by the offence had not been met.

Sexual Offences Act (2003)

13. Section 10 of the 2003 Act, which makes it an offence for an adult to cause or incite a child to engage in sexual activity, is insufficient as there are many cases where a charge of incitement may not be met. In most cases of online grooming the adult seeks to flatter the child, attempting to gain their trust, before inciting the child to engage in a sexual activity such as sharing an indecent photo of themselves. At the point at which a child has been incited to engage in sexual activity, a vital window of opportunity to prevent further abuse has been lost. The purpose of the new clause would be to give the police greater powers to intervene earlier in the process of online grooming before abuse escalates.

     Malicious Communications Act (1988)

14. Messages that are indecent or grossly offensive would fall foul of Section 1 of the 1988 Act. However, there has to be intent to cause distress or anxiety and this is not always the case with an adult sending a sexual message to a child in the early part of the online grooming process, where the message is more likely to flatter and compliment the child.

Communications Act (2003)

15. A grossly offensive, indecent, obscene, or menacing message would also fall foul of Section 127 of the 2003 Act. However, in cases of adults sending children sexual messages the defence could argue that that the threshold has not been met. Perpetrators do not necessarily try to be offensive or to frighten the child. Often the perpetrator tries to convince the child that they are special and this is a loving act.

Current position

16. We are now concerned with ensuring that the amendment to the Serious Crime Bill, which introduces the new law, is worded robustly. There must be no doubt that it is always illegal for an adult to send a sexual message to a child.

Evidence from the p olice

17. The NSPCC has established a clear evidence base for the new law to ascertain whether the existing legal framework poses a problem in dealing with adults who send sexual messages to children. This has been developed in part with the assistance of the Association of Chief Police Officers.

18. The majority of police forces the NSPCC spoke to agreed there was a gap in the law that needed to be filled. Detective Inspector Martin Hillier, Head of the Sexual Exploitation Unit with Nottinghamshire Police said: "This is a major issue for us within sexual exploitation investigation – clearly the disclosure of age is critical which in some cases does not take place via chat and in other cases may be disclosed later in the relationship. The behaviour is commonly referred to as sexualised chat but as you have stated if it does not involve incitement to commit offences, direct sexual activity or preparation to meet then we are always struggling. Clearly there are no direct offences committed under the SOA2003."

19. Responding to a question about how they deal with sexual messages, some police forces said they often feel that the criminal threshold has not been met so it is difficult to pursue a prosecution. In these instances some forces stated that they will look for other behaviour where there is clarity that an offence has definitely been committed, such as posession of child abuse images. Where police concerns about an adult sending sexual messages to a child fall short of the criminal threshold, some said they may visit and discuss the behaviour with the adult. Two forces struggled to answer the question due to difficulties in searching their records.

20. When asked if current legislation adequately addresses situations where grooming occurs online, without any intention on the offender’s part to meet the child, a majority of respondees agreed that current legislation is insufficient. Detective Inspector Robert Chitham of the Kent Police Paedophile Online Investigation Team said: "The current legislation does not adequately address the online issues outlined that fall short, (as most do) of the threshold for criminal prosecution. If such a law was enacted, it would significantly enhance our ability to deal more effectively with online offences, and go a long way to safeguard children exposed to such offences."

21. Police forces were asked specifically whether the Sexual Offences Act (2003) has shortcomings in tackling sexualised contact between adults and children. There was unanimity among respondees that the Act has shortcomings. Numerous officers said there was a difference between the ‘sexualised chat’ they often see at the preliminary stages of online grooming and content or messages that could be defined as sexual under the Sexual Offences Act (2003). Detective Inspector Linda Howard of the Hampshire Constabulary said: "There are currently difficulties in dealing effectively with those people who message children with what is an obvious attempt (to us) to groom but they do not go on to arrange to meet child. A standalone offence would make it much easier to safeguard vulnerable children, deal effectively with those offenders and also send a very clear message to those who may be thinking about contacting children for sexual means."

22. Police forces were asked what difference it would make if a standalone offence was created under the Sexual Offences Act (2003) that made it always illegal for an adult to send a child a sexual message. The majority of respondees said it would be helpful, citing the ability to intervene earlier and prevent ‘hands on’ offences being committed as specific benefits. Detective Superintendent Gemma Booth of the Child Exploitation Invesitgation Unit at the Derbyshire Constabulary said: "A standalone offence, under the Sexual Offences Act, making it illegal for an adult to send a child a sexual message would provide earlier enforcement opportunities." Several respondees did note caution about the potential impact this could have on their resources and how a ‘sexual message’ would be defined.

23. Finally, forces were asked how often they used the Malicious Communications Act (1988) or the Communications Act (2003) to prosecute cases of adults sending sexual messages to children. The response was mixed. Several forces stated that neither Act is appropriate, whilst others said they do utilise the Malicious Communications Act (1988) but either the number of successful prosecutions under the Act was low, or they could not be specific about individual cases.

Sexual messaging in Scotland

24. The Sexual Offences (Scotland) Act 2009 made it an offence to send or direct sexual communication to a child aged under 15. It is a useful model to consider. However, there are three aspects of this law that we would not seek to replicate in our proposal:

25. Firstly, under Sections 24 and 34 it has to be proven that the offender’s purpose was to obtain sexual gratification or to humiliate, alarm or distress the victim. Scottish police tell us that the requirement to prove ‘sexual gratification’ is too high a threshold and it has blocked prosecution in some cases.

26. We would also not seek to replicate the wording of ‘humiliating, distressing or alarming B’ as set out in Sections 24 and 34. This fails to recognise the nature of grooming, where the abuser aims to flatter and build trust with the child rather than send indecent or offensive communications. We want the law to enable prosecution of sexual messages before the abusive behaviour escalates.

27. Section 39 of the Act provides a defence to Section 34 that the accused reasonably believed that the child had attained the age of 16 years. Under Section 39, a defence can be mounted if the difference in age at the time of which the charge took place does not exceed two years. We would not seek to replicate this two year age gap. Scottish law makes it possible to prosecute a child but the NSPCC believes it is rarely in the best interests of either child (in the scenario of where the defendant and victim are both children) to prosecute. We would only want the proposed law to apply to adults.

Scottish case studies

28. Below are examples of media reports from Scotland regarding convictions for adults entering into sexual communications with children under 16.

29. In August 2013, 55 year old Stephen McLaren admitted sending sexualised written communications to a ten year old girl for the purposes of obtaining sexual gratification. McLaren was prosecuted receiving a sexual offence prevention order, 300 hours unpaid work, and a £1,000 fine.

30. Sean Baird was a 19 year old football referee who sent an indecent Facebook message to a 14 year old girl. The girl had not responded to the messages but instead told her football coach and police were subsequently informed. Baird was put onto the Sex Offenders Register for five years and fined £300.

Data on Scottish legislation

31. Convictions under Sections 24 and 34 of the Sexual Offences (2009) Act are low but rising slightly. However, the reported and recorded crimes figures potentially represent more useful figures in that they give an indication of the level of additional investigation which needs to be carried out by Scottish Police when these offences have been reported.

		2010-11	2011-12	2012-13
Section 24 Communicating indecently with a child under 13	Reported	73	74	103
	Recorded	15	73	97
	Convicted	1	4	6
Section 34 Communicating indecently with a child aged 13-15	Reported	95	123	233
	Recorded	25	95	150
	Convicted	0	5	22

32. Reported offences under Section 24 have increased by about half since the law was introduced. Over 90% of reported offences become recorded offences by 2012/13.

33. Reported offences under section 34 have more than doubled to 233 in 2012/13 and by 2012/13 close to two thirds of reported offences are subsequently recorded as a crime.

34. To put these figures into context, there were 3,369 sexual offences against under-18s in 2012/13. Offences under sections 24 and 34 accounted for 7.3% of all sexual offences against under-18s in Scotland.

Resourcing impact for the police

35. The evidence from two police forces indicated concerns about the impact of introducing this offence on their ability to resource policing it. Whilst the new offence could create an increase in reports, we believe the evidence from Scotland shows it would not be excessive in relation to police resource and time.

36. The new offence would also mean that offenders were charged earlier so there would potentially be a dip in other recorded offences, such as ‘causing or inciting a child to engage in sexual activity’ or ‘meeting a child following sexual grooming’. This means the increase may be offset by decreases in other crimes, and also a reduction in the resources police need to pursue and prosecute these crimes. The new offence would also mean thousands of children across England, Wales and Northern Ireland could be protected, and could also act as a deterrent to some potential offenders. The new offence would therefore enable the police to act upon available evidence (of sexual communication) with greater clarity and, potentially, less burden.

January 2015