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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  1. JeeBee
    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.

    1. Anonymous Coward 101
      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.

      1. dogged
        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.

    2. Anonymous Coward
      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.

    3. Richard Gadsden

      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.

      1. Christoph Silver badge

        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.

      2. Anonymous Coward
        Anonymous Coward

        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.

    4. Arctic fox
      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.

      1. Dave 15

        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.

      2. Archibald Trumpetbeetle

        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

    5. ravenviz
      Trollface

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

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

      1. The Axe
        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.

        1. Alan W. Rateliff, II
          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.

    6. Anonymous Coward
      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.

      1. Graham Dawson

        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.

        1. Anonymous Coward
          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.

      2. FutureShock999
        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.

      3. This post has been deleted by its author

      4. Schultz
        Thumb Down

        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.

    7. Law
      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!!

    8. Anonymous Coward
      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.

      1. Mark 65

        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.

    9. A J Stiles

      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.

  2. Anonymous Coward
    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.

    1. Anonymous Coward
      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.

      1. Dave 15

        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.

    2. Anonymous Coward
      Anonymous Coward

      Re: Poor devil

      Indeed, but they must meet their quotas !

    3. Anonymous Coward
      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?

    4. Anonymous Coward
      Anonymous Coward

      Re: Poor devil

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

  3. James 47

    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.

    1. Anonymous Coward
      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.

      1. Stratman

        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.

      2. Anonymous Coward
        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.

        1. Gordon 10 Silver badge
          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.

          1. Anonymous Coward
            Anonymous Coward

            Re: Meanwhile, in the real world...

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

        2. Chris Collins

          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.

          1. Corinne

            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.

            1. Anonymous Coward
              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.

              1. Dave 15

                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.

          2. Andrew Peake

            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.

          3. Sirius Lee

            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?

        3. Dave 15

          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.

          1. David Cantrell
            FAIL

            Re: Meanwhile, in the real world...

            I wanted to become a cricket umpire, but to even sign up for training you need to be CRB checked. That's something I refuse to do because I don't want busy-bodies prying into my life and I refuse to co-operate with stupidity. So I'm not a cricket umpire, and English cricket suffers from a desperate shortage of qualified umpires.

            Why is the CRB check even needed? It's not as if umpires, standing out in the middle of a large flat field where everyone can see them, are going to indulge their wicked fantasies in a bit of kiddy-fiddling.

          2. kissingthecarpet

            Re: Meanwhile, in the real world...

            A friend of mine went to a well-known public school. Rape was not uncommon, forced cocksucking a commonplace, & weird sadistic behaviour abounded. Going to school there definitely screwed him up, he told me. Now this was quite a few years ago, but certainly when most politicians & journos were at these schools as well. Totally unheard of at my very good comp school, a genuine "public" school.

        4. Anonymous Coward
          Anonymous Coward

          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,

          Really? What rules? It's that bad there in UK now?

          Of course, if you have teenage children, you are going to know other teenagers. And you can't just give one a life somewhere? Or engage in some sort of innocently non-sexual friendship?

          Shit...

          1. Anonymous Coward
            Anonymous Coward

            Re: Meanwhile, in the real world...

            No, you cannot.

            If you were accused of something, and no one else was around, how do you defend yourself?

            1. Anonymous Coward
              Anonymous Coward

              Re: If you were accused of something

              So life has to be lived as if someone would accuse you. I'm not sure that's really life.

              Very sad.

      3. Anonymous Coward
        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.

    2. Amorous Cowherder
      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?

      1. Dave 15

        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.

    3. Anonymous Coward
      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!

      1. Anonymous Coward
        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.

    4. Anonymous Coward
      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)

    5. Andrew Peake
      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

    6. Displacement Activity

      @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.

    7. DreadFox
      FAIL

      "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."

      What, and then text sex messages to your girlfriend from the business phone? Wouldn't that be better done from your personal phone? Which would contain the phone numbers of underage girls? Which would do absolutely nothing to help solve the original problem?

      Good thinking. Have you considered a career in Government?

  4. Anonymous Coward
    Anonymous Coward

    Just wow... this guy really got the book thrown at him for a mistake. And we literally cannot get rid of Abu Hamza, a man that clearly deserves several books thrown at him.

    1. PassiveSmoking

      And the first book they should throw at him is The God Delusion by Richard Dawkins.

      1. Anonymous Coward
        Anonymous Coward

        "And the first book they should throw at him is The God Delusion by Richard Dawkins."

        They should probably have started with the user manual for his phone.

    2. Dave 15

      Should have been on a plane with no radio for recall the nano second the court said no to his appeal. To say it would take weeks to extradite him was the problem. Frankly I'd just give him a dose of something and kill him off today.

      But then of course he's not a normal person - normal people get locked up for not paying extortionate and unaffordable council tax bills or for having the stupidity to take a photo in the wrong place. Never mind such outrageous acts as sending a message to more people than intended

    3. Thorne

      "Just wow... this guy really got the book thrown at him for a mistake. And we literally cannot get rid of Abu Hamza, a man that clearly deserves several books thrown at him."

      Several books wrapped in a safe

  5. PassiveSmoking
    FAIL

    Oh come on

    This is so obviously a stupid mistake on his part that this should never have even gone to court in the first place. why the hell has his conviction not been overturned?

    1. Anonymous Coward
      Anonymous Coward

      @PassiveSMoking

      >why the hell has his conviction not been overturned

      Because the police and cps do not make mistakes, he must be guilty of something. Anybody who thinks otherwise will be locked up.

    2. The Axe
      Thumb Down

      Why conviction not overturned?

      The conviction can't be overturned. It's a strict liability offense. So no matter why you did it, you always get a conviction. The only thing a judge can do is make the sentence suspended and minimal.

  6. corestore

    This is...

    Possibly the most egregiously stupid, disproportionate conviction and sentence I have ever heard of.

    This wasn't criminal justice, it was legalised hostage-taking.

    1. MYOFB

      Re: This is...

      I can go a lot better (worse) than this. Picture the scene, burglar gets rumbled by plod on the beat and a chase ensues. Blagger, in his attempt to escape, bursts into a house whose occupant is nursing an ill BABY. The blagger is waving a crowbar around, screaming and shouting, plod bursts in and tackles the scum. Unfortunately, the scumbag starts to get the better of plod and in due course he shouts to the father nursing the ill BABY for help. Obviously, the father is in no position to profer such help, being in the circumstance of nursing an ill BABY and the burglar eventually overpowered plod sufficiently to make his escape.

      End of story? Not by any stretch . . .

      The father of the ill BABY was charged, prosecuted and convicted for failure to help an officer of the law in discharging his duties. IIRC he got 2 years in the slammer and spent 12 months in there before his sentence was reduced to 1 year but the "crime" was not overturned.

      It was the biggest WTF!! moment of my life at the time but it left me with the overall impression that still exists today that the law is one big saggy fat ass!!

  7. Anonymous Coward
    Anonymous Coward

    Quite disgusting really, why did the CPS even run with this? This poor sod now has a criminal record probably will lose his job could well be on the sex offenders registers, as two of the people were minors. And the judges on appeal still didn’t overturn the conviction just reduced the sentence, well hey thanks a lot!

    The legal system in this country really is a total embarrassment at times. Those involved with this case need to be ashamed very ashamed.

  8. bolccg
    WTF?

    Wait but

    If I'm reading this correctly, he was still found guilty, it's just that his sentence was commuted so he doesn't have to go to jail? I mean, wtf? Presumably he's now on a sex offenders' register and has a criminal record and such like? If so, this is at best a partial victory.

  9. Steve Knox
    Trollface

    So..

    Ignorance IS an excuse, then?

  10. Matt Bradley

    A shame, shameful prosecution

    I don't know how CPS can possibly have concluded that prosecuting this case was in the public interest.

    I don't know all that much about this case, but I'd suspect the reason the man was convicted is because this is probably tried as a "strict liability" offence, in that his intent is not a factor in his conviction. This is an indicator of why pandering to the kneejerk Daily Mail style sex offender obsession has led to some truly awful, awful legislation.

    More worryingly, although it isn't mentioned in any of the reports I've seen, the accused has probably ended up on the sex offender's register, which is an effective life sentence.

    The likelihood is that this poor man will be unable to successfully appeal his conviction because in this case, the law is indeed an ass. This CPS decision to prosecute arguably needs to be subject to judicial review.

    Appalling abuse by the CPS here. Keir Starmer really needs to sort out his office.

    1. John Sager

      Re: A shame, shameful prosecution

      As was pointed out, this is a strict liability offence. There was little doubt he sent the text, so he's guilty, whatever his intent. I dunno if the CPS even have discretion in prosecuting strict liability offences. Sadly, the solution to this is only in the hands of our MPs in repealing the legislation, so don't hold your breath:(((

    2. Anonymous Coward
      Anonymous Coward

      Re: A shame, shameful prosecution

      I've known a guy on the sex offenders list.

      He told me he got on it for something even stupider he got drunk by one of his friends houses, and decided to walk home sometime around 2am. On the way home he said he needed to use the bathroom, saw a car parked and decided to use it for cover, and didn't notice a undercover cop in it who wrote him a citation. He found out later they threw him on the sex offenders list for exposing himself in public when his employment (a child daycare) terminated him. He's been trying to get off it since, but can no longer afford the legal proceedings as he's not been able to find decent work due to it.

      1. Anonymous Coward
        Anonymous Coward

        Re: A shame, shameful prosecution @AC 14:58

        That is an odd one, I would be interested in how they got him on the sex offenders list without a trial?

        Also being naked in public is a sexual offence in itself.. If he had flashed himself with the purpose of offending, then maybe...

        Poor bloke!

        1. Justicesays
          Unhappy

          Re: A shame, shameful prosecution

          Simple,

          They bring you into the station and say

          "How about we just issue you with a caution and you don't do it again? Save the trouble of taking it to court etc."

          And of course they just fail to mention that a caution is the same as a conviction in the eyes of the law, and if it is for a sexual offence (like "public exposure"), you can go on the sex offenders register.

          And because you wont have a lawyer with you when they offer it, you wont know that and think "Cool, just a warning then", not "Like I'm going to admit guilt and go on the sex offenders register for something like that!"

          Get their stats up nicely though

    3. Anonymous Coward
      Anonymous Coward

      Re: A shame, shameful prosecution

      Think about it. If you re a capable lawyer, are you going to go into private practice where you can expect to become a partner or a QC, or work for the cps?

      Case closed.

  11. 4.1.3_U1

    Get out clause for paedophiles

    I'm sorry officer, I sent this lewd message to [all|everyone in this subset] of my contacts. Just include enough over 18s in the list (1% - 99% over 18 dependent on the interpretation of the judge).

    Maybe there's an app for that (sext 0.9 +18 "message" could be in the api).

    1. Matt Bradley

      Re: Get out clause for paedophiles

      Precisely the kind of knee Dail Fail reader idiocy that I was referring to in my comment above. Thanks for illustrating rather eloquently why such draconian legislation has come into existence.

    2. Chris007
      Mushroom

      Re: Get out clause for paedophiles @4.1.3_U1

      You're a fuckwit.

      That is all.

  12. Thomas Whipp

    CRB / List99

    I've no idea if it will apply to this guy, but a CRB check is just that "a check". As I understand it, the employer then has to determine if any positive disclosure is reason to deny reject the candidate. Its cases like this combined with freedom of information however that then end up with the occassional headlines about "X number of convicted sex offenders working in XXX".

    Teachers are subject to list99 which isn't quite the same:

    http://www.education.gov.uk/aboutdfe/foi/disclosuresaboutchildrenyoungpeoplefamilies/a00274/how-many-individuals-on-the-sex-offenders-register-are-exempt-from-list-99

    1. Anonymous Coward
      Anonymous Coward

      Re: CRB / List99

      No, as he would work with kids, he will be liable to Enhanced CRB's

      "Enhanced CRB checks apply to roles involving a much greater degree of contact with children or vulnerable adults (compared to the Standard CRB check) especially where an employee would supervise, train, take care of, or be solely in charge of children or vulnerable adults. For example: medical professionals, teachers, and personal carers....

      These lists contain the same information as the former POCA and POVA lists - one list contains all those who are barred from working with children and the other all those barred from working with vulnerable adults."

      So he's knackered.

  13. Velv Silver badge
    WTF?

    So where does this end?

    What happens with things like Facebook, twitter, blogs?

    Does that mean REALLY mean you need to sanitise every posting you make in case someone under 16 reads it? You may have set up your security, but Facebook change their security that often that can you really be sure it will not be read in the future by someone under 16?

    What about using a phone in a public place? Does that mean there are words you cannot use in case someone under 16 hears them?

    What about "suck, squeeze, bang, blow"? My physics teacher taught that to the class when we were 12 (and for those who don't know, it is the four phases of a four stroke combustion engine (induction, compression,ignition, exhaust)).

    Really, what is the world coming to? (and can I use the word coming?)

  14. tony72
    Paris Hilton

    I don't want to make light ....

    ... but I can't help wondering; did he get any positive replies from anyone?

  15. Andy Miller

    Dilbert

    Scott Adams predicted this on May 24, 1995

    1. This post has been deleted by its author

    2. Anonymous Coward
      Anonymous Coward

      Re: Dilbert

      And your point is what? Scott Adams is some kind of prophet? Or, paraphrasing Basil Fawlty, a master of the bleeding obvious? Anybody with half a brain cell predicted this before the legislation passed into law.

      1. Andy Miller

        Re: Dilbert

        I make no point.

        The strip was about the danger of sending inappropriate messages to a group code rather than the legislation. I thought it was funny at the time.

        Sorry if my comment offended you.

  16. JaitcH
    WTF?

    British judges as narrow minded and stupid as Ameican judges

    They jail a guy for jokingly saying they should blow up some crap airport operation (why not Heathrow?).

    Then another judge locks this poor sucker up for 19-months.

    Likely the girls know enough about sex to make D.H. :Lawrence (Lady Chatterly's Lover) blush. Obviouslt the judge doesn't have a teenaged daughter.

    1. Risky
      Stop

      Re: British judges as narrow minded and stupid as Ameican judges

      Looks like your attitude to 13yo girls would fit in well in Rochdale

      1. Anonymous Coward
        Anonymous Coward

        Re: British judges as narrow minded and stupid as Ameican judges

        Risky, you are a moron. As a father of a teenage daughter, believe me they know about these things. A responsible parent makes sure they are aware of what might be said etc. to ensure their safety, but I suspect they learn earlier than that anyway, from school sex ed. and older friends. To suggest that knowing that teenage girls are often worldy wise makes someone a paedophile is the statement of a complete idiot.

  17. Dave 15

    Guy was a bit daft BUT

    He clearly wasn't inciting anything from anyone. The person(s) who bought the first case should be the ones locked up for clearly being clueless, the judge from the first case should also be locked up for the same offence. All of the above should be investigated for pedophilia tendencies as they clearly think such a mistake was deliberately aimed at kids, and then the appeal judges who clearly are not sensible (still don't realise it was a simple mistake) should be investigated because they must (from leaving a sentence at all) believe it was deliberate and by making the sentence smaller and suspended think it is ok...

    What a mess

    1. Invidious Aardvark
      Stop

      Re: Guy was a bit daft BUT

      Except, as previous posters have said, this offence is strict liability. You can rant all you like against the judges and CPS (though accusing them of being paedophiles or having such tendencies makes you sound like a Daily Mail reader) but their hands are tied.

      In fact your rant missed the people responsible: the politicians. The only way to stop this kind of stupidity is to get these kinds of strict-liability laws repealed and replaced with ones that allow the judiciary more discretion.

      1. LPF
        Thumb Up

        Re: Guy was a bit daft BUT

        No their hands are not tied, they have the get out of "not in the public interest to prosecute this case" so why don't you do everyone a favour and shut up on something you know nothing about!

  18. Anonymous Coward
    Anonymous Coward

    So... hypothetical scenario with all these "strict liability" offences.

    Bill and Brenda have been dating for a year, Brenda has a 12 year old daughter.

    Bill & Brenda split up, 2 weeks later Brenda gives her phone to her daughter - including SIM*.

    Bill texts Brenda asking her over for an evenings "fun"...

    Bill goes to jail?

    * I realise we're all saying "you wouldn't do that" - but it could happen.

    1. 4ecks

      Hypotheticals

      "Send All" is great for "Happy New Year" messages, but as this case shows, dangerous beyond belief.

      Other hypotheticals - you leave your phone unlocked & unattended or it gets stolen - somebody else sends a compromising text or picture from your phone to everyone in your contacts list - you end up in gaol and on the SOR.

      Was the message sent from your phone? - undeniably yes(*).

      Was the message sent by you, the accused? - prove it beyond a "reasonable doubt", but I don't think "It wasn't me!" will go down well with the Judge and Jury.

      (*)_ and don't even think of accepting the plea offer from the CPS to make it easy, 'cos they might offer you a "slap on the wrist", but you'll get the maximum instead!

  19. Steve Evans

    Lucky

    He's lucky they didn't put him on the sex offenders register too!

    Common sense seems to be seriously lacking in many places these days, although I can't aim the blame totally at the judge, I think most of it should be fired in the direction of his defence lawyer who didn't mention to fact he spammed his entire contact list in the first place.

    1. dogged
      Alert

      Re: Lucky

      He's lucky they didn't put him on the sex offenders register too!

      They did. He is anything but lucky. Poor bastard.

      1. kwhitefoot

        Re: Lucky

        Did they? Can someone provide some backing for the belief that he is on the register? DM doesn't mention it, nor the Sun or the Telegraph.

  20. Anonymous Coward
    Anonymous Coward

    FFS.

    I think we should retire all judges* and recruit some new ones, preferably under 20 as that age group seems to have more sense these days.

    Add politicians, police, army hq, council staff PO1 and over, oh and any media types too for not reporting all the sh1te.

  21. yossarianuk
    Thumb Down

    Why the suprise?

    After all we live in a country where people can face up to 14 yrs jailtime for growing a herb....

    1. Magnus_Pym

      Re: Why the suprise?

      Can you?. Bugger me. I'd better go and dig up that patch of parsley in the... ..oohh I see you meant... ... oh you joker.

  22. McGaz

    The judge should be sacked. It is a major punishment that he has received for a clear accident.

    I would appeal again in the European courts to get it completely removed!

  23. Anonymous Coward
    Anonymous Coward

    If you own a Blackberry...

    ...maybe you deserve to be jailed for your stupidity?

  24. Stevie Silver badge

    Bah!

    The legislation describing the offense is the problem. Hey, Britons, it's your law. If you don't like it (and who would) why not work to have it removed from the legal code? That is what your MPs are for, though they often forget so you need to tell them, and tell them often and in force. And if they don't take notice of you, work to get them out, if not by Friday, by the next election. The next bugger to take office will listen to you.

    1. A J Stiles
      FAIL

      Re: Bah!

      Because if you attempt to complain about overly-broad or draconian legislation, you will be shouted down as being on the side of the paedophiles / terrorists / drug dealers.

  25. NukEvil
    Mushroom

    Hmm...

    I can just imagine what went on inside everyone's head at the first hearing:

    "Space... The final frontier...

    These are the voyages of the Starship Braincell01.

    Its continuing mission:

    To locate strange new braincells...

    To seek out new chemicals; and new connections...

    To timidly go where pretty much everyone else has already been before!"

    And at the second hearing:

    COS: "Sir, our main dendrite has missed Braincell02's tertiary dendrite by approximately five kilometers!"

    CAP: *sighs* "When will we be able to perform another close pass?"

    HEL: "Sir, on this trajectory, our next close pass with Braincell02 will take place in 1 year and about 6 months".

    CAP: "I hope the judge doesn't mind the wait."

  26. This post has been deleted by its author

  27. jke
    Paris Hilton

    Jury Nullification

    This is the type of case where "Jury Nullification" is so valuable. Since a jury is the only source of guilty or not guilty verdicts, it is always open to them to decide that a prosecution is downright silly as it clearly is in this case and bring a finding of not guilty. This in the face of the fact that a salacious message was clearly sent to two underage girls and the defendant's mum.

    Jury nullification is not widely advertised by our almost infallible police and our entirely infallible CPS, but it does exist. As we get more and more mired in incomprehensible regulations jury nullification could become a valuable weapon in the hands of common people like Reg readers.

    Paris because she hasn't had much exposure lately and is a lot smarter than the CPS droid who brought this prosecution.

    1. kwhitefoot
      Unhappy

      Re: Jury Nullification

      Since the rule against double jeopardy has been abolished I'm not sure jury nullification as powerful as it was in the 19th century when juries started to refuse to convict when the punishments for trivial offences was transportation or hanging.

      Now the CPS could try again, under some circumstances at least.

      And I wonder if a jury refusing to convict when the evidence was admitted in a strict liability case might not arguable be grounds for declaring a mistrial an starting again.

      I'm not a lawyer, just thinking out loud. I'm also not resident in the UK either.

      Also there have been mutterings about getting rid of juries both in the UK and Norway.

      We need a head in the hands despair icon.

  28. Anonymous Coward
    Anonymous Coward

    Where's his girlfriend?

    Well, if he meant to only text his girlfriend the obvious thing would be to ask her if he meant to text her. However, she's never come forward, never heard of or seen by anyone else. I suppose this missing girlfriend made the cops suspicious, who did he mean to text.

  29. Qu Dawei
    Headmaster

    The appeal is also not completely correct

    If you read the appeal judgment, he has not escaped any punishment, but has merely had it reduced. In my view, this is also unsatisfactory: he should have been completely acquitted, because there was no intent involved in what he did. Suppose someone painted on a large roadside billboard "I want to fuck you!" If that person was found, would he be up in fron of a judge accused of attempting a sex-act with any under-age child who happened to see the graffiti? Of course not, it would be a nonsense. The same principle applies here, except that he was not guilty of either breach of the peace or of damaging other people's property with the graffiti.

    1. Anonymous Coward
      Anonymous Coward

      Re: The appeal is also not completely correct

      Intent is only of interest for sentencing, not in determining if a crime has been commited. If you crash into another car while distracted driving, you had no intent to cause an accident or injury, but you did none the less. The judge may take into consideration that your act wasn't malicious and that it was due to negligence, which means you exercised poor judgment while driving as did the person who sent the message to everyone in his address book. Negligence however is a good reason to increase the punishment IMO, not lower it because the indiviual failed to exercise good judgment.

  30. Seven_Spades

    Tis may be a strict liability offence but I think he should appeal to the House of Lords as I would argue that I did not send the text to young girls, I would argue that that the phone did that. I think there is every chance that the House of Lords would be receptive to this argument. He sent the text to is girlfriend but it happened to go to a whole lot of other people as well.

    1. Dodgy Geezer Silver badge
      Flame

      Unfortunately...

      "...T(h)is may be a strict liability offence but I think he should appeal to the House of Lords as I would argue that I did not send the text to young girls, I would argue that that the phone did that...."

      ...there is already extensive case law showing that pedophile issues MUST be interpreted to the detriment of the defendant at every opportunity. For instance, the act of viewing an image on a computer is claimed to include 'creating and storing' it because of the action of video buffers, and talking to another person about pedophile desires is counted as 'publishing' obscene material.

      In these and many other instances the overt design aim of the law is to ensure conviction under all circumstances, whenever a person is accused under it. This, and the other laws dealing with 'sexual' crimes which have recently been placed on the statute book, are all designed in this way. The judges were both correct in their interpretation of the law - they are now required to state that black is white if they need to do so in order to ensure a successful conviction. No judge could allow the 'get-out' argument that you have proposed to stand as a precedent.

      I do not think that is is widely realised just how broken modern British law is, starting with the agreement to allow double jeopardy. The problem is that you cannot have a proper academic discussion of the rights of people accused of child molestation, terrorism or many other crimes - you are shouted down by the press and politicians. So if you wish to argue against this modern trend you have two options: to shut up and be ignored, or to speak out and be ignored and vilified....

    2. Anonymous Coward
      Facepalm

      @Seven_Spades

      Unfortunately, the House of Lords no longer hears appeals.

      This function now falls to the Supreme Court of the United Kingdom (which hears appeals for civil cases for all four countries, and appeals for criminal cases in all countries but Scotland).

      Unfortunately I doubt that the Supreme Court would dismiss the charges either, purely based on precedent and the actual law.

  31. Alfred 2

    Time for a change in the law

    It seems that the govenment nneds to ahve the courage of its convictions.

    Stage 1

    Build more and more and more prisons.

    Stage 2

    Round up all the adult males in the country, not employed as cops of course. (They need to enforce injustice.)

    Stage 3

    Incarcerate the said males and release them only when they can prove thay are NOT perv, pedos etc.

    Maybe that will be the next step.

  32. Magnus_Pym
    FAIL

    Another victory for zero tolerance.

    See Title.

  33. Richard Jukes

    1984 called

    And they want their laws back.

  34. Red Eyes
    WTF?

    Birmingham Jury

    I am amazed a Birmingham Jury found someone guilty.

  35. Anonymous Coward
    Anonymous Coward

    This sounds very odd to me, the offence was "inciting minors to engage in sexual activity" right?

    so an accidental text message constitutes incitement?

    This is where a judge should have thrown it out of court and find the CPS/Police for wasting court time!

    Yes we need laws to help stop abuse, but IMHO a 14 year old girl being tricked/forced into sexual activity is no different to a 30 year old girl being tricked/forced into it... Both things need to be stopped, but a dirty text message does not constitute incitement, if we take away young adults ability to flirt they will never learn!

  36. Anonymous Coward
    Anonymous Coward

    Plus, you know some on his address list might have been pensioners, or male.

    Or Sharron Davies ;)

    What kind of replies could he have got from them then? :P

  37. Anonymous Coward
    Anonymous Coward

    Arse

    Please don't read this if you are a minor.

  38. Purlieu

    Tough

    You got the world you created. So don't fucking start crying about it now. Photo-hysteria, pedo-hysteria, anything-else-hysteria. Good luck.

  39. This post has been deleted by its author

  40. Malcolm Boura

    Big society

    I have almost completely stopped my voluntary work for youth organisations. The stress caused by the fear of allegations, and the frustration from not being able to do what is right, is too much. Kid walking home in torrential rain withou a coat on a dark night from the school I taught at. Give them a lift? You must be joking!

    Child beside a country road bawling their eyes out? If it looks serious, 999, and ask if they are going to see to it or should I? If it doesn't look that serious then ignore it. That is probably an over- reaction but I would certainly think very, very carefully before offering assistance. If a parent turns up they are likely to blame you, they call the police, and you end up with a load of grief. That sort of thing does happen.

    It is terrifying what knee jerk reactions to a comparatively small number of bad cases have done to society. Dave Cameron's Big Society is a very bad joke.

    1. YetAnotherLocksmith
      Holmes

      Re: Big society

      How can you blame the last 2 years of tory for 15 years of labour?

      The Conservatives have recently passed some useful changes to reduce how often CRBs are demanded for things like giving lifts, but (probably because they are stupid) didn't really advertise it, probably for fear of being shouted down as 'soft on crime'. Hmmm, perhaps not so stupid...

      My dad just got out of jury duty. You can too. When you get the paperwork, phone them up and say 'Brilliant! I've been reading up on jury nullification and my other responsibilities as a juror.'

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