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.
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.
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.
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.”
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  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.
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.