There is STILL a #FlawInTheLawDecember 8, 2016
As technology continues to develop and children face ever more risk of grooming by online paedophiles, our laws must keep pace with technology or we risk being unable to protect our children from sexual abuse. Yet the government at this very moment delays a vital piece of legislation that will help police forces protect our children, even though parliament agreed to the change in law more than 18 months ago.
Grooming – the flaw in the law
You would be forgiven for thinking that it is already an offence to send a message with sexual contents to a child, but you would be wrong. There is often no law the police can use to prosecute an adult sending sexual messages to a child. The offence of “grooming” applies only if the adult actually meets up with the child in person (or if it can be proved beyond reasonable doubt that the adult intended to meet up with the child – but that can be very difficult to show).
Given the prevalence of online grooming of children, this is a disastrous oversight. Children can be groomed by strangers or people they know and most will not understand that they are being groomed. Grooming can result in children being persuaded or forced to create explicit images of themselves, to take part in sexual activities which are often filmed on webcams or phones, to have sexual conversations online or in text messages and sometimes to meet up in person with paedophiles.
This is a growing problem. Alan Wardle of the NSPCC states that:
- Calls to the NSPCC’s ChildLine service from children who had been affected by online grooming rose by 10% in 2015
- There was a one third increase in recorded cases of child sexual abuse in the UK in 2015 compared to 2014, with a total of 45,456 child sexual offences recorded
- There has been an 88% increase in recorded child sexual abuse since 2012
Grooming and online sexual exploitation can cause immense psychiatric harm and the images or videos that were created may be shared long after the grooming and abuse has stopped. This can cause catastrophic emotional distress and, in some tragic cases, even lead to suicide or complete psychiatric breakdown.
If abusers could be caught in the early stages of grooming, then the abuse they are carrying out can be prevented from escalating and the harm they cause to children can be greatly limited. It should be obvious that our police forces should be given all the tools they need to tackle online grooming at an early stage. Yet today our police are lacking the most vital tool of all: the law.
The laws of England and Wales are struggling to keep up to date with the reality of online grooming. Changes in technology and communications have given potential offenders new ways of contacting children to encourage or prepare acts of abuse – many children have their own phones with accounts for Whatsapp, Twitter and Facebook which parents will find impossible to keep an eye on. Because the law has not moved as quickly as the technology, police are sometimes left powerless to take action when adults are caught in the early stages of grooming a child.
In October 2014, campaigners from the NPSCC seized upon this oversight in the law and launched their “Flaw in the Law” campaign. This campaign delivered the signatures of more than 50,000 to the government and called on them to make it illegal for an adult to send a sexual message to a child.
New offence: Sexual Communication with a Child
For once, the government listened and in December 2014 they announced that a new offence of sending a sexual communication to a child would be introduced. This offence was introduced by David Cameron’s government via the Serious Crime Bill which officially became an act of law on 3 March 2015, when the bill became the Serious Crime Act 2015.
The Serious Crime Act 2015 deals with a number of aspects of criminal law including the proceeds of crime, computer misuse, drugs and organised crime. It also includes significant updates to the offence of child cruelty as well as introducing a new offence that makes it illegal to possess “paedophile manuals” (which are documents that give advice or guidance about how to abuse children).
Section 67 of the act introduced a new offence named “Sexual Communication with a Child”. This criminalised an adult who communicates with a child for the purpose of obtaining sexual gratification, where the communication is sexual or if it is intended to elicit from the child a communication which is sexual. The offence carries a maximum sentence of 2 years imprisonment.
This was a fantastic victory for the NSPCC’s Flaw in the Law campaign who rightly hailed it as a “major step forward in preventing online child abuse”. The National Police Chiefs Council stated that they “welcome any legislation which helps them to protect children and prevent abuse taking place”.
So surely the story ends here, with a great victory for the protection of children? Sadly not.
Legislation set out within a bill does not always come into immediate effect. In many cases, such as the Serious Crime Act 2015, it is only after an appropriate government minister makes a “commencement order” that the law actually takes effect. In the meantime, the law cannot be enforced, even though it has been approved by parliament.
Section 67 faces this limbo today. Despite being approved by parliament, section 67 still cannot be used by the police to prevent online sexual abuse. This is because the government’s Ministry of Justice (MoJ) has still not given this part of the act the go-ahead – even though the law was approved by parliament over a year and a half ago!
What is the hold up? Why are the government delaying giving effect to a critical law in the fight against online child abuse and exploitation?
In a grand show of incompetence, when the MoJ was queried about this in March 2016, they first tried to refer the questions to another government department before accepting that it was they who were responsible. Even once the MoJ accepted responsibility, they still failed to give any reason why the law had not been enacted but simply stated that they would commence it “as soon as possible”.
Another eight months later, and I was shocked to hear from Peter Wanless, the CEO of the NSPCC, that the MoJ has still failed to enact the law and failed to give any explanation for its delay in doing so. This is entirely unacceptable. Our country and police forces are facing a crisis with dealing with online child abuse and yet the government is failing to act. They have not given any reason for doing so and it appears that no-one in the government is taking responsibility for this failing.
As the NSPCC put it: “Every day that this commencement order gathers dust on some government official’s desk, waiting to be enforced, is another day that children are at risk from an adult who wants to target them.”
This government document sets out the dates that each part of the Serious Crime Act 2015 took effect. Of all 89 sections of the act, there are only two sections which have no date set for their commencement: section 15 (relating to payment of victim surcharges) and section 67 – the section creating the offence of Sexual Communication with a Child.
Most other sections came into force many months ago. For example, the offence created in relation to the possession of paedophile manuals came into force on 3 May 2015 – more than a year ago!
The government must act immediately to remedy this; everyday they do not, their inaction allows paedophiles to groom children with impunity.
I am a Solicitor at Bolt Burdon Kemp specialising in Child Abuse claims. If you think you may have a claim, contact me free of charge and in confidence on 020 7288 4807 or at JosephCarr@boltburdonkemp.co.uk for specialist legal advice. Alternatively, you can complete this form and one of the solicitors in the Child Abuse team will contact you. You can find out more about the Child Abuse team.