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back to article Bloke jailed for being unable to use BlackBerry Messenger freed

A man jailed for 18 months after accidentally sending his BlackBerry Messenger contacts a filthy text intended for just his girlfriend has been freed on appeal. Craig Evans, 24, a swimming coach from Birmingham, was imprisoned after he sent everyone in his contacts book a note asking for "skin on skin" sex and querying whether …

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FAIL

Hmm, should this have ever gone to court?

So what happened to "intent" here? It is unfortunate what happened, but clearly it was a mistake. This should never have gone near a court in the first place.

Clearly a phone device that can go from "single person" mode to "everyone" mode with a simple slip of the fingers should not be used for sending intimate messages.

Or business messages, considering how businesses wish to keep internal communications, erm, internal.

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Happy

Re: Hmm, should this have ever gone to court?

I would have loved to have been a fly on the wall when he realised what he had done. I'm sure one day he will be able to laugh about the time he accidentally sent a lewd and libidinous message to friends, family and teenage girls and then got sent to the segregated wing of the nick.

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Anonymous Coward

Re: Hmm, should this have ever gone to court?

Exactly. Misunderstandings like this often form the plot of a sit-com... And he's been given a supervision order... supervised to make sure he now knows how to use his phone? If he really were trying to solicit sex with minors, he wouldn't have deliberately drawn attention to himself in this way. Natural justice would be to consider the embarrassment and humiliation he has brought upon himself.

I haven't used Blackberries, but have occasionally sent an unfinished email in a browser by forgetting that Tab doesn't give you an indent but rather switches to the next field. Sometimes my palm hits the touchpad when typing... However, I don't send sentiments like his by email.

I noticed that Google asked me if I was sure I wanted to send an email without an attachment because I had used the phrase 'is attached', though in a different context. Maybe the email client can be made to query any group-send email that contains a list of certain words... The trouble is, its like the beep my car makes if open the door when the headlights are still on... fine, as long as it works, but if the buzzer fails then I have been lulled into a false sense of security.

Gmail's 'Undo Send' is here:

http://support.google.com/mail/bin/answer.py?hl=en&answer=1284885

(that would be the one that you set a 30 second timer in advance, not Google's 1st April 'Delete Sent Mail' announcement from a few years back.

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Mushroom

Re: Hmm, should this have ever gone to court?

I'm sure one day he will be able to laugh about the time he accidentally sent a lewd and libidinous message to friends, family and teenage girls and then got sent to the segregated wing of the nick.

I doubt if he will laugh about now being on the Sex Offenders Register and unable to coach children ever again. Or, you know, get a job of any description.

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Re: Hmm, should this have ever gone to court?

This is why strict liability offenses (which this was) are so harmful - you can't be found not guilty due to a lack of mens rea if you performed the actus reus - and he unquestionably did perform the actus reus.

You'll note that they didn't get the conviction overturned. He's still on the sex offenders register (for, I believe, 14 years) and still has a criminal record. He's never going to pass an enhanced CRB check, which means he can't ever work with children again, so he's lost his job and will need to find a new career.

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Flame

Re: Hmm, should this have ever gone to court?

One does have to wonder what the DPP uses for brains these days. This guy, they alleged, deliberately sent this message to his girlfriend and his, mother-in-law, his ageing grandparents (of both genders), likely his father and his mother etc, etc. In other words to "world+plus+wife+dog" within his circle. They could not see that this could not possibly be anything other than a mistake? WTF? One also has to ask what the hell the judge in this case was doing.

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Trollface

Re: Hmm, should this have ever gone to court?

The article did not specify the age of his 'girlfriend'!

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Trollface

Re: The article did not specify the age of his 'girlfriend'!

Opps, sorry, slip of my fingers - I meant to upvote your troll attempt. Shows how easy it is to press the wrong button.

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Facepalm

Re: The article did not specify the age of his 'girlfriend'!

Son of a ... you friggen got me. I was gonna tell you that you can re-vote a post, but then I saw what you did there.

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Re: Hmm, should this have ever gone to court?

I would guess that a sensible person would conclude the guy made a mistake

A pervert would conclude that the person must have done it deliberately

To bring a prosecution and to find the guy guilty the DPP, the judge and the appeal judge must all have decided it was deliberate

This has a serious (but believable) implication

The next worrying thing is that the judge and the appeal judge decided it was deliberate and then decided it wasn't serious enough for a long sentence, and then thought it was even less serious when looked at again... so they evidently think such perversion is fine... which in someways confirms the first implication.

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Re: Hmm, should this have ever gone to court?

There's also a strong possibility that his address will show up on a "Find all the child rapists near your children" web site and he will get torn to pieces by a lynch mob.

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Re: Hmm, should this have ever gone to court?

Maybe he was playing the numbers game with all the teenagers, and the texts to parents/family/male friends were his alibi

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Anonymous Coward

Re: Hmm, should this have ever gone to court?

> So what happened to "intent" here? It is unfortunate what happened, but clearly it was a mistake.

Sending a text message to 13 and 14 year old girls, asking if they would like to have sex is illegal. It doesn't matter if it was a mistake or intentional, it is the act that is illegal. There are many acts that are illegal by themselves without needing intent. This is one of them.

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Unhappy

Re: Hmm, should this have ever gone to court?

What happens if your phone has a bug in it? My old HTC hero and desire had text messaging bugs where if you received a message while already mid replying to one it would alter the order and your reply would go to the next person in your message history. You would have no clue until returning to the thread view when it would load them all again, but during tapping away and checking the send to box it'd be fine.

Who's liable then? Doubt the police and cps would be tech savvy enough to understand you had no control over that. hell, google took a good year to get a handle on the bug to fix it too.

After sending messages to my mother in law and father but intended for mates I learned to never send messages I'd be embarrassed to say in front of family and friends... and definitely don't bad mouth the wife or her mother!!

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Re: Hmm, should this have ever gone to court?

English criminal law used to be entirely about intent. Intent is a very important differentiator between criminal and mistaken behaviour. You can, for instance, be prosecuted for the simple intent to commit certain crimes and rightly so, without ever doing anything more dangerous than gathering the materials necessary to carry out the crime - if you can be proven to actually have that intent.

Even crimes that appear to lack intent, such as manslaughter (for example, killing someone by running them over while driving dangerously) are usually the restful of intent to commit a related action. In the example case, driving dangerously: you choose to commit a potentially criminal act and in the process you cause a death.

Unfortunately the burden of proof for intent is very high, which is why we now have all these laws that criminalise acts without consideration of intent - it makes it much easier to bring prosecutions and bump up the stats, and consequently makes it much easier for politicians and the police to look like they're being tough on crime, when all they're actually doing is criminalising acts that are often either the result of misadventure, or are entirely innocent.

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FAIL

Re: Hmm, should this have ever gone to court?

Your attempt to say "it is the letter of the law, that the act itself is illegal" is the most corrupting of influences into what is supposed to be a JUSTICE system. Please explain to me the JUSTICE of forever branding a man who didn't even know he was communicating to minors as a sex offender? You have just perverted our rule of law from a JUSTICE system into a PENAL system. People with attitudes such as yours are very, very dangerous to a free and thinking society.

We use intent even in such grave situations as killing. If A hates B, and kills them in cold blood, then A is a murderer. If A doesn't even know B, but hits him with his car and kills him, then it is not the same murder charge, but (in the US) manslaughter, i.e., involuntary killing. A much lighter charge and penalty. And if B is threatening to harm A gravely, and A kills B, then it is self-defence, and A may be free of any charges at all. A has KILLED B in all three scenarios, but the INTENT is entirely different, as are the legal ramifications. To say that there are charges that, somehow, are mysteriously more serious than KILLING someone, and that therefore intent should not play a role in guilt or innocence, is frankly insane. As I said before, a very dangerous attitude that assaults the criminal JUSTICE system's very definition.

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Re: Hmm, should this have ever gone to court?

'OLD 'ON Guvna !

DID he perform the actus reus ?

1. He sent an email. In itself not an offence.

2. Said email was a bit burnt. In itself not an offence

3. His intent was to send it to his girlfriend. Unless SHE was offended, nuffink to see 'ere, move along !

He, at the time, was UNAWARE he sent the mail to everyone else. Not only did he not intend to (so no guilty mind), but, acording to his defense, he did not execute a deliberate action.

He can therefore only be acused of not RTFM'ming, but if we're going to start putting people away for that we're going to need more real estate in the 'Her Majesty's Pleasure' department.

So IF there was no crime (as there was no awareness nor intent on wrongdoing), the could try and 'do' him for intending the offence, but I think we've established there was no intent.

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Anonymous Coward

Re: Hmm, should this have ever gone to court?

> English criminal law used to be entirely about intent

English criminal law was never about intent, it has always been about the act. If there is an intent element then it is usually specified in the title of the offence.

As an example, there are the two offences of "Causing grievous bodily harm" and "Causing grievous bodily harm with intent". You might be charged with the former if you strike somebody who then falls to ground hitting their head and seriously injures themselves. You would be charged with the later if you then proceeded to repeatedly kick them whilst on the ground. You could probably successfully argue, in the first case, that you never intended to cause grievous bodily harm but this would not stop you being charged with it.

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Anonymous Coward

Re: Hmm, should this have ever gone to court?

> So what happened to "intent" here?

Sexual Offences Act 2003 Section 10:

10 Causing or inciting a child to engage in sexual activity

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

(a) he intentionally causes or incites another person (B) to engage in an activity,

(b) the activity is sexual, and

(c) either—

(i) B is under 16 and A does not reasonably believe that B is 16 or over, or

(ii) B is under 13.

What this article has is the **defence** lawyers version of what happened. What you do not have is the prosecutions version of what happened.

The act clearly states that intent is needed and since this was tried in a Crown Court the prosecution must have presented enough evidence to convince 12 members of a jury that this intent existed. Those 12 jury members would be familiar with the perils of sending texts to the wrong person but despite this still found the evidence convincing enough to return a guilty verdict based on **ALL** the evidence, not just the defences.

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Re: Hmm, should this have ever gone to court?

There used to be a requirement in English law for "mens rea" -- you not only had to do the thing that was illegal, you also had to have intent to break the law.

This requirement was dropped sometime, when it was found to be inconvenient as it made it too difficult to convict people.

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AC18:33: "It doesn't matter if it was a mistake or intentional, it is the act that is illegal."

The act of misrepresenting the law to fellow commentards is illegal and you should go straight to jail.

Ooh, yes, I made that up on the spot just like you did with yours. Doesn't mean that I am wrong though.

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Re: Hmm, should this have ever gone to court?

"The act clearly states that intent is needed and since this was tried in a Crown Court the prosecution must have presented enough evidence to convince 12 members of a jury that this intent existed. Those 12 jury members would be familiar with the perils of sending texts to the wrong person but despite this still found the evidence convincing enough to return a guilty verdict based on **ALL** the evidence, not just the defences."

All I think this tells you is something about the state of the society we live in and the pliability and general intelligence of your average juror.

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Anonymous Coward

Poor devil

I don't know whether I should laugh or cry.

Be careful people, one wrong press of a send button can (almost) land you in jail, don't say we didn't warn you... or maybe, just maybe the courts are COMPLETELY INSANE. This should never have made it past the Birmingham Court if the people working there would have two brain cells to rub together.

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Anonymous Coward

Re: Poor devil

What makes this decision to prosecute and the resulting sentence especially disgusting is that it comes just as Rochdale Council have published a report condemning the police for failing to help underage girls who'd been 'groomed' and then raped multiple times by a gang of men.

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Rochdale council

The social workers and police who thought that 13,14 year old girls were consenting prostitutes are clearly also somewhat suspect. Personally I would have all their computers and houses searched with a fine tooth comb and find the evidence to lock them up. The social workers and police - and presumably their bosses who would have seen the reports - are as guilty as the men who were running the show. I suspect they were on the receiving end of back handers, hush money, pervy photos and probably 'free goes' as well. It seems we have 'law enforcement' run by a bunch of people who should themselves be locked up.

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Anonymous Coward

Re: Poor devil

Indeed, but they must meet their quotas !

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Anonymous Coward

Re: Poor devil

Be polite, even to your other half?

Never text "rude" words just in case.

You never know if someone under age will pick up a phone = all texts are a risk of falling to this law/error.

So, ask for "fun time", and you'll never get arrested for a text sent to a mistaken recipient?

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Anonymous Coward

Re: Poor devil

I think you have just confirmed the stereotypical view many people hold of Brummies.

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It's unfortunate what happened to this guy but it clearly isn't wise to have the phone number of underage girls on your personal phone. Get a business phone FFS.

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Anonymous Coward

Meanwhile, in the real world...

Yeah, a business phone might have been a good idea, but people do have the numbers of young girls on their phone. He might have daughters, nieces, and it is not unreasonable to imagine legitimate reason to have the numbers of their friends, should he be acting in loco parentis at any time.

FFS, there are no more cases of child abuse in the UK than any other country, but only our nation sees fit to keep children indoors under supervision all the time. When I was young etc etc climbing trees, making rope swings, out at breakfast back for tea, a broken arm never hurt anybody etc etc... People have turned an imaginary fear into a real risk of heart disease, obesity and lost social and physical skills.

The scary thing is that I'm only 30, and this unhealthy mindset has only come about in the last ten to twenty years. Driving past my old primary school the other day, I saw there are far more cars parked outside than when I attended, and I never see young 'uns walking to there unattended as I once did.

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Re: Meanwhile, in the real world...

"People have turned an imaginary fear into a real risk of heart disease, obesity and lost social and physical skills."

More like they've turned it into a well paid industry.

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Facepalm

Oh shut up!

I have the numbers of people aged from 10 ( my daughter ) to 73 ( my father ). Does that make me some sort of weirdo?

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Anonymous Coward

Down votes?

Why all the down votes on that post?

I reckon very many of us on here run private and business phones. I've made the decision not to BYOD *specifically* so I'm not tempted to text my boss from the pub and point out his deficiencies!

Keep business and pleasure apart - nothing good ever comes from mixing them!

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Anonymous Coward

Re: Down votes?

A huge amount of coaches in all sports in this country are not full time professionals but do it on part time or volunteer basis. Even when they are, not are often not tech literate people, but your average person doing something they believe in for the good of others.

So to ask someone to pay another stack of cash, when they are already giving up their time is just taking the piss.

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Re: Oh shut up!

Yup, at least according to the last government, this government (who haven't undone the damage), the social workers, police and judges.

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WTF?

Re: isn't wise to have the phone number of underage girls

Why?

It isn't against the English law to have friends of any age. Yet.

It's all in the UK national mind. It thinks that any person who talks to a child must be a pervert and anyone who carried a camera must be a terrorist. What a sick country.

(British, but not living there)

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Anonymous Coward

Re: Meanwhile, in the real world...

+1 to this. I have a teenage daughter. I regularly run her and her friends round to the cinema, to the shops, out to have a pizza etc. and then need to pick them up, bring them here, run them home etc. The rules of being a dad state that at no time do I have someone else's daugher in my car unless my daughter is also present, unless I have been asked to do so by the parent. However, I may need to take a phone call from one of the friends to say "we are ready to be picked up" if my daughter has forgotten her phone, forgotten to charge it, etc. For that reason I may have their number in my phone.

The solution is, of course, not to send dodgy texts.

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WTF?

Re: Meanwhile, in the real world...

@ac 1938

Actually the solution is not to attempt to remove the human and compassionate aspects of the law in a knee jerk reaction to daily fail pedo hysteria.

Cases like this are exactly why judges should be permitted to use their judgement. A very poorly written law.

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Re: Meanwhile, in the real world...

...The rules of being a dad state that at no time do I have someone else's daugher in my car unless my daughter is also present...

That is just craziness, you are stating that you yourself are a pedalo or can't be trusted. I personally can be trusted not to have sex with your ugly child or indeed rabidly molest youths in the street. It's no big deal for me not to do that.

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Re: Meanwhile, in the real world...

"That is just craziness, you are stating that you yourself are a pedalo or can't be trusted. I personally can be trusted not to have sex with your ugly child or indeed rabidly molest youths in the street. It's no big deal for me not to do that"

It's not that the poster can't be trusted, but such a fuss has been made of this whole "every man is a potential paedo" thing that other people's dirty minds will add 1+1 and make 23 from it - "if he has an underage child in his car that isn't his own offspring, he must have illicit intent". OK in the long run he could prove there was no intent to do anything except give his daughter's mate a lift, but in the interim the poor guy will be ostracised, probably suspended from his job, and be haunted by the no-smoke-without-fire brigade for the rest of his life.

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Anonymous Coward

Re: Meanwhile, in the real world...

I live in a small town in Somerset and I can assure you that here children still do all those things and nobody in their right minds thinks twice about it. Yes we have the ridiculous parents who drive their kids 100 yards to school in their 4x4s and park in the middle of the road to offload them - but they are a minority and mostly appear to be rich chavs if you hear them talking.

Child abuse seems far more likely to happen indoors than out.

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Anonymous Coward

Re: Meanwhile, in the real world...

What do you expect when it was written by the Daily Mail rather than by Parliament?

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Anonymous Coward

Re: Meanwhile, in the real world...

"It's not that the poster can't be trusted, but such a fuss has been made of this whole "every man is a potential paedo" thing that other people's dirty minds will add 1+1 and make 23 from it"

This is the crux of the problem and rather than pander to the madness, everyone should be standing up to it.

Every time we give in, we bolster the idea that only kiddie fiddlers want to be around children and that maybe there is a good reason to be suspicious of a guy who drives someone else's kid around.

It is a shame that the fear momentum pretty much ensures people will get more paranoid about their behaviour.

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Pint

I have to agree with this sentiment, having been a former swim coach, admittedly to adults only, but I still had a cheap PAYG phone I used to contact any club members. Likewise I now have a work mobile as well as a personal. The work one has no personal contacts on it and vice versa. That way its extremely difficult to send a text that could land you in trouble to the wrong person

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Re: Meanwhile, in the real world...

No it's the idea of self protection. Again as a former swim coach one of the things we learnt on our various courses was that ALWAYS have a chaperone when dealing with minors or even adults of the opposite sex. That way you always have a witness should someone decide to make malicious allegations.

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Re: Meanwhile, in the real world...

Not good enough according to the Labour government - voted for by Conservatives and Liberals and not repealed.

I did sports coaching. I wasn't allowed to give my sons friends lifts to and from the matches or training sessions more than once or at most twice (why it was ok once or twice is beyond comprehension) EVEN if my son was also in the car! This would have applied equally to his mother giving lifts. As a sports coach the club had to have a CRB check on me (separate of course to the one done for my work as a governor). The club also needed a 'child protection officer'. As it was a large club this was all possible, when I moved to a smaller club we didn't do kids/youth sport because of the hassle - despite having 2 school sports teachers, several more qualified teachers and of course a number of people qualified as coaches.

The problem is that the politicians have lost sight of real life. They believe firmly that we all are the types of pervert that go around caning fags bottoms in public school and doing God knows what else to them behind the bike sheds before finally getting caught by the KGB and selling off all the state secrets to avoid being revealed. It is a pity that the public don't elect 'normal' people instead of the public school perverts that are in power.

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@James47

He was a swimming coach, FFS. His personal phone is his business phone. I'm not going to bother you with details, but he needs phone numbers. My own club needs a new coach, and nothing I've read about this case would stop me interviewing this guy, apart from the obvious fact that we need the CRB box ticked.

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Re: Meanwhile, in the real world...

One thing I have noted on here a couple of times. I think a 'normal' person would consider it so unlikely that this was deliberate as to require a huge amount of evidence and convincing. A person who thinks that child molestation is normal and widespread probably has a lot of contact, and maybe a lot in common with, people that do molest children, these people probably think it is highly likely. Thus my attitude would be to investigate the people who bring the charges, convict and sentence.

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Re: Meanwhile, in the real world...

@Chris Collins

I'm sure you can. However, if some third party disagrees and reports you, your life is on hold until a court says otherwise. In that environment does it hurt most to be over cautious or not sufficiently cautious?

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