Tricked into sex by fraud. Was the Sunday Mirror’s sting of Brooks Newmark criminal?

The weekend’s press was dominated by the Sunday Mirror’s scoop that Brooks Newmark MP, the Minister for Civil Society, had sent what the paper describes as “graphic” and “below the waist” selfies to an undercover reporter who was posing as a young female Conservative activist. Mr Newmark – no doubt mortified with embarrassment – has resigned from his very lowly government job and has presumably spent the weekend trying to explain himself to his wife and children.

Brookes Newmark MP: Tricked into sex
Brooks Newmark MP: Tricked into sex

 

Of course it is wrong that a married man should flirt, and more than flirt, with another woman: but it is not criminal. It is also, as a general rule, wrong to trick people – even married men – into exposing their genitals to complete strangers, and if there are occasions when it can be justified they are probably rather infrequent. And unlike adultery, tricking someone into sexual activity is potentially criminal.

So the story raises a number of difficult questions, far more of which are about the behaviour of the Sunday Mirror than about that of Mr Newmark.

What conceivable public interest was served by tricking Mr Newmark in this way?

Did his behaviour towards the reporter have any bearing on his ability to do his ministerial job, or his job as a Member of Parliament?

The newspaper used images, apparently taken off the internet, of at least one young woman, a 22 year old Finnish blogger and model called Malin Sahlen. Did Miss Sahlen consent to have her photographs used in this fraud? Was she paid? So far the Mirror has not said.

 

Malin Sahlen: did she agree that her iage could be used for a fraud?
Malin Sahlen: did she agree that her picture could be used for a fraud?

Even more fundamental is whether the Editor of the Sunday Mirror was encouraging its journalists to commit criminal offences. It is rather a dangerous game to play, as Andy Coulson, the imprisoned former editor of the News of the World recently learned.

 

Sunday Mirror Editor Embley: Did he encourage the sting?
Sunday Mirror Editor Embley: Did he encourage the sting?

The crime which springs to mind in this case is that of “causing a person to indulge in sexual activity without consent” contrary to S.4 of the Sexual Offences Act 2003. Should the Editor, Lloyd Embley, have known what was planned and offered any encouragement to the journalist then both he and the journalist would be guilty of the offence under the principle of “joint enterprise”.

The offence, which normally carries a maximum prison sentence of ten years imprisonment, is made out if:

A … intentionally causes … B

(a) to engage in an activity, and

(b) the activity is sexual, and

(c) B does not consent to engage in the activity, and

(d) A does not reasonably believe that B consents.”

We need to look at each of these elements in turn.

(a) Did Mr Newmark “engage in an activity”

He took at least one “graphic photo” of himself “below the waist.”

Because the Mirror’s report is worded in the tabloid’s traditionally titillating but coy style it is unclear exactly what Mr Newmark was doing. We can assume, I think, that it involved at the very least sending “Sophie” pictures of his penis. It seems quite likely that he would have been holding or touching his penis, at least for the purpose of taking the picture.

Even if this is all that he did, there is no doubt that he was “engaged in an activity” within the meaning of the Sexual Offences Act.

(b) Was the activity “sexual”?

S. 78 of the Sexual Offences Act 2003 helps here:

… touching or any other activity is sexual if a reasonable person would consider that –

(a) Whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(b) Because of its nature it may be sexual and because of its circumstances or the purposes of any person in relation to it (or both) it is sexual.”

This is not quite as clear as it might be. What it is getting at is that some activities are always sexual, whereas in other cases it depends upon the circumstances. An act of intercourse, for example, would be “of its nature sexual;” while the touching of a penis might or might not be depending on the reason for the touching. The essence of it is simple enough: an activity is sexual if the “reasonable person” would consider it sexual.

Fortunately, perhaps, the photographs themselves have not been published so we don’t know whether the Member’s member was visibly aroused. However, it is hard to conceive of anything other than a sexual reason for him to transmit a picture of his genitals. Moreover, if one looks at those parts of the online conversation that have been published – carefully edited though they may be – Mr Newmark’s picture was only sent after the two of them had talked of “taking it to the next level,” and after “Sophie” had first sent him “an explicit naked picture.”

It seems unlikely that the prosecution would have much difficulty proving that the taking and sending of his picture was a “sexual activity.”

  1. Did Mr Newmark consent to engage in the activity?

Of course in a sense he did consent. However his consent was to engage in a sexual activity involving a nubile young female called Sophie, not one involving a sleazy male journalist from the gutter press.

His consent, in other words, was obtained by fraud.

If Mr Newmark’s consent was obtained fraudulently does that still amount to consent in law?

The answer is provided by S.76 (2). If “Sophie” caused Mr Newmark to engage in the activity by “intentionally deceiving” him “as to the nature or purpose of the … act,” then there is a “conclusive presumption” that he did not consent.

At first sight this might leave a little wriggle room for “Sophie.” After all, she did not deceive him as to the nature of the act. But unfortunately for the Sunday Mirror there has been case law on the section.

In R v. Devonald [2008] EWCA Crim 527, a case that bears some striking similarities to Mr Newmark’s, the father of a jilted girl posed online as a 20 year old woman called “Cassey” and persuaded his daughter’s ex boyfriend to masturbate in front of a webcam. His purpose was to use the resulting video to embarrass or humiliate the boy. The boy’s purpose, on the other hand, was (at least partly) to give sexual gratification to the fictional “Cassey”. Presiding in the Court of Appeal Lord Justice Leveson had little hesitation in upholding the conviction, ruling that the father’s trickery vitiated any possible consent. As is often the case with the law, there are authorities which seem to point in the other direction, some of which have been helpfully pointed out by the commenters below.

So the legal position may be a little uncertain but Mr Newmark’s fraudulently obtained consent may well amount in law to no consent at all.  Even if the law is not as crystalline as it might be, there are not many people who would relish being the subject of a “test case”.

(d) Did “Sophie” reasonably believe that Mr Newmark consented?

We don’t need to waste any time on this. Clearly “she” knew that the only reason he was sending the explicit photograph was because of the deception.

Did “Sophie” cause Mr Newmark to engage in the activity?

The offence is only made out if “Sophie” caused him to take the photograph. Merely to engage in online sex talk would, in itself, not amount to “causing” him to photograph his genitals. Of course much depends on whether there was anything that amounted to a request – implicit or otherwise – from “Sophie,” or whether Mr Newmark, as it were, “made all the running.” The Mirror report is spare with details of that sort but it makes it clear that it was Sophie who initiated the sending of intimate pictures, albeit the ones she sent were pictures of other people. She seems to have done so in the expectation that there was a quid pro quo involved.

In other contexts “causation” is established simply by proving that a person played some part in an outcome, even if it was not the single, or even the main part. If a man is stabbed in the guts and taken to hospital where he picks up a fatal infection, it is no answer to a murder charge to say that it was the infection that killed him, because the stabbing was still a partial cause of his death.

So whilst the transcripts of Mr Newmark’s online conversation with “Sophie” would need to be studied with care, the indications at the moment are that the online seduction was the main reason, and probably the only reason, why he decided both to take the photograph and to send it.

All this means that “Sophie” has a great many questions to answer. There must be at least a reasonable suspicion that the reporter has committed a serious sexual offence. Moreover, he has done so in a front page lead story, which appears to have been held back for some weeks so as to be released at a time calculated to cause the maximum political damage to the Conservative Party. It is surely inconceivable that the Editor, Lloyd Embley, was not well aware of the story before it was published. If he had given encouragement to the sting operation before the picture was taken then he might well be guilty of the same offence as his reporter. Some would say that his guilt would be even more serious.

Should the matter be investigated, the CPS might have a choice of charging either the substantive offence under S.4 of the Sexual Offences Act, or (and this might be a more appealing option if there is evidence of several people being involved in the decision to run the deception) of a conspiracy to commit such an offence.

We know that Andy Coulson was gaoled for 18 months for conspiracy to commit an offence under S.1 of the Regulation of Investigatory Powers Act 2000 (or, more colloquially, to hack mobile phones). The maximum sentence for that offence was 2 years.

Andy Coulson: not a sex offender
Coulson: not a sex offender

Causing a person to engage in a sexual activity without consent is a far more serious offence. In fact we know that the law regards it as about five times more serious than phone hacking, because it carries a maximum sentence of 10 years imprisonment (or even life imprisonment if the activity caused involves penetrative sex). Anyone convicted must also sign the sex offenders register.

No doubt Mr Embley and his reporter carefully considered all these issues before taking the decision to humiliate Mr Newmark, and no doubt they will be in a position to justify their decision should Inspector Plod invite them in for questioning.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

32 thoughts on “Tricked into sex by fraud. Was the Sunday Mirror’s sting of Brooks Newmark criminal?”

    1. Thanks for the comment Edward – the perils of dashing off a post too quickly perhaps. On the other hand I’m not sure I agree with you that R v. B over-rules Devonald. Hallett LJ certainly doubted it, but she didn’t (and couldn’t) over-rule it.

      I’ve had to edit this reply because I’d originally posted a link to a different R v. B! (See Greg Callus’s comment below, & my reply to it).

      If anyone can find a link to R v. B [2013] EWCA 823 I would be very grateful if they could add it as a comment!

    1. It’s not quite the same, because in your example the the woman’s act of taking the picture would be for medical, not sexual reasons. On the other hand the man’s purpose in getting the picture is sexual, which could make the activity sexual under the statutory definition.

      It certainly is a crime to impersonate a doctor.

      1. Isnt the crime practicing medicine without being registered by the GMC? Certainly saying “I’m a doctor” in a bar isn’t illegal. Not sure which side of the line Harry’s hypothetical would fall.

        1. True, but getting a woman to send nude pics on a medical pretext sounds to me like practising. But to be honest I’m slightly shooting from the hip here, I haven’t looked at the law in detail. As always barristerblogger offers legal discussion, not legal advice.

  1. Is a complaint from Mr Newmark necessary for the police to investigate or for the CPS to prosecute? Unfortunately it seems unlikely he’d want to drag this on and make himself a perpetual target for the press.

    Great post, but I think Mr Newmark is more likely to try and have it blow over rather than go to the police.

  2. I think this is the wrong R v B case, Matthew (EWCA Crim 3 not EWCA Crim 823). The R v B to which Edward refers is a Hallett LJ decision which did doubt Devonald directly, but I wouldn’t say overrules it. It was a classic case of trying to get a s.76(2)(b) loophole closed by s.76(2)(a): the boyfriend created fake Facebook accounts (i.e. not persons known to her, so s.76(2)(b) didn’t apply) to induce his girlfriend, but the purpose was construed strictly to still have been sexual. I’m afraid I can’t find a free link.

    1. Many thanks for that Greg. Yes, you’re right of course. I too am struggling at the moment to find a link to B [2013] EWCA Crim 823. However, it did not (& strictly speaking could not) over-rule Devonald, although as you say Hallett LJ seemed to doubt it. In the absence of a link to the correct B, here is a link to the Blackstone commentary on the case, the crucial part is this:

      “In contrast to Devonald, where the complainant had been misled as to the offender’s true purpose, there was no real deception as to purpose in B.”

      http://global.oup.com/booksites/content/9780199658930/further/34123171/partb/

  3. Undoubtedly what the Sunday Mirror did was unfair. Whether it was illegal only a lawyer can judge but one thing is for sure – the Mirror is a nasty, twisted hypocritical paper that just loves to victimize people and this whole business is a form of bullying. The Mirror is a bully.

  4. In a normal situation, I take it that both parties would have consented to something in the sexual arena but as consent was obtained under false pretences, then I consider that an offence has been committed. However to a certain extent the defendant is the author of his own misery as most reasonable people would not have sent a picture of their person to someone that they did not know. This contributory factor is something that would be weighed up by the court.

  5. http://www.bailii.org/ew/cases/EWCA/Crim/2013/3.html

    I assume this is the case you’re referring to.

    Not being legally qualified I cannot comment on any possible criminality, but the paper has certainly acted shamefully.

    Had there been any evidence – I’ve seen none – that Mr Newmark was in the habit of pursuing junior females in or around the party and promising them advancement if they’d played his game, then the fault and guilt would be his and the sting just about justifiable. But in this case the journalist appears to have laid out his bait at a number of Tory MPs just in the hope that one would bite. One sad sap did, to his cost and embarrassment.

    What too of the women in the pictures? If they did not consent to their image being used – not to mention any third-party photographer of any of the pictures (some clearly being ‘selfies’) owning copyright – is there not also some potentially criminal conduct in that?

  6. Pingback: A Mark-ed Man.
  7. The site mentioned by the Mirror is called WhatsApp. In fact the Mirror is being misleading because WhatsApp is not a social networking site like Facebook. It’s a private messaging service just like text messages on a mobile phone or the private messages on Twitter. The contact started on Twitter and then switched to WhatsApp.

    1. I’m not surprised, The Mirror is a nasty, malicious slander sheet and can be relied on to misrepresent anyone who is not a card-carrying member of the Labour Party. It was owned by that crook Maxwell and it’s still just as bad as he was.

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