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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Smith, R v [2004] EWCA Crim 2187 (5th July 2004) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2004/2187.html Cite as: [2004] EWCA Crim 2187

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2 Monday, 5th July 2004

Monday, 5th July 2004

1. LORD JUSTICE CLARKE: This is the judgment of the court. On 13th March 2003, in the Crown Court at Newcastle before His Honour Judge Cartlidge and a jury, the appellants, Michael Smith (previously called Norman Marshall) and Stephen Turner, were convicted of incitement to indecently assault a female and incitement to rape. Smith is about 43 years of age and Turner about 53. We will return to the sentences which were imposed a little later.
2. The original indictment had contained a joint charge of conspiracy to indecently assault a female, but the Crown did not proceed with that count. It thus proceeded with four counts. Counts 1 and 2 alleged incitement to indecently assault a female against Smith and Turner respectively and counts 3 and 4 alleged incitement to rape against Smith and Turner respectively.
3. The appellants appeal to this court pursuant to leave granted by the single judge, Langley J. Smith appeals against both conviction and sentence, whereas Turner appeals against sentence only. Turner did not apply for leave to appeal against conviction.
4. We consider first the appeal of Smith against conviction, although we refer first briefly to the background facts.
5. The appellants have convictions for numerous sexual offences. In Smith's case they relate to young girls, in Turner's case they go back many years and relate to adult and child females. In or about February 2001 they met while serving sentences of imprisonment at Frankland prison. Smith was released on 2nd August 2001. Turner was released two years later. On his release, Turner was met by Smith at Durham railway station. Smith produced a pair of girl's knickers and said that he was genuine and would be in touch. Smith then started up a written correspondence with Turner, describing acts of rape and indecent assault that he said he had performed on young girls. In that correspondence Smith repeatedly promised to bring a young girl from Newcastle to Turner's house in South Yorkshire for the purpose of rape and indecent assault by them both.

The appeal against conviction

6. The Crown case depended entirely upon the contents of correspondence between Smith and Turner when set in its context. It was the Crown's case that in the letters from Smith to Turner and Turner to Smith each incited the other to commit rape and indecent assault on young girls. The defence of both men was the same. It was that the letters were all fantasy and in that sense were innocent, at any rate in the sense of not being criminal. There was no prospect of any of the suggestions in the letters being carried out and there was no incitement.
7. Smith originally appealed on five grounds as follows: (1) that the judge should have acceded to a submission on his behalf at the end of the Crown case that he had no case to answer and withdrawn it from the jury; (2) that the judge misdirected the jury as to the meaning of "incite" and "incitement"; (3) that the judge did not direct the jury adequately or at all as to how they should approach the evidence; (4) in particular, that the judge did not direct the jury as to what was meant by "fantasy" in this context; and (5) that the judge misdirected the jury on the burden of proof.
8. The first ground was abandoned before the hearing of the appeal on the footing that, in the light of the authorities, it has no reasonable prospects of success. It follows that the appeal has been argued for the most part on the basis that, if properly directed, the jury could safely convict Smith, and indeed Turner, for both incitement to rape and incitement to commit indecent assault. That is subject to what are essentially grounds 3 and 4 of the grounds of appeal, namely that the judge did not sufficiently direct the jury in relation to those parts of the letters which the jury might find to involve fantasy.
9. We shall consider ground 2, then grounds 3 and 4 together, and finally ground 5.

Ground 2: incitement

10. The judge prepared a document for the jury which included his direction as to the meaning of "incite". In the course of his summing-up he said at 6B:

"Incite means urge, spur on, stimulate, encourage or pressure. OED, members of the Jury, is a reference to the Oxford English Dictionary [We interpose to note that in his written memorandum for the jury he had included the words OED in brackets after the reference to pressure]. To urge, spur on, stimulate, are words I found from the Oxford English Dictionary, encourage or pressure are words that I have found in cases in the past where incitement has been alleged. Incite means urge, spur on, stimulate, encourage or pressure someone to do something, and you can see from the indictment what it is that the Prosecution say was being incited. The Prosecution must prove that the Defendant alleged to be inciting, intended by his action that the other Defendant should commit, depending on which count you are considering, the offence of rape or indecent assault, either on his own or with the Defendant who was doing the inciting."

The judge then correctly defined rape and indecent assault.

11. Mr Dunne accepts that the judge's direction as to the meaning of incite is correct, subject to one point. He submits that the judge should not have included the word "stimulate". He refers to a decision of the Civil Division of this court in Race Relations Board v Applin [1973] QB 815 at 825 in which the court was considering the meaning of "incites" in section 12 of the Race Relations Act 1968. Lord Denning said this:

"If therefore Mr Applin and Mr Taylor 'incited' Mr and Mrs Watson to do an unlawful act, i.e. to take white children only, they are to be treated as themselves doing that act, even though the incitement did not succeed. Here I may mention a small point. Mr Vinelott suggested that to 'incite' means to urge or spur on by advice, encouragement, and persuasion, and not otherwise. I do not think the word is so limited, at any rate in this context. A person may 'incite' another to do an act by threatening or by pressure, as well as by persuasion. Mr Applin and Mr Taylor undoubtedly brought pressure to bear on Mr and Mrs Watson to take white children only, and thus 'incited' them to do so."

12. Mr Dunne relies on the fact that Lord Denning did not include there the verb "stimulate". However, it is right to say that in that case the Court of Appeal was not seeking to give an exhaustive definition of the word "incite" either in section 12 of the Race Relations Act 1968 or at all.
13. In the tenth edition of Smith and Hogan's Criminal Law, edited by Professor J C Smith, at page 290, Smith and Hogan set out the definition of "incitement" in the Draft Criminal Code, namely:

"(1) A person is guilty of incitement to commit an offence or offences if -

(a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and

(b) he intends or believes that the other, if he acts as incited, shall, or will do so with the fault required for the offence or offences.

Smith and Hogan continued:

"The Code does not elaborate the meaning of 'incite'; but it has been said that an inciter:

'... is one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other's mind may take various forms, such as suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity."

See Holmes JA in Nkosiyama 1966 4 SA 655 at 658, approved in Goldman [2001] Crim LR 894. See also DPP v Armstrong [2000] Crim LR 379. After that quotation Smith and Hogan continued:

"In Marlow [[1997] Crim LR 379 DC] the court observed that this 'gamut of words' omits 'encourage' which, it thought, 'represents as well as any modern word can the concept involved', but then added the proviso that it must be clear that the encouragement involved is a positive step 'aimed at inciting another to commit a crime'. So it is not every encouragement which necessarily amounts to incitement. Perhaps the best word is 'incite' itself."

14. In the course of the argument Mr Dunne recognised that the use of the word "stimulate" might not be the subject of a proper complaint in very many cases as a synonym for "incite", but he submitted that it was an inappropriate word to use in the context of the facts of this particular case having regard to the subject matter of this somewhat degrading sexual correspondence.
15. While we can see that there is scope for debate as to the different nuances of meaning to be given to words like "urge", "spur on" and "stimulate", or indeed to "encourage" or "persuade", or any of the other words which might be adopted, we do not think that on the facts of this case the jury could have been misled in any way by the inclusion of the word "stimulate". We do not think that there is, for example, any difference in the present context between the expressions, say, "urge by persuasion" or "stimulate by persuasion". While we are inclined to think, perhaps with Smith and Hogan, that it would be better to define "incite" by less rather than more synonyms, and that it may be that it would be better not to use "stimulate" as one of them, we do not think that the use of it amounts to a misdirection on the facts of this case. In any event, the inclusion of it could not possibly make these verdicts unsafe. This ground therefore fails.

Grounds 3 and 4: approach to the evidence

16. The defendant's case at the trial was that the whole of the content of the letters was pure fantasy. In particular, none of the girls referred to was real and none of the sexual activities described in fact took place.
17. Mr Dunne's submissions in support of the appeal against conviction may be summarised as follows.

(1) The judge failed adequately, or at all, to direct the jury on how they should approach the evidence within the framework of his directions. In particular: (a) the one example from the evidence that was characterised as incitement (which is at page 18F-19C of the transcript) was referable to an admittedly fantasy figure, namely Sophie, a child whose picture was obtained from an encyclopaedia; (b) although the judge fully and fairly put before the jury the numerous instances of fantasy contained in the correspondence (see pages 25 to 30), he failed to direct the jury as to how they should approach that task in the event that they found that each such reference to a person or event was a reference to a person that did not exist or to an event that had not occurred; and, (c) if the jury found that those persons and events were works of fantasy, he did not identify what room there was for an incitement to be proved when the writings themselves were referable, from Smith in any event, only to those characters.

(2) While the judge directed the jury that they "could acquit" if they found that either defendant was engaged in fantasy, he did not identify for them what he meant by fantasy. He did not direct the jury as to whether it was sufficient for an acquittal that the characters themselves might be works of fantasy or whether by fantasy he meant the whole nature of the communications from the applicant to Turner.

18. Mr Dunne adds that those criticisms are self-explanatory and somewhat overlap. At their heart lies what he submits was the failure of the judge to direct the jury with clarity on how they should approach their task. He says that the judge poses questions and sets out competing arguments but does not then provide any direction as to the legal consequences that may flow.
19. Mr Dunne gives this example. Having comprehensively demonstrated from the evidence that the characters in the letters were works of fiction, he did not go on to provide any guidance as to how that fact affected or could affect the jury's view on the intention that the prosecution had to prove. This criticism, he says, is compounded when one considers ground 5, to which we will return in just a moment.
20. In considering these submissions it is important to note that Mr Dunne concedes, in our view correctly, that the judge fully and fairly put before the jury numerous instances of fantasy contained in Smith's correspondence. Thus, it is not suggested that the judge mis-characterised the contents of the correspondence in any way. Moreover, we have held that he correctly directed the jury on the meaning of "incite" and it is not suggested that he did not correctly direct them as to the intention which the Crown had to prove. In this context he gave them this direction at page 6 at E, to which we have already referred:

"The Prosecution must prove that the Defendant alleged to be inciting, intended by his action that the other Defendant should commit, depending on which count you are considering, the offence of rape or indecent assault, either on his own or with the Defendant who was doing the inciting."

21. The position is therefore as follows:

(1) The jury knew that in the case of each defendant in order to convict him they had to be sure (a) that in the letters he wrote he incited the other defendant to commit rape or indecent assault, and (b) that in writing the letters he intended that the other defendant should commit the rape or indecent assault, as the case might be, either on his own or together with the writer.

(2) The judge put all relevant facts before the jury, including the contents of the letters, which in any event the jury had in front of them as part of the evidence and which they could further study at leisure in the jury room when they retired.

(3) It is conceded, again in our view properly, that the jury could safely convict either or both defendants on the evidence. The sole question is whether the judge gave the jury any or any sufficient direction as to how they should approach the letters, and in particular how they should approach the case if they found, as they were almost certain to do, that the references in the letters were to children who did not exist and to events which had not occurred.

22. Mr Woodcock submits on behalf of the Crown that, with one possible exception in relation to ground 5, the judge directed the jury entirely adequately. His submissions may be summarised as follows:

(1) There was a perfectly clear case for the appellant to answer and the judge did not err in leaving it to the jury.

(2) It was unnecessary for the Crown to prove that any real and intended victim existed at the time of the incitement to commit either of the substantive offences alleged. It was never the Crown's case that any of the characters referred to in any document put before the jury was a real person.

(3) The thrust of the Crown's case on the letters was that they proved that, when there was an identifiable victim, the party incited would engage in the offences incited. The absence of an identifiable victim at the time of the incitement is not fatal to a valid count of incitement. It would be different if the Crown's case alleged, for example, that A incited B to rape C. In such a case there would be an averment that C existed. This is not such a case.

(4) The case was presented to the jury at the outset as one in which substantial parts of the letters between the accused put before them were fantasies of the writers. Equally, it was self-evident from the appearance and construction of some of the letters that they were make-believe.

(5) What was not make-believe or fantasy was the context in which the letters and documents as a whole were sent: (i) each accused was urging the other to considerable caution; (ii) Smith, by his subterfuge, had found employment of a type from which his licence prohibited him; (iii) Smith had begun a relationship with Carol Heslop, the mother of a small daughter; (iv) Smith had begun to cultivate a relationship with Sammi, a mother of two very young daughters - one was already of an age to which the facts of this case suggest Smith had a previous predisposition and the other would be of such an age when Sammi, who was in prison, was likely to be released. In this relationship Smith frequently urged her to secure reconciliation with her own parents, who had custody of the elder of the daughters. His confessed dream was that all three of them would one day live together; (v) Smith's correspondence with Turner frequently made clear that the plan was long term and that they should be patient; (vi) it was open to the jury to find that Turner was taking Smith's letters and promises seriously. If that was clear to the jury, it must have been clear to Smith. When Smith in one letter refers to sexual acts not to the liking of Turner, Turner informs him of his dislike. This is not consistent with purely fantasy letters and an absence of criminal intent; (vii) having listened to the entire contents of many letters written by each of the defendants to the other and read them again for themselves, the jury cannot have required any further direction from the judge as to what was meant in this case by fantasy. It is the human experience that many people possess sexual fantasies. It is doubtless the experience of many that people do exist who delight in sharing those fantasies, but the context of Smith's letters to Turner was such that a jury could safely and without further direction be sure that he intended Turner to engage with him in the depravity canvassed in the letters. The judge was painstaking in his summary of the defence case, including of course that of Smith. The jury cannot have been under any illusion as to what the defence were suggesting by use of the word "fantasy" after so careful analysis of the defence case by the judge.

23. It is not necessary for us to quote large passages from the letters given the concession that Smith had a case to answer. The evidence was entirely contained in the letters set out in the context referred to in Mr Woodcock's submissions. Neither defendant gave evidence, although both answered questions in interview from which it was clear that their defence was that the letters were pure fantasy and that there was no relevant incitement or intention.
24. No complaint is made as to the summing-up in relation to any of those aspects of the case, for example as to the inferences which might be drawn from a failure to give evidence or as to lies told in the interviews. We will refer to very little of the summing-up in this regard, but it included the following at page 16:

"The Prosecution case is that Mr Smith and Mr Turner were engaged in a project, with the objective of unlawful sexual misconduct, specifically the rape or indecent assault of a young girl. The Prosecution say that the project may have been a long-term rather than a short-term project, and the Prosecution say that the time which lay between hope and expectation and eventual fulfilment may have been occupied to some, or a large extent, by pure fantasy, but the Prosecution say that that does not cast doubt on the objective.

The Prosecution say you can infer that the two Defendants met in prison, and by the time of the letter of the 17th of August 2001 each knew what interested the other. In the letter of the 17th of August 2001 Mr Smith writes, 'We have the same interests, and I know I can trust you'. This is immediately followed by references to knickers, two year old Sophie, and later to taking photographs showing an erect penis."

At page 18 the judge referred to one of the letters written by Smith as follows:

"So can I then, members of the Jury, ask you to look at [page 22 of the defendant's bundle]. This is a letter from Mr Smith to Mr Turner beginning, 'Dear Uncle John...' Over the page there is a long description of indecent assault and rape [and a little later]:

'When you write back tell me about what we will do with Sophie when I bring her down. Imagine it's just you, me and her in a flat somewhere. My cock is rock hard just thinking about it."

The judge continued:

"The Prosecution say there is a long description of an event which may be, you could suppose, was either a description of a rape or an indecent assault, and the Prosecution say in this passage, here is incitement to Mr Turner to be involved in that. The Prosecution say in the letters from Mr Smith to Mr Turner there is emphasis on the need for caution and patience in that first letter he writes, 17th of August, you see at the end the instruction to destroy the letter after reading. The Prosecution say when interviewed Mr Smith almost certainly thought that there wouldn't be the material that would, if you will, compromise him in unpleasant correspondence.

The Prosecution say if it is just fantasy it does not take patience, planning or time."

25. In the course of the argument in this appeal our attention has been directed to a number of further letters in this substantial bundle, including, for example, one dated 5th October, page 73 of the defendant's bundle, which includes the following quote:

"We met another girl too, Samantha, she has two girls, one Rosie who is 4 and Sasha who is 10 months. She's gorgeous, I'll have her fanny sucked within a week I'm sure. I'm also dying to bring a little girl down so we can fuck, suck and lick her, but I'm not sure when it will be. To be honest, I'm not happy bringing any girl while your curfew is ongoing, they'll be monitoring every move you make and all they have to do is to see you with a child and you're fucked. We've got to be very careful."

That too was said by the Crown to be an example of incitement in relation to bringing a girl down in the future.

26. We will refer to just one other matter. We were referred to a letter from Turner to Smith, which includes this:

"Mick, please, please bring a little girl to see me that day you come to see me. My cock is waiting to be sucked by a little girl and I'm waiting ..."

27. It is submitted with considerable force by Mr Woodcock on behalf of the Crown that any future letters written after that to Smith of the kind to which we have already referred would be the plainest incitement such as to enable the jury to conclude that both the letters amounted to incitement and that Smith had the relevant intention described by the judge.
28. The judge referred expressly to another letter on page 20 of the summing-up which included this: "I am an expert at finding women with young kids". The judge also referred again to a sentence saying "you have got to be very, very careful".
29. The judge warned the jury about what he called "cherry picking" and told them that the letters must be considered in their context, but in our judgment the jury cannot have been in any doubt as to what the Crown were saying, and they cannot have been in any doubt that the Crown were saying that there was both the relevant incitement and the relevant intention.
30. Then between pages 25A and 30 the judge directed the jury as to the defence in some considerable detail. He began at page 25A in these terms:

"Mr Smith's defence, members of the Jury. Consider what he actually writes, is it no more than just description, can simple description be incitement. Those are the sort of questions that are posed there. I mean, I have been through what the Prosecution say is significant about the material that he has produced. The Prosecution say there is material from which you can decide there was incitement, but Mr Smith's defence is, number one, these are just descriptions and that cannot be incitement. Contrast his material, say where Mr Turner is writing, 'Try your hardest to bring a girl for me to shag.'

The chronology, Mr Dunne on behalf of Smith says, Smith was writing the fantasy documents that you see at the start of the Defence bundle for Turner's benefit. These were written obviously in prison, we have been through how they were found in the Oxley envelope. The only communication between Smith and Turner is on paper. There is the meeting at Durham Railway Station in August of 2001, but no evidence of mobile phone exchange. Sophie is a character from the fantasy documents, and, says Mr Dunne, read that letter, 17th of August, from Mr Smith to Mr Turner, in the context of the preceding documentation, which are the fantasy documents. All that was ever found in Mr Smith's possession were a pair of clean knickers, no children's clothing, no camera, whether a Polaroid or a camcorder type.

The pictures that Mr Smith sent to Mr Turner are obviously from a catalogue, no real pictures sent. If you look in the Defence bundle at page 29 you will see the girl on the reference to '... girl sat on the orange slice', remember we are looking at the numbers at the bottom here. Mr Smith writes, 'I am enclosing some pictures for you to wank over, especially the little girl set on the orange slice.' The girl on the orange slice is the girl in the top left-hand corner of the document.

On page 33 there is a picture of Sophie, that is page 32 in the Defence bundle. At page 38 there is reference to, that is in the Defence bundle, Danielle and Vicky. If you look at page 41, this top photograph in the middle is what Mr Smith sent relating to that description. All of these photographs are not of, well they are of real children, but they are not anything to do with Mr Smith, or remotely children from his world, or within his grasp, if you like, they are out of catalogues. The picture of Sophie is out of, I think it is called Thompson's Encyclopaedia, but maybe these children live miles away, or in different countries even.

At page 73 in the bundle you could see there, members of the Jury, reference to Danielle and Vicky, and relating to the picture from the cut out. Hostel staff were interviewed by the Police. If you look at page 14 in the Defence bundle, Mr Smith is describing a relationship with someone called Lisa, hostel staff who were supervising Mr Smith at the time indicate there was no suggestion that Mr Smith was having any sort of contact or relationship with a woman as he is describing.

The letter of the 22nd of August refers to Lisa, plainly in the sense of being an adult. At page 22, in the middle, there Mr Smith talks about having to cut down his visits to Lisa, as the hostel are starting to ask questions. No suggestion from the Police enquiries of the hostel that anyone was asking questions. Page 20 in this bundle, there is reference to the letter to Samantha Watts, just an example of fantasy, right at the bottom, 'My sister Sophie'. He has not got a sister Sophie, the sister is Sandra, Sophie is the name that was generated in the original fantasy material.

At page 258 or so, 9 lines up from the bottom, 'I might be swapping my little Nova for an Escort. The van's better'. We have been through that. He never had a van. He had a Nova when he was arrested in August, and the Police, you will remember, looked in the Nova. Page 27, the letter to Samantha, he sends a photograph, not with a Polaroid or a camcorder or with a computer, it is from a photo booth, an indication, say the Defence, there of the sort of physical material he had available for his use. If he wanted a photograph he had to either take it out of a catalogue, or go to the photo booth.

Page 48, there is more fantasy with Samantha Watts, when he talks about spending £28 for flowers for someone at work, and then the fantasy of the photograph not taken by Mr Smith, but a photograph he says of the folk at work. It is actually tenants at the Pennywell Bail Hostel, that is at page 62.

MR WOODCOCK: Staff, in fact, your Honour was the evidence.

JUDGE CARTLIDGE: Yes, staff. Thank you, Mr Woodcock. Page 59, he tells Samantha Watts about his family catering business. Page 69, members of the Jury, if we just look at that for a moment, the Defence say well here is about the plainest bit of fantasy you could see. When you look at it you see it is written in the present tense, it cannot be happening in reality in this fashion because, as you look at it, and you see he writes, 'She is sitting on the settee over there', and it is, say the Defence, quite obviously a fantasy description, the sort of thing, perhaps in a slightly milder form, you could find on the top shelf of a Soho bookshop. That is what that is, and you will remember Mr Dunne exploring that passage with you.

Page 73, another example of something that just cannot be reality, but must be fiction or fantasy, 'I have met another girl too, Samantha'. Well, all right, he has not met her, but he has been writing to Samantha Watts. 'She has two girls, one Rosie.' All right, well Samantha Watts does have a child called Rosie. 'Sasha, 10 months. She's gorgeous, I'll have her fanny sucked within a week I'm sure'. There is no prospect of that. Rosie was, I think, in foster care. It does not really matter, Sasha, if she was not in foster care, was being looked after by the grandparents, there was absolutely no way Mr Smith was going to have any contact with either of those children, least of all within a week.

Page 73 or so, there is reference to, 'I've cut some of Danielle's hair'. The Police recover not real hair, but they recover a nylon strand. He speaks there of taking Samantha out. Well, he is not going to be doing that, because Samantha, as we know, is in prison, and her earliest release date is something like 4 years or so ahead.

Page 76, reference to his wife committing suicide, certainly by way of beginning a letter, 'My ex-wife has only gone and committed suicide'. That is in the first, second line of the letter, and plainly not really reality.

Page 84, he writes to Mr Turner saying he's going to take the girl, presumably when one follows the context, Samantha, and two daughters to Tenerife. Well no, he is not, she is in prison, her daughters are not available, he has not met them, but here he is writing to Stevie Turner putting that in.

Page 91, he describes his job as a patrol man on the Metro, with all the advantages that offers to someone who is interested in schoolchildren. But he is not a patrol man, he is a cleaner.

Again, members of the Jury, I have gone through examples which the Defence say, in the context of this case, are significant, for it reveals that one, Mr Smith was concerned with description of events which were not reality, and here is proof that there were not real events, none of the people he mentions by way of children, apart from say Samantha Watts's children, can be shown to exist, and Samantha Watts's children do exist, but they are unavailable to him. So, the Defence say he has not incited Mr Turner. he has offered descriptions. If he was inciting, and we do not accept that, what has happened is they have indulged in a fantasy, and there was no intention such as that which you have to be sure about before you could convict Mr Smith of the two charges laid against him."

31. The judge thus gave the jury a number of examples of extracts from the letters which could not be reality but must be fiction or fantasy. In our judgment, there was no need for the judge to go further. The jury had to decide whether the contents of the letters were or might be pure fantasy or whether they could be sure that in the letters Smith was inciting Turner to commit real rape or real indecent assaults on real, if as yet unidentified, children, and whether he intended that Turner should in fact commit real rape or indecent assault. In short, we in essence accept Mr Woodcock's submissions made on behalf of the Crown. In our judgment, the jury were properly directed in this unusual case and grounds 3 and 4 fail.

Ground 5: burden of proof

32. Ground 5 is as follows. While the judge had earlier directed the jury on the burden of proof, his later direction that they could acquit if they found that either defendant was engaged in fantasy was insufficient. At no point were the jury directed that if they found that either defendant was or may have been engaged in fantasy, then they should acquit.
33. There are two parts of the summing-up which are relevant to this point. In the first, at page 4G, the judge said this:

"May I come on to the first direction about the law. I fancy it is one you are very familiar with, but it is so important that it bears mention at the very start of the summing up. The burden of proving the case rests from start to finish on the Prosecution, at no stage does that burden shift. So from first to last, if there is to be a conviction, it is the Prosecution who have the burden of proving the case, from first to last the Prosecution have the burden of proving the case they lay against each of the Defendants. The Prosecution only prove the case if, on the evidence presented to you, you are sure that the Defendant is guilty of that with which he is charged. So, there cannot be a conviction unless the Prosecution, who have from first to last the burden of proving the case, make you sure that the Defendant is guilty of that which he is charged."

34. In our judgment, the judge made the position relating to burden of proof abundantly clear in that passage. To put it colloquially, he laid it on thick, as no doubt counsel had done in the course of their final addresses to the jury. Then a few pages later, at page 8, he said this at G:

"Each of the Defendants presents a different case, because each of the Defendants has written different material, although the Prosecution say both were participating in this exchange of correspondence. But it is obvious, I suppose, on reflection, that you could acquit one Defendant and convict another, you could convict both Defendants, you could acquit both Defendants, because if you consider the case of each on its merits you have to consider, for example, what each was intending. It may be that your decision is, one was engaged in fantasy the other was not, it may be your decision is both were engaged in fantasy. You must remember, of course, that it is for the Prosecution to prove the case, the Prosecution must make you sure that each was, if you are convinced one was inciting the other, each was doing it with the intention which I have already described."

35. In the course of oral argument Mr Dunne was not able to point to any particular part of that passage which amounted to a misdirection. That is scarcely surprising when it ends up with the judge again telling the jury that the prosecution must make them sure of the alleged incitement. Mr Dunne was reduced to saying that the problem was in the tenor of the passage, but for our part we are unable to agree. In our judgment, the judge made abundantly clear that the burden of proof was on the Crown throughout and that the standard of proof was that they must be sure.
36. It follows that ground 5 fails. We have considered each of these grounds together and cumulatively, but we have reached the firm conclusion that the conviction of the appellant Smith was safe. If follows that his appeal against conviction is dismissed.

The appeals against sentence

37. We turn to the appeals against sentence. Both appellants appeal against sentence and both take essentially the same points. The judge drew no distinction between the two appellants. The sentences of immediate imprisonment were passed as longer than commensurate sentences pursuant to section 80(2)(b) of the Powers of Criminal Courts (Sentencing) Act 2000.
38. On counts 3 and 4, the rape counts, the sentences passed were 13 years, made up of 8 years expressed as a commensurate sentence and 5 years as the longer than commensurate term. Further, the judge passed extended sentences on the rape counts of 23 years, made up of 13 years as the custodial term and 10 years as the extended period of licence. The effect of those sentences is that each appellant is liable to be recalled to custody after release at any time during the remaining period of the licence without the intervention of the court if the terms of the licence are breached. If recalled, his case will be reviewed annually by the Parole Board, but unless released pursuant to the direction of the Parole Board he would remain in custody until the end of the extension period.
39. On counts 1 and 2, the indecent assault counts, the sentences passed were 10 years in the case of each appellant, made up of 5 years expressed as a commensurate sentence and 5 years as the longer than commensurate term. In the result the total sentence was 10 years, which is in fact the maximum sentence for an offence of indecent assault. Although some doubt was expressed by the Criminal Appeal Office on this point, we are satisfied that the judge did not impose an extended sentence in the case of the indecent assault.
40. In addition, both appellants were made the subject of restraining orders pursuant to section 5A of the Sexual Offences Act 1997 for life. We have seen a copy of the restraining orders and they are undoubtedly in draconian terms. However, no complaint is made as to the terms of the restraining orders. Finally, having been convicted of sexual offences to which Part I of the Sex Offenders Act 1997 applies, both appellants were required to comply with the provisions of section 2 of the Act, namely notification to the police for an indefinite period.
41. It is conceded that in the light of Nelson [2002] 1 Cr App R (S) 134 and other recent cases such as Ricky D [2001] 2 Cr App R (S) 281, it could not sensibly be said that the judge was not justified in passing both a longer than commensurate sentence and an extended sentence in the case of both these appellants. However, it is submitted on behalf of both appellants that both the length of the custodial term and the length of the extension period were manifestly excessive. In the case of the sentence on the indecent assault counts it is further submitted that it was wrong in principle to impose the maximum sentence having regard to the fact that this was a case of incitement.
42. It is correctly conceded on behalf of both defendants that these offences were very serious indeed. In this respect we could put the position no more clearly than the judge did between pages 1 and 5G of the sentencing remarks:

"Michael Smith, formerly Norman Marshall, is a 42 year old man. Stephen Turner is a 52 year old man. The jury, after a trial, have convicted each of the defendants of incitement to rape a female under the age of sixteen and incitement to indecently assault a female under the age of sixteen, so each defendant has been convicted on one count of incitement to rape, one count of incitement to indecently assault. The incitement occurred over a period from August 2001 to mid June 2002.

The Prosecution case depended, for the most part, on written material passing between the defendants. The material was a catalogue of appalling depravity. It revealed a disgusting and shocking obsession with sexual perversion involving young female children. The letters were written to or from a little girl lover. There were fourteen original letters from Mr Smith to Mr Turner. Many drafts of letters from Turner to Smith were found and one unopened letter from Turner to Smith was found at Smith's address. The correspondence thus occurred over a ten month period, and it did reveal an enduring perverted interest in sexual relations between themselves and girls aged about six years.

It is impossible to say how much of what was written was fantasy. I accept that much of the material involved a degree of fantasy, but it is absolutely clear that each of the defendants intended to abuse children where possible when opportunity eventually arrived. Each was engaged on a project to this end. The defendant, Smith, hoped for a relationship with a mother or mothers of children for this purpose. The defendant, Smith, in the correspondence actually expressed himself as expert at finding women with young kids. In August 2001, he began a relationship with a woman who was a serving prisoner. He had never met her, but I am convinced that what attracted him to this woman, of whom he knew little, was his knowledge that she had a young child or young children. In October 2001, the defendant, Smith, engaged in a relationship with a lady who was not a prisoner but had been introduced to him by a relation. The relationship was a short one because soon enough the defendant, Smith, was returned to prison in breach of his licence. The concern in relation to this lady was that she had a young child and it is obvious that Mr Smith was interested in her for the sake of a relationship with the young child.

The defendant, Smith, after he was released from prison, changed his name and indeed obtained the tenancy of an address. None of these facts were known to the authorities. I emphasise that Mr Smith is not to be sentenced for changing his name or finding an address of which the authorities were ignorant, but it is a factor which I reflect on as I consider his case.

Michael Smith has a conviction on the 19th November 1996, when he was imprisoned for nine years for six offences of indecent assault, two offences of taking or making an indecent photograph and two offences of obtaining by deception. The offences are described in the antecedent history. I will not myself go through them. All these offences are mentioned in the two reports I have. One report by Mark Ryland from the Sex Offender Team is dated the 4th April 2003. The other report from Gary Connor, a Probation Officer, is not dated but it is before me. I read from Mr Ryland's report at paragraph 17: 'Against all reliable actuarial measures available to me Mr Marshall (Smith) is assessed as a very high risk of re-offending, and given the nature of his offence type he presents a very high risk of causing serious harm to female children. He is a very plausible man,' this is paragraph 21, 'who has demonstrated to me that he is both knowledgeable and skilful in forming and manipulating relationships to give him access to children. His behaviour demonstrates a longstanding fixated attraction to female children. The fact that he has constructed such vivid fantasies is alarming in that this behaviour alone, without the element of incitement, represents a worrying lapse towards offending behaviour that does not seem to have occurred to him.'

Mr Connor comments at paragraph 11 in his report: 'That the present offences occurred shortly after release from a lengthy prison sentence within which Mr Smith has completed two offending behaviour programmes is alarming. His breach of past court disposals, breach of licence and breach of Sex Offender order all indicate he is prepared to persist in behaviour that increases the risk of further offending. The change of name by Deed Poll and taking up employment indicate his continued wish to place himself in positions that allow him to target vulnerable women and children away from the intended restrictions of a Sex Offender order in place. Mr Smith's admitted lack of will to accept restrictions placed upon him led him to state 'I will never co-operate with Probation', therefore it is difficult to see how he can be effectively monitored or supervised in the community.'

Stephen Turner has convictions dating from November 1972. He was placed on Probation for two years for two indecent assaults on females over the age of sixteen. In 1974, a suspended prison sentence was imposed on him for two indecent assaults on females over the age of sixteen. In August of 1974, he was sent to prison for a total of eighteen months, having breached his suspended sentence, when he was convicted of indecently assaulting a female over the age of sixteen. In 1976, he indecently assaulted a female and was sentenced to eighteen months. In 1982, he indecently assaulted a female and was sentenced to twelve months' imprisonment. In November 1990 he indecently assaulted a female. He received an eighteen months sentence wholly suspended. On the 19th June 1998, for gross indecency with a child, the Court imposed a five year sentence of imprisonment.

I have a report on Stephen Turner from the Sex Offender Team, in person a report from Felicity Loxley, dated 27th March 2003. I have a report from Tanya Graham, a Probation Officer, dated 2nd April 2003.

Paragraph 12 of Miss Loxley's report observes: 'In my view Mr Turner has manipulated colleagues in the Prison Service and South Yorkshire Probation Service by clearly planning these current offences whilst attending programmes designed to help stop men re-offending and whilst in prison on licence. This does not bode well for his future management. Mr Turner is aware he is facing a lengthy custodial sentence. To his credit he recognises that if he is to reduce a risk in the future he will need to be motivated towards change prior to engaging in further work on any prison-based Sex Offender Treatment Programme, which would otherwise serve no useful purpose for him. I left him in no doubt that he would be considered a high risk of re-offending. He needs to find a way to accept full responsibility for the offences and examine his attitudes to sex and develop an understanding of how his victims felt then, now and how they may be affected in the future."

43. As we understood counsel's submissions, none of those conclusions expressed by the judge is in issue and they undoubtedly justified long sentences. However, it is stressed on behalf of both appellants that no rape or indecent assault, or indeed attempt to rape or attempt to commit an indecent assault, was alleged by the Crown, let alone proved.
44. It is submitted that the sentences were manifestly excessive and wrong in principle on the basis that the judge gave insufficient weight to the fact that the substantive offences of rape and indecent assault were not committed. There was a lengthy course of correspondence, but it did not in the event lead to any actual harm to young children. Indeed, it is right to say that exhaustive police enquiries revealed that nothing untoward had happened to the one child who had come into contact, for example, with the appellant Smith. Equally, there are no substantive allegations against the appellant Turner.
45. In our judgment, while the effect of the incitement is of no relevance to whether or not the offence of incitement was committed, it is plainly relevant to the length of the sentence to be imposed.
46. It is correctly conceded, in our view, that the judge was entitled to have regard to the potential for harm, and there was considerable potential for harm having regard to the reports which are referred to in the passages from the judge's sentencing remarks to which we have referred.
47. It is submitted that the judge must have taken too high a starting point. It appears that he took as a starting point eight years for the rape offences. It is submitted that he may have misdirected himself by referring to the leading case of Millberry, which gives eight years as a starting point for offences of aggravated rape of this kind, whereas no offences of rape were in fact committed here.
48. We have reached the conclusion that there is force in that submission and that the judge passed a manifestly excessive sentence in choosing eight years as the commensurate sentence for the rape offences. We have reached the conclusion that the commensurate sentence should have been of the order of six years. We have also reached the conclusion, having regard in part to that conclusion, that the longer than commensurate period of five years was also excessive. The authorities show that some regard must be had to proportionality in this regard. We have reached the conclusion that the appropriate figure would be three years, making a total period of nine years' imprisonment in all.
49. As to the extended period of licence, it is correctly conceded, in our judgment, that this was an appropriate case for making an order, but in all the circumstances, and again in part having regard to the conclusions that we have just expressed, we have reached the conclusion that for the rape offences an extended period of ten years was too great and that a period of five years was appropriate. It follows that for the rape offences the whole period, including the extended period, will be fourteen years made up of nine years' imprisonment, of which six years is the commensurate period and three years is the longer than commensurate period, and an extended licence period of five years.
50. Finally, we turn to the indecent assault counts. There, for substantially the same reasons, we have reached the conclusion that the commensurate period should be five years and that the longer than commensurate period should be two years, making a total of seven years. We do not think it appropriate to impose an extended period of licence in the case of the indecent assault.
51. In conclusion, Smith's appeal against conviction is dismissed. Both appellants' appeals against sentence are allowed in part to the extent that we have indicated.