Case No: 2011/04111/B2 & 2011/04113/B2
Neutral Citation Number: [2012] EWCA Crim 1756
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM READING CROWN COURT
HHJ JOHN
T20107121
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2012
Before :

LORD JUSTICE AIKENS
MR JUSTICE SWEENEY
and
MR JUSTICE SUPPERSTONE
- - - - - - - - - - - - - - - - - - - - -
Between :

	Daniel Terence GODDARD and Robin Jack FALLICK	Appellant	
	- and -		
	Regina	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr. C Parker QC & Mr. A Morris (instructed by Hines Solicitors) for the Appellant
Mr. J Price QC (instructed by CPS) for the Respondent

Hearing date : 13/07/2012
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Aikens :
1.	On Friday 13 July 2012 we heard appeals against conviction brought by Daniel Goddard and Robin Fallick, aged respectively 35 and 27.  The appellant Goddard also appealed against sentence.  All appeals were brought with the leave of the single judge.  At the end of the hearing of the conviction appeals we announced that they would be allowed for reasons that we would set out in writing.  These are our reasons.   As Goddard’s appeal against conviction was allowed his sentence appeal became immaterial and we did not hear argument about it.

The convictions and sentences

2.	On 17 January 2011 in the Crown Court at Reading before HHJ John the two appellants pleaded guilty to a number of offences of making or possessing indecent photographs of children.   They are not the subject of the present appeals but are relevant to them nonetheless.  

3.	 On 23 June 2011 after a trial before HHJ John and a jury at Reading Crown Court the two appellants were both convicted of conspiracy to rape a child under 13.  That allegation was the subject of count 1 on the indictment. The particulars of the offence stated that Goddard and Fallick “between 14th day of September 2006 and 16th day of September 2006 conspired together to rape a male child under the age of 13 years”.    For that offence each appellant was sentenced to 6 years imprisonment.   Goddard was sentenced to 6 months imprisonment for the indecent photograph offences,  to be served consecutive to the conspiracy offence.   The total sentence imposed on the appellant Goddard was therefore 6 ½ years less time spent on remand.    Fallick was sentenced to a total of 14 months imprisonment for the indecent photograph offences, also to be served consecutive to the sentence of the conspiracy offence.  Thus Fallick’s total sentence was 7 years and 2 months less time spent on remand.  

4.	Orders consequent upon those convictions and sentences were also made;  in particular both appellants were subject to Sexual Offences Prevention Orders (“SOPOs”) and requirements to register as sex offenders.

5.	The appellant Fallick was acquitted of making one indecent photograph of a child (level 1), which was the subject of count 16.   The jury were discharged from giving a verdict on count 2 which was an alternative to count 1.   That count alleged that Fallick had incited Goddard to rape a child under 13 years.   On the prosecution’s case the child concerned was the same one as was the subject of count 1.  

The facts

6.	The facts that gave rise to the charges started to come to light as a result of a police search of Goddard’s flat in Slough on 7 August 2007 when he was first arrested.   His laptop was seized and was found to contain many indecent images of children which became the subject of counts 3 – 14 to which Goddard pleaded guilty.   His mobile phone was also seized and analysed.   A number of text messages from Fallick were found on it.   Fallick’s number was stored on Goddard’s phone as “Rob in2 young”,  which was interpreted as meaning “Rob into young”.   

7.	A number of text messages received by Goddard from Fallick dated 15 September 2006 appeared to represent one side of an exchange about raping a six year old boy.   The exchanges start at 09.35 and go on until 15.10.   They are as follows:  

	Time (hour:min:sec)			Message  Fallick to Goddard 
09:35 				I need some help rapin a 6yo
09:37:06			Next friday night
09:39:57			Its rob in slough
09:41:53			tis ok. So your in?
10:46:27			He’s about 4ft dark hair and eyes, slim, toned stomach tight round ass and perfect legs. Really soft smooth skin and ruby red lips.
11:02:29			He’ll be with me, he’s 6
11:09:18 		Next friday. Yes we can do stuff but we need to make sure he doesn’t drop us in it. i’m best friends with his mum, drug him is a poss?
11:12:45			He’ll be at school
11:34:46		Yeah all night. And maybe saturday too.
12:49:30		Your thick cock will open his mouth nicely for mine. i’ll open his ass ready for you. how many sleeping pills do you reckon
12:53:36		I thought about 3 or 4, to totally knock him out. finally a bit of kid fun at last.
15:10:24		Ya know wat, fuck the sleeping pills, i wanna hear him moan and scream. I don’t care if he says anything. I’m a pedo and proud.”
8.	On 31 March 2009 both appellants were arrested; Goddard in Slough and Fallick in London.   Fallick was found to have indecent photographs of children stored on a hard drive, laptop and memory stick.  These formed the subject matter of counts 15, 17 and 18 to which Fallick pleaded guilty.   The police also seized two cameras one of which contained a photograph of a girl, whom we shall call ML, taken in the garden of her home in July 2006.   Fallick denied taking the photograph.   It was said to be indecent and that was the subject of count 16 of which Fallick was acquitted. 

9.	Both appellants were interviewed on 31 March 2009.  Both declined to answer questions.  Their evidence at the trial was that this decision was made on the advice of their respective solicitors.  

10.	On 10 June 2009 the police visited Fallick’s home again and found further indecent images of children which had been downloaded since Fallick’s previous arrest.  Those formed the subject of count 19 to which Fallick pleaded guilty.

11.	Fallick was friendly with a woman called LL, who had three children.  One was the girl ML and another was a boy called HL who had been born in May 2001.  In September 2006 he was, therefore, 5 ½ years old.

The prosecution case and the defence response

12.	The prosecution case was that the text messages from Fallick to Goddard on 15 September 2006 which we have set out above were evidence of an agreement to rape a young boy.   The prosecution also relied on evidence of text messages sent by Goddard to others, apparently showing an interest in raping young boys.  The prosecution further relied on the convictions of the appellants of possessing indecent photographs of children as showing a keen sexual interest in young boys and also in demonstrating a willingness to break the law in relation to young children.    Further evidence on which the prosecution relied to prove that this was a serious plan which was intended by both appellants to be carried out, as opposed to a fantasy,  was the fact that there were text messages from Fallick which referred to a particular boy, whom the prosecution said was HL,  the son of Fallick’s friend LL.  The prosecution said HL was the target of the rape plan.   The prosecution alleged that this boy was someone to whom Fallick had access through his friendship with the boy’s mother.   There was evidence that Fallick had said to LL that the boy could stay with him, although in fact he had never done so.   

13.	The defence case was that there was no agreement to rape a child and that the text message conversations between the two appellants represented a fantasy from which each gained sexual pleasure and that there was never,  either at the outset or thereafter, any intention to carry out any plan.   The appellants relied on the fact (which was the case) that they had never met and that in the time that had passed between the exchange of messages on 15 September 2006 and their arrests on these matters in 2009, nothing at all had been done to carry out this alleged plan and the boy who had been the alleged target had not been harmed in any way.   

Application to dismiss count 1 and the trial

14.	On 17 January 2011 the judge heard an application to dismiss counts 1,  2 and 16 of the Indictment, viz.  the charge of conspiracy to rape a male child under 13,  incitement to rape a male child under 13 and taking an indecent photograph of ML.    In relation to count 1 it was submitted that it should be dismissed because no agreement to commit conspiracy to rape could be inferred from the evidence on which the Crown relied because the texts represented only one side of a text conversation between Goddard and Fallick.  The judge rejected that argument.   He gave reasons and noted that the argument had centred on whether, on the basis of the texts set out above,  a jury could properly infer that there had been an agreement between the two defendants to rape a male child under 13.   The judge accepted that there could be no speculation on what might be on Mr Fallick’s mobile.   He continued,  in relation to count 1 (page 3C-G):

“It has been attractively argued on behalf of Mr. Fallick that if one puts together the issues of opportunity; capability; the passage of time between the sending of the messages and the analysis of the phone and intention, that there is no evidence to support a conspiracy between the two men and so the question for me, therefore, is simply whether there is evidence upon which a jury could, if it chose, safely infer that Mr. Goddard was responding positively to the suggestions in Mr. Fallick’s text that Mr. Goddard should assist him in the rape of an identifiable child.
I have carefully considered both the content and the sequence of the text set out in the defence skeleton arguments. I am satisfied that it would be open to a jury properly to infer that a plan was being worked through between Mr. Fallick and Mr. Goddard, hence the request for clarification in some of the texts, and that it would be properly open to a jury to infer an agreement to participate in the planned rape from that content and that sequence of the texts which are available. I, therefore, reject the application to dismiss count one.”

15.	The trial began on 20 June 2011.   At the outset the Crown applied to adduce the guilty pleas to the indecent photograph offences as “Bad Character” evidence against the two appellants,  pursuant to the “gateways” set out in section 101(1)(d) and (f) of the Criminal Justice Act 2003.  The prosecution argued that the persistent downloading of images of child abuse at the relevant time made it more likely that the defendant concerned would seriously embark on the plans alleged in counts 1 and 2 (in the case of the appellant Fallick) and count 1 in the case of Goddard.   Counsel for both defendants argued that the evidence of the indecent images was not relevant to the issue of whether the defendants were sexually interested in young children because that issue was conceded on the evidence of the texts.   Mr Morris,  who appeared at the trial for Goddard,  submitted to the judge that the central issue that the jury would have to decide in relation to count 1 was whether there really was a plan to carry out the agreement which appeared from the texts or whether it was just a fantasy of the two men.   He submitted that the indecent images could not be evidence that would assist the jury in deciding that issue: (page 18B-D of transcript).    

16.	The judge indicated his view,  in argument,  as follows (page 20H):

“It is difficult,  it seems to me,  to say that two men who have been downloading over considerable periods material of this kind are not demonstrating  a persistent interest in young boys and I would have thought an admission to that effect would be lest harmful to their case than the risk of what the Crown’s application entails”.

Following these exchanges between the judge and counsel for the appellants,  it was agreed that the evidence relating to the indecent images the subject of the guilty pleas should  go before the jury as an agreed fact.  

17.	The prosecution then called its evidence.  LL gave evidence that she was a friend of Fallick in 2006.  She did not leave any of her children alone with him.  She never asked him to babysit but he did say that if she needed a babysitter he would help.   She said that Fallick had suggested that HL should stay with him on more than one occasion and HL had said that he would but when it came to it on each occasion HL would not go.    

18.	The “no comment” interviews were put in evidence,  albeit rather more for what was not said than what was said. 

19.	At the close of the prosecution case the two appellants submitted that there was no case to answer on both counts 1 and 2.   The judge rejected those submissions.  He said that he was satisfied,  for the reasons that he gave in his ruling in the dismissal application,  that there was sufficient evidence to go to the jury in relation to counts 1 and 2.   He said: “the evidence…is effectively the same as it was when I gave that ruling on 7 January [2011]”. 

20.	The two appellants gave evidence.   Goddard explained that he had never met Fallick until the court case.   He admitted that he had downloaded images of young boys from August 2005 to August 2007 and that he would look at them and pleasure himself.  That gave him sexual gratification.   His evidence was that he had chatted on-line to others about having sex with young boys but he said that he had never taken steps to have sex with children and had never wanted to have sex with any young child.  

21.	He agreed that he had been part of a text conversation with Fallick on 15 September 2006 and that he must have replied and asked questions which elicited the next response in the sequence.   He may have said that he was interested in taking part but he was not, in fact.    The text No 23 on page 120 of the exhibits (“he is about 4 ft” etc) from Fallick to Goddard would have been in response to him (Goddard) asking what the boy looked like.  This would have been to make it realistic and was part of the fantasy.   Goddard said that he would have asked “who is he” and “where is he” and then masturbated to the answers given. 

22.	In cross-examination on behalf of Fallick Goddard said that the contact with Fallick lasted about 2 weeks and then ceased.    In cross-examination on behalf of the Crown,  Goddard admitted that he had a persistent interest in young males and that the idea of having sex with them was exciting to him.  He said that the idea of raping a young male was exciting to him but that he would not have actually done it.    He agreed that when he was specifically asked in interview whether the text messages were fantasy,  he had answered no comment,  on the advice of his lawyer. 

23.	The appellant Fallick gave evidence that he had met LL in 2004.  They became quite close and had been to one another’s homes.   He accepted that he had met Goddard on a gay chat-line in September 2006.  He agreed that the conversations were sexually explicit and that they dealt with young boys and that the purpose of them was to achieve sexual gratification whilst masturbating.   He had never met Goddard and did not know where he lived.   He said that the description in message No 23 was generic and did not relate specifically to HL.  He would never have carried out what was implicit in the messages.  He had no other discussion with Goddard apart from the message sequence that was before the court and he did not contact him after that sequence had finished.

24.	In cross-examination Fallick accepted that he had a sexual interest in young males and that in September 2006 he had obtained sexual gratification from fantasies involving them.    In answer to the question that his continued downloading of images of boys even after he had been arrested and when he knew it was contrary to the law showed that he had a strong and persistent interest in young children he answered “in context,  yes”.    He accepted that the idea of raping a young child was sexually exciting to him but that was only fantasy.   He agreed that the text messages were detailed and realistic.  He agreed that HL did indeed have dark hair and eyes.  But he said that the description given in the text was generic and that it was a coincidence that it was similar to that of HL.

The Grounds of Appeal

25.	There are three broad grounds of appeal on conviction that are advanced by both appellants, on whose behalf Mr Christopher Parker QC appeared on appeal.  (He did not represent the appellants at the trial).   The first ground is that the judge was wrong to reject the submission of no case to answer at the close of the prosecution case.   He should have accepted it because there was no evidence on which a reasonable jury, properly directed, could be sure that each of the appellants in question intended that any apparent agreement to rape a child should be put into effect.   In Mr Parker’s phrase, there was no evidence of “executory intent”.    As part of this ground it is argued that the judge failed to consider what prosecution evidence,  if any,  could be relied on by the jury to make them sure of this executory intent.   

26.	The second ground is that the judge failed to direct the jury in his summing up on the issue of how they should approach evidence of intent that was founded solely upon inference from the facts that were before them.   It is submitted that the judge should have identified carefully the possible evidence that could found a conclusion by the jury that there was the necessary “executory intent” and he failed to do so.   

27.	The third ground concerns the “bad character” evidence.   This ground breaks down into a number of points.  First, it is said that this evidence (even in the form of admissions) should not have been permitted to go before the jury at all.  Secondly it is submitted that the judge failed to direct the jury as to the area of its relevance or the limited purpose for which it could be used.  Thirdly,  the converse to that is also urged, namely that the judge erroneously directed the jury to the effect that they could rely upon making or taking indecent images of children to infer that the appellants intended that the rape should be committed.    Lastly it is said that the judge failed to give the jury an adequate warning, in respect of this bad character evidence, against prejudice from revulsion induced by the indecent photographs of children that comprised this “bad character” evidence.

Ground One:  failure to accept submission of no case to answer on count one:  the legal test

28.	There was some discussion before us of the correct test that should be adopted in a case like the present when a submission of no case to answer is made.   On behalf of the Crown,  Mr John Price QC (who also did not appear at the trial) accepted that in this case there had,  in fact,  been no steps to carry out the agreement to commit the criminal act in question,  viz.  the rape of a male child under 13 years of age.   It was,  of course,  common ground that the Crown had to prove that,  at the time that the agreement to commit a criminal act was concluded,  each defendant intended in fact to carry out the unlawful plan.   It was further agreed that,  in this case,  that intent could only be inferred from other facts as proved;  there was no direct evidence of such intent in relation to either defendant.  

29.	The long-standing test to be applied upon a submission of no case to answer is that in R v Galbraith [1981] 1 WLR 1039 at 1042B-D.  The statement of Lord Lane CJ need not be set out yet again.    In the present case it had to be accepted (for the purposes of the submission of no case at least) that there was sufficient evidence of an agreement to rape a male child under 13 such that a jury, properly directed,  could so find.  The key issue for the judge therefore,  was whether,  at the close of the prosecution case,  there was sufficient evidence that a jury,  properly directed,  could infer that there was an intent on the part of each of the defendants,  at the time the agreement was concluded,  to carry out that agreement.   

30.	A similar issue arose in R v Hedgcock,  Dyer and Mayers [2007] EWCA Crim 3486,  in which the three defendants were accused of conspiracy to rape a girl under the age of 16 and conspiracy to murder a girl under 16.   The prosecution case in relation to Hedgcock and Dyer was based on internet conversations between the defendants in internet “chat rooms”,  in the course of which Hedgcock sent to Dyer pictures of his goddaughter and sister,  aged 15 and 14 respectively  (although introduced over the internet as being younger).  This court held that there was clearly evidence on which a jury could reasonably conclude that there was an agreement to rape a girl under the age of 16.  The key question for this court was whether the judge should have accepted a submission of no case to answer,  on the basis that there was insufficient evidence from which a jury,  properly directed,  could reasonably infer that the defendants had the “executory intent” at the time the agreement was concluded.
31.	Laws LJ gave the judgment of the court.  At [19] he said that there had been argument as to “the correct approach to be taken by a jury in a criminal case to an invitation by the Crown to draw an inference adverse to a defendant from primary facts”.   He referred to a statement of Lord Diplock in Kwan Ping Bong v R [1979] AC 609 at 615G and statements of Moses LJ in R v Jabber [2006] EWCA Crim 2694 at [20]-[21].    Laws LJ said that he did not think that there was much difference in the result of both statements.  He then said (at [20])  that “…Elementarily the jury must apply the criminal standard of proof to the exercise of drawing inferences as [they must] to every other facet of the fact-finding process”.   Laws LJ continued,  at [21]: 

“The question was whether a reasonable jury  properly directed,  not least as to the standard of proof,  could draw the inference proposed and thus (as it was put in Jabber) reject all realistic possibilities consistent with innocence.  That approach seems to us to be entirely consistent with Lord Diplock’s remarks.   If at the close of the Crown’s case the trial judge concludes that a reasonable jury could not reject all realistic explanations that would be consistent with innocence,  then it would be his duty to stop the case.  What is the position here?”.
32.	Laws LJ then considered the facts.   He said,  at [26],  that in the “highly unusual circumstances” of that case,  the jury could only conclude that the participants (to the “chat room” conversations) actually intended to carry out the agreement to rape if there was some extraneous evidence favouring that interpretation.  The conclusion the court reached was that the internet conversations only carried the matter so far,  but the other “objective circumstances” if anything pointed the other way. 

33.	The statements of Laws LJ in Hedgcock,   together with those of Moses LJ in Jabber,  were considered in the very recent decision of this court in R v Anthony Darnley [2012] EWCA Crim 1148.   In that case,  the appellant had been convicted of a dwelling house burglary.  The police had found a fabric handkerchief in the burgled house and when that was subjected to DNA tests it was found that the DNA profile consisted of a major DNA profile which matched that of the appellant and a minor profile.  The prosecution said that this DNA evidence,  together with his previous convictions (evidencing propensity) and his admitted relapse into drug use all led to the inevitable adverse inference that the appellant had committed the burglary.   On appeal it was said that the judge was wrong to reject the submission of no case to answer. 

34.	Elias LJ gave the judgment of the court.  At [18]  he referred to the  statement of Moses LJ in Jabber,  at [21] of that case that “…to draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence”.    He also referred to the statement of Laws LJ in Hedgcock  at [21] set out above.    Elias LJ stated, at [19],  that when a judge is considering a submission of no case to answer,  those “tests” (our quotation marks) should not be substituted for the classic test in Galbraith.  

35.	Elias LJ commented that Moses LJ,  in Jabber,  plainly did not intend to depart from the traditional test.  Then,  having made further quotations from the judgment of Moses LJ in Jabber,  Elias LJ continued,  at [21]:

“…we think that the focus should be on the traditional question,  namely whether there was evidence on which a jury, properly directed could infer guilt.   It is an easier test, not least because it focuses on what a reasonable jury could do rather than what it could not do.  Reasonable juries may differ because the assessment of the facts is not simply a logical exercise and different views may reasonably be taken about the weight to be given to potentially relevant evidence.  The judge must be alive to that when considering a half-time application.   Of course,  if the judge is satisfied that even on the view of the facts most favourable to the prosecution no reasonable jury could convict,  then the case must be stopped.   As Moses LJ points out [in Jabber] that conclusion will necessarily involve accepting that not all realistic possibilities consistent with innocence can be excluded.   It does not, however, follow that the tests are equally appropriate or that either can be adopted by a trial judge”.

36.	We think that the legal position can be summarised as follows:  (1)  in all cases where a judge is asked to consider a submission of no case to answer,  the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith.   (2)  Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution,  the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence.   (3)  However,  most importantly,  the question is whether a reasonable jury,  not all reasonable juries,  could,  on one possible view of the evidence,  be entitled to reach that adverse inference.    If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest,   then the case must continue;  if not it must be withdrawn from the jury.

37.	Thus, in the present case,  the vital question for the judge to consider was whether a reasonable jury could be entitled to infer,  on one possible view of the prosecution evidence,  that it was sure that each of the defendants intended to carry out the agreement to rape a male child under 13.     However,  it is plain,  as Mr Price was prepared to accept,   that this specific issue was neither identified nor dealt with by the judge either at the dismissal application or at the submission of no case to answer.   Therefore,  as counsel accepted before us,  we have to examine the evidence,  as adduced by the prosecution,  to see whether or not there was evidence from which a reasonable jury could infer  (on one possible view of that evidence) that each of the defendants intended to carry out the agreement to rape a male child under 13.

No case to answer:  the facts in the present case

38.	Mr Parker made the following submissions:   (1) he accepted that the messages are, on the face of them, capable of being read either as an agreement or as a fantasy.     However,  (2)  he points out that they do not disclose whether the appellants had ever met before, or whether they were living in close proximity or whether they had any realistic means of effecting their plan.   There was no prosecution evidence that they did meet either before or after the exchange.   (3) The description of the possible child victim is generic.   (4)  He accepted that there was evidence from other messages that were sent or received by Goddard which demonstrated that he did obtain sexual gratification from the discussion with other men of child sexual offences,  but that fact also was equivocal.  (5)  There was no extraneous evidence that either appellant had taken any steps to execute the plan during the extended period between the texts being sent (in 2006) and their arrest for the count 1 offence in 2009, so that there was no evidence of overt acts to support a conclusion that,  at the time of the agreement to commit the unlawful act – if there was one – that there could be inferred on the part of each defendant that he intended to put the agreement into effect.  In short,  the prosecution evidence,  at its highest,  could not entitle a reasonable jury to be sure that it could infer that each of the defendants did intend to carry out the agreement evidenced by the text exchanges.

39.	Mr Price,  for the Crown,  submitted that there was sufficient evidence.  He relied upon the following facts in particular which he said would entitle a jury to be sure it could infer an intent to carry out the plan:  (1) the text exchange itself.   (2)  The fact that there was no evidence of masturbation by the defendants when the exchange took place.  (3)  The fact that no visual pornographic material was exchanged between the two defendants (unlike Hedgcock).   (4)  The fact that Fallick knew LL (who described him as her “best friend”)  and her son ML,  who,  it could be inferred,  was the specific intended child victim.   Fallick had given an accurate description of the child and had sought to be alone with him.   (5)  The fact that both defendants possessed indecent images of male children.  This indicated their sexual interest in young boys and their willingness to break the law to pursue such interest.   (6) The fact that both defendants had given “no comment” interviews and had not answered specific questions about whether this was a fantasy or not.  In that regard Mr Price drew our attention to section 34(2)(c) of the Criminal Justice and Public Order Act 1994,  which provides that when a court is considering whether an accused has a case to answer it can take account of the fact that he failed to answer questions in interview.   Mr Price also drew our attention to section 38(3) of that Act which states that a submission of no case to answer cannot be rejected solely on the basis of such silence.  
 
40.	We have concluded that no reasonable jury, taking the prosecution evidence at its highest,  could surely infer that the defendants intended to carry out the agreement.   The evidence is all equivocal;  it is as consistent with fantasy as with an intent to carry out the plan.   It is particularly striking that these men never met at any stage, either before or after the text exchange nor did they even suggest meeting to discuss the plan further.  Nor is there any evidence that they took any steps to advance the plan beyond suggesting “Friday night”.   No place or time or other practical details are identified.   Nothing at all happened after the exchange of text messages.    We appreciate that their silence in interviews and failure to mention that this was all a fantasy can be taken into account.   But that is of very little weight given the other facts or rather lack of them.

Conclusion on Ground One

41.	Accordingly,  we would allow the appeal on this first ground alone.  

The Other Grounds of Appeal

42.	This conclusion makes it unnecessary for us to rule on the other grounds.   However,  we do wish to comment shortly on some aspects of those grounds and in particular on the directions given by the judge in his summing up in this case.  The first concerns the issue of whether the defendants had any executory intent to carry out the agreement at the time it was made.   The judge correctly identified this as an ingredient of the offence comprised in count 1 at 4F of the transcript.  We appreciate that in most cases it is wise for a judge to give no elaboration on how to infer intent other than the general one that intent is to be inferred from what has been said and done and the surrounding circumstances.   However,  in the circumstances of the present case,  where the prosecution case was that there was a conspiracy but it was accepted that the unlawful plan was not put into action,  we think that something more is needed precisely because there was simply no evidence of any overt act to show that the plan was being or was to be put into operation.    In such circumstances,  particularly where the allegation (a conspiracy to rape a young boy) is likely to be repulsive to the members of a jury,  we think that it is important that the judge should identify specifically and in one place in his summing up the sources of evidence that the jury could use in order to draw the inference that the two defendants intended,  at the time the agreement was made,  to carry it out.   In this case the judge did not do so,  nor did he specifically warn them that they had to be sure that there was the necessary intent,  as opposed to this all being a fantasy.   If necessary we would have allowed the appeal on that ground as well.

43.	So far as concerns the admission of the offences of possessing indecent images of children as “bad character” evidence,  we have three comments to make.   First,  it seems to us that the judge did not fully grasp the fact that there was no issue between the parties about the defendants’ sexual interest in young boys.  That was clearly admitted.  So there was no point in admitting those offences as “bad character” evidence on that issue.   Secondly,  the judge does not appear to have considered specifically whether the admission of those offences could be evidence of either an agreement to rape a male child  under 13 or evidence of an intent to carry out the plan.   The point was clearly identified by Mr Morris in the course of submissions during the application to admit that evidence.   We think that if the judge had analysed the matter he would have been bound to conclude that the admission of those offences could not assist in relation to those two points,  whereas their admission would be highly prejudicial to the defendants.  In our judgment,  they should not have been admitted,  either pursuant to section 101(3) of the Criminal Justice Act 2003 or pursuant to section 78 of the Police and Criminal Evidence Act 1984.  
44.	Lastly,   we consider that if that evidence had been properly admitted,  the judge would be bound to give careful directions as to the proper and limited use that could be made of that evidence by the jury.   The judge set out at 11C-E of the transcript of his summing up what the prosecution case was in relation the evidence of the indecent image offences,  viz. that it demonstrated an unhealthy sexual interest in young boys and that made it more likely that what they were doing on that date in September was in earnest and showed a real agreement to rape a child.   But the judge does not then give the jury a specific direction on precisely what that evidence could be used for.   

45.	In our judgment he should have given three directions.   First,  he should have stated that that evidence could not be used to demonstrate that there was an agreement as such.   Plainly the independent possession of indecent images could not be evidence of an agreement between two people as to a proposed course of action.   Secondly,  he should have directed the jury that those offences could not be used as evidence of an intent to carry out the plan,  for the same reason – they were independently obtained and did not relate to the plan at all.   Thirdly,  assuming that the evidence was properly before the jury at all,  the judge should have given a careful warning that the jury must not,  by reason of those offences,  conclude that the defendants must have committed the conspiracy offence.   He did not do that.   

Conclusion

46.	The appeals are allowed and the convictions quashed.   The convictions in relation to the other matters remain,  but it is accepted by the Crown that in consequence of the appeals being allowed,  the terms of the SOPOs must be amended.    Paragraphs 2 and 4 are no longer necessary and must be deleted.