November 2015

Man who encouraged child rape on adult chatline fails in appeal after claiming behaviour was ‘reasonable’

A man found guilty of a statutory breach of the peace for encouraging the rape of children on an adult chatline has failed in an appeal against conviction.

Judges in the Criminal Appeal Court refused the appellant’s claim that his behaviour in the particular circumstances was “reasonable”, describing it as “disgusting, abhorrent and shocking”.

Lady Smith, Lord Bracadale and Lady Clark of Calton heard that on 19 February 2015 Dean Preston was convicted at Dundee Sheriff Court of behaving in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm, after making statements on a chatline in which he swore and promoted and encouraged the rape and other sexual abuse of children, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

The court was told that the appellant subscribed to a chatline called “Mantalk,” provided by 4D Interactive Media, which enabled access to adult social media services.

When accessing 4D’s chatlines, users are required to specify their particular interests in an introductory message which is recorded and moderated by 4D employees, who can reject any such message if it breaches industry guidelines.

Callers are also warned that introductory messages and subsequent conversations are recorded, by way of an automated message at the start of each call.

If a complaint is made, 4D employees listen to the call and decide whether or not to report it to the child protection service, which may then pass the report to the police.

However, a technical fault in the 4D system meant that, on occasion, callers might come across a wrong message or find themselves participating in a conversation they had not intended to join and therefore become exposed to a wider range of content which they would find alarming.

On Sunday 27 May 2012, the appellant telephoned “Mantalk” from his landline and having placed an introductory message, made statements which led to a complaint to 4D by another caller.

A 4D employee then listened to the message and passed it on to the Child Online Protection Service, which in turn, passed it on to the police in Dundee.

The appellant did not dispute that his making of the statements met the tripartite requirements of section 38(1) of the 2010 Act in that they were abusive, would be likely to cause a reasonable person to be alarmed and he was reckless as to whether they would cause alarm.

However, he sought to rely on the defence in section 38(2) of the 2010 Act, which provides that it is a defence for a person to show that “the behaviour was, in the particular circumstances, reasonable”.

At trial the appellant’s agent contended that the appellant’s behaviour could be construed as reasonable because it was “private and anonymous,” but the sheriff rejected the submission as the appellant was aware or ought to have been aware that calls and messages were being recorded.

The sheriff found that the chatline was the property of 4D and was accessible to the public, 4D employees might listen to the content and, given the technical fault, callers could “mistakenly stumble into conversations they had not intended to join”.

For the appellant, it was submitted that the sheriff had “erred” in rejecting the submission that the section 38(2) defence was made out. There was no issue with the findings in fact made by the sheriff, but the calls were “essentially private” and it was argued that in the circumstances the provisions of the subsection applied.

For the Crown, the advocate depute submitted that the sheriff had not erred. It was argued that the calls had “a wider actual and potential audience” and it was clear that the content relied on would be “alarming to a reasonable person”.

Delivering the opinion of the court, Lady Smith said: “The messages and statements to which this charge related referred to appalling sexual abuse of children and babies. The content was disgusting, abhorrent and shocking. It was bound to alarm any reasonable person.

“On the sheriff’s findings, there were three categories of person who could be exposed to their content. First, there were those who chose to engage in conversations with the appellant.

Secondly, there were those callers who did not choose to do so but, because of the technical fault in the 4D system, found themselves exposed to his statements. Thirdly, there were the 4D employees tasked with moderating introductory messages and/or listening to recordings when a complaint was received.

“The appellant‘s knowledge of the fault, the moderation of introductory messages and the recording of calls undermined his approach to use of the chatline as being an entirely private matter.”

The judges also noted, as the sheriff recorded, that the appellant accepted that the content would cause “fear and alarm to the general public”.

Lady Smith added: “We agree with the sheriff that it was not open to the appellant to pray privacy in aid and can find nothing in the particular circumstances of this case which might show that the appellant’s conduct, as described in the charge, was reasonable.

“On the contrary, as we have already observed, the statements were made in circumstances where the appellants’ actual and potential audience was not, as he knew, restricted to the caller that had chosen to talk to him.

“Further, the content referred to in the charge was disgusting, abhorrent and shocking. Any reasonable person would have been bound to be alarmed by it.”