Hedgcock & Ors, R v

J U D G M E N T

Monday 26 November 2007

LORD JUSTICE LAWS:

1. These appellants faced an indictment containing 51 counts. They appeared before His Honour Judge Rivlin QC at the Southwark Crown Court on various dates between 2 February 2006 and 13 January 2007. On 21 June 2006 pleas of guilty were entered by all three appellants to counts 4-51. Dyer (then named Beavan) pleaded guilty to eight counts of distributing indecent photographs of a child under 16, ten of making indecent photographs of a child under 16, one of possessing 4,318 indecent photographs of a child and one count of possessing thirteen indecent movies of a child under 16. Hedgcock pleaded guilty to two counts of distributing indecent photographs of a child under 16, ten of making indecent photographs of such a child, one of possessing 647 indecent photographs of such a child and one of possessing three indecent movies of a child under 16. Mayers pleaded guilty to four counts of distributing indecent photographs of a child under 16, three of making such indecent photographs (classed as levels 4-5), five further counts of making indecent photographs (levels 1-3), one count of possessing 224 indecent photographs of a child under 16 and one of possessing 84 movies of such a child.

2. There remain counts 1 to 3. Count 1 charged Dyer and Hedgcock with conspiracy to rape a girl below the age of 16. Count 2 charged the same defendants with conspiracy to murder a girl under 16. Count 3 charged Dyer and Mayers with another conspiracy to rape a girl under the age of 16.

3. On 21 June 2006 (the same day as that on which the pleas to the other counts were taken) His Honour Judge Rivlin heard and refused defence applications to dismiss these three counts on the footing that they were not supported by evidence fit to go to a jury. The appellants thereupon entered pleas of not guilty to those three counts. Their trial on counts 1-3 commenced on 20 November 2006. On 23 November 2006 the trial judge heard and rejected submissions of no case to answer. On 1 December 2006 Dyer was convicted on count 1 by a majority of 11:1 and unanimously on count 3. Hedgcock was convicted on count 1 (also by an 11:1 majority) and Mayers was unanimously convicted on count 3. Dyer and Hedgcock were acquitted on count 2.

4. On 5 February 2007 the judge passed sentence. Sentences of imprisonment for public protection were passed in relation to counts 1-3 and determinate sentences on counts 4 to 51. It is unnecessary to say any more about the sentences at this stage.

5. The appellants now appeal against conviction and sentence by leave of the single judge. The conviction appeals relate to the guilty verdicts returned by the jury on counts 1 and 3 on 1 December 2006.

6. The essence of the case overall consisted of conversations between the three appellants over the internet and pornographic images exchanged between them and downloaded from their computers. The evidence relied on by the Crown to prove the two conspiracies to rape (counts 1 and 3) was to be found in the internet conversations. In dealing with the facts we shall concentrate on that material.

7. The relevant facts came to light after the appellant Dyer walked into the Bournemouth Police Station on 3 January 2006 and told the police that he had been accessing child pornography through the internet. He handed over a DVD which contained indecent images of children and logs of internet conversations. He was arrested. His computer and accessories were seized from his home. These materials told the police that Dyer had had internet "chats" and had exchanged child pornography with the other two appellants. The three of them used the following names on the net: Dyer "Dxnproductions", Hedgcock "Pholley" and Mayers "Bobbohere". Hedgcock and Mayers were identified by the police through the computer material. They were interviewed in January and February 2006.

8. The internet conversations which were to be led in evidence fell into two groups. There was a substantial conversation between Dyer and Hedgcock on 28 December 2005 in the course of which they exchanged photographs, including indecent pictures of young girls. Hedgcock sent to Dyer images of his goddaughter and his sister. They were aged 15 and 14 respectively. He introduced them to Dyer over the website as his nieces called Fi and Becca (not their real names). He said that they were aged 13 and 14. These chats on 28 December 2005, to whose detail we will have to return, relate on the Crown case to count 1. The Crown case was that during this conversation Dyer and Hedgcock made an agreement to rape one or both of the "nieces" -- a real agreement actually intended to be carried out. That is critical because the central point for the defence was that at most these chats were evidence of fantasising for sexual gratification.

9. The second group of chats was between Dyer and Mayers. These relate to count 3 (the second rape conspiracy). There are before the court transcripts of conversations on three dates, 23 October 2005, 31 December 2005 and 2 January 2006. Again indecent images were exchanged, although none of the "nieces". The Crown say that on 2 January 2006 (the day before he went to the police station) Dyer told Mayers of the plan to rape the "nieces", to which Mayers then became a party.

10. The grounds of appeal against conviction on behalf of all three appellants first assert that the judge was wrong to reject the submission of no case to answer. At the end of the prosecution evidence it was accepted on behalf of Dyer and Hedgcock (the defendants on count 1) that there was evidence on the transcripts of the chats showing on the face of it an agreement to commit rape. Mayers for his part did not accept that there was evidence to that effect involving him. We need to look at some of the detail in the transcripts, bearing in mind that the principal point upon which emphasis has been laid in the course of argument before us is whether there was evidence fit to go to the jury that any agreement to rape that was apparent on the face of these transcripts was in truth an agreement actually intended to be carried out.

11. We turn to the conversation between Dyer and Hedgcock on 28 December 2005. It is plain from the beginning of the transcript that the parties had been in touch before because Dyer at once asks: "How old are nieces?" Hedgcock answers: "13 and 14". As the chats progress there are certain features which become very clear. First the two men encourage each other into a state of sexual excitement as they exchange messages. Pornographic pictures are from time to time sent down the line. The pictures sent of the "nieces" are not in fact pornographic. The men describe sexual acts which they (especially Dyer) say that they would like to perform. The two men masturbate as they exchange messages. The images they describe in the conversation are largely images of rape and violence. Hedgcock presents himself as eager to offer up his "nieces" for Dyer's pleasure. At page 10 Dyer says:

"How far would you let me go with them?"

Hedgcock replies:

"If I'm honest, if you got your hands on them I wouldn't mind."

In the course of these repulsive exchanges there are passages which, as Dyer and Hedgcock accepted, on the face of it disclose an agreement to commit rape of the "nieces". Indeed they disclose, it would seem, an agreement to murder them. That was the subject of count 2 upon which Dyer and Hedgcock were acquitted by the jury. Passages apparently disclosing an agreement to rape and passages relied on by the Crown as tending to show that this agreement was intended to be carried out include the following. (The transcript is so arranged as to give in each case the computer name being used by the participant in the conversation. We will refer to the real names.)

"DYER: I would really do them for you, no messing. I am not into fantasy.

HEDGCOCK: Hmm, now tell me what you'd do if forced? I have often thought about raping them, or getting someone to rape them and film it. Cool.

DYER: Would need to get them into woods, would have fake gun and threaten to kill them.

HEDGCOCK: They have to walk through woods near where they live to get to school. I've often thought about doing it there.

DYER: No problem, blindfold them.

....

HEDGCOCK: [Referring to one of the 'nieces'] She has amazing legs, she's only 13 but already 5'10.

DYER: Fuck, yes. Just right for raping.

HEDGCOCK: Perfect for brutal rape.

DYER: Whatever. Are woods isolated?

HEDGCOCK: Yes, there's a large stretch of them along a river where they live. Their mum's always telling them not to walk through there alone.

DYER: Prefer this one alone.

HEDGCOCK: Yes. She's the one I've always wanted to do the most as well."

(As that is said, Hedgcock sends a picture.)

"DYER: I would get you to rape her at gunpoint as well. So horny.

HEDGCOCK: Oh, fuck, would you pretend you didn't know me and force me so she knew it was me? But I had to do it cos of the gun?

DYER: Yes.

HEDGCOCK: Oh, fuck.

DYER: And hit her hard, otherwise threaten to kill you both.

HEDGCOCK: Tell her sorry, and smack her across her pretty face.

DYER: I would make you do it hard over and over again.

HEDGCOCK: Would you make me strip?

....

HEDGCOCK: I don't mind what you do to her.

DYER: Really?

HEDGCOCK: Really.

DYER: I can be extreme.

HEDGCOCK: Good.

....

DYER: How bad do you want her hurt?

HEDGCOCK: I don't care.

DYER: Bruises? Scars? Or more?

HEDGCOCK: I'd like to see them hurt in a way I probably couldn't bring myself to do. More. Use a knife.

DYER: You arrange it. I will do it."

(At this point Hedgcock sends three pictures over the net.)

"HEDGCOCK: Little fucking whore.

DYER: She will be. So want to do it now?

HEDGCOCK: Fuck, yes.

DYER: Make sure she wears a skirt.

HEDGCOCK: I don't care what you do, I want them done in like Holley and Jess.

DYER: But more brutal and prefer one at a time.

HEDGCOCK: Yessss.

DYER: Are you just fantasy?

HEDGCOCK: No, I'm fucking not."

The transcript makes it clear that Dyer has just masturbated to ejaculation and continues:

"DYER: Can't wait for real thing.

HEDGCOCK: Good man. What were you thinking of as you came?

DYER: Filling her and beating her.

HEDGCOCK: Mmm, beating her with a metal bar?

DYER: No, my fist.

....

DYER: Shame to mess her face up.

HEDGCOCK: Mmmm. Beat her senseless.

DYER: Whatever. How senseless?

HEDGCOCK: Unconscious, then fuck her awake. Then beat her even harder.

DYER: Fuck her unconscious. Please more pix [presumably asking for pictures to be sent down the line].

HEDGCOCK: Choke the whore.

DYER: How much choke?

HEDGCOCK: Choke her till she dies, while you're raping her.

DYER: You wouldn't want that on your conscience.

HEDGCOCK: That's why I'd get you to do her.

DYER: Okay, no problem. I have no limits.

HEDGCOCK: Me neither.

....

DYER: Would love to strangle her while fucking her.

HEDGCOCK: Fuck, yes. See her pretty eyes bulge.

DYER: Hitting her, beating her, hear her cry.

HEDGCOCK: Her sister, watching, tied up, pissing herself with fear.

DYER: No, one at a time, less room for mistakes.

HEDGCOCK: Good thinking.

DYER: Don't get careless and get caught. Fifteen years no fun.

HEDGCOCK: Strangling her would take ages, plenty of time for fucking.

DYER: Can be quick or make it last as long as need be.

HEDGCOCK: I like to make it last.

DYER: Tie her to a tree.

....

DYER: Whatever you want me to do is yours. Not joking, serious.

HEDGCOCK: Good.

DYER: Sooner the better.

HEDGCOCK: I like you forcing me to do them as well.

DYER: Okay. As I said, one at a time.

HEDGCOCK: Make me suck you off while she watches too.

DYER: You bi [bisexual]?

HEDGCOCK: A bit, yes. That okay?"

(At this point Hedgcock sends a picture.)

"DYER: Would rather beat them.

HEDGCOCK: Okay, that's cool.

DYER: Would you want Fi to live?

HEDGCOCK: No. Fucking tease."

After this there are references to Hedgcock's wife. Then Hedgcock says that he is "wanking really hard" at "the thought of you doing my wife". Yet it was common ground at the trial that Hedgcock had no wife, nor any girlfriend at the time. Towards the end of the "chat" this passage occurs:

"DYER: We could meet in pub? To start with? Public place.

HEDGCOCK: They like alcohol.

DYER: Okay. Whereabouts, if you are serious?

HEDGCOCK: I'm in North London. Where are you?

DYER: South coast, but could meet you in London if you want."

In fact Hedgcock lied when he said he was in North London. He lived in the Twickenham area. The "chat" ends as follows:

"HEDGCOCK: What you doing this Saturday?

DYER: Nothing except coming to London.

HEDGCOCK: Meet us in a pub up in town somewhere?

DYER: Okay, but if you let me down I will be really pissed off. One question I have to ask.

HEDGCOCK: Sure.

DYER: Are you anything to do with police or law enforcement?

HEDGCOCK: No, nothing at all. I'm just an ordinary guy. Nothing to do with the police.

DYER: Okay. I trust you then. Don't get on the wrong side of me.

HEDGCOCK: I won't. I'm just a guy who's obsessed with these girls.

DYER: Okay. Where you want to meet?"

Hedgcock then broke off the conversation. The log shows that after twelve minutes had passed Dyer said: "Hiya. Where you go?" There is nothing else on the transcript.

12. We turn to the "chat" between Dyer and Mayers. No suggestion of murder was put by Dyer to Mayers. Nor were pictures of the "nieces" sent to him, despite his requests, as appears from the transcript. There is nothing of particular significance in either the first "chat" on 23 October 2005 nor in the second on 31 December 2005. The relevant evidence (now going to count 3) is all in the last conversation on 2 January 2006. The passages to which we will refer include those which were to be mentioned by the judge in his "no case" ruling. They include the following:

"DYER: Would you rape?

MAYERS: Yes.

DYER: Really or just fantasy?

MAYERS: No, I would if I had the opportunity and I thought I could get away with it. Why do you ask?

DYER: I know of someone's nieces that he want done in London.

....

MAYERS: Tell me more about these nieces. Would you be up for it?

DYER: I am trying to arrange a meet in London. They have to walk through woods to get to school.

MAYERS: Okay, cool.

....

MAYERS: Can I see them nieces?

DYER: If you want her done.

MAYERS: I want to do her myself first, want to be her first. There will be no DNA, will have to use a blob as she is not on the pill."

(At this point Mayers sends a picture to Dyer.)

"DYER: Who's that?

MAYERS: Just a pic of a site somewhere. Can I see the two nieces?

DYER: Would do your stepdaughter for you while you video.

MAYERS: After I've had her. Okay.

....

MAYERS: Can I see the nieces' one please?

DYER: Shame. If you want to help me rape them????

MAYERS: Yes. I want to.

DYER: When I go to London you can come as well.

MAYERS: Okay, cool. Do you have a plan in mind?

DYER: Yes, but need to discuss with uncle first."

(Again Mayers sends a picture.)

"MAYERS: Okay.

DYER: Too tame for me.

MAYERS: Can I see the niece pic?"

(Again Mayers sends a picture.)

"DYER: Seen it."

We need not cite any more.

13. It was the following day (3 January 2006) that Dyer walked into Bournemouth Police Station. Four of the eight "chats" that he had had with Hedgcock on 28 December 2005 were on the DVD he took with him, as were all the images which Hedgcock had sent to him. He was asked why he had not come to the police station after 28 December. He said that he wanted to deal with a particular officer, DC Dell, who was off over the Christmas period. In interview Dyer accepted that he would be punished for receiving and exchanging pornographic material, which he said he had been doing for some months, but he told the police that he had tried to arrange meetings with Hedgcock and Mayers in order to allow the police to trap them. He had not intended to do any of the things discussed in the chats and had no interest in young children.

14. Hedgcock in interview maintained that throughout the "chats" he had been fantasising for sexual gratification and he said he was ashamed of himself.

15. Mayers on advice declined to answer any questions in interview.

16. At trial Dyer neither gave nor called evidence. Hedgcock repeated that the chats were all fantasy and he called some character evidence. Mayers confessed to an interest in child pornography but said that when Dyer mentioned rape he had gone along with it to keep him on line and to get him to send more images.

17. We turn to the first ground of appeal advanced by all three appellants: that the trial judge should have acceded to the submission of no case. In dealing with this submission the judge had no difficulty in finding that on the face of it the chats disclosed evidence of agreements to commit rape. As we have said, Dyer and Hedgcock conceded as much, though Mayers did not. So far we think the judge was right. But the real issue which the judge had to decide at half time and which is now before us was whether there was evidence fit to go to the jury which proved that these apparent agreements were intended to be carried our rather than sexual fantasy.

18. The judge directed himself (transcript 3C-D) that issues and what inferences were to be drawn from the primary facts are essentially within the jury's province. His ruling concluded as follows:

"I entirely agree that the jury must be told that the evidence against these men must be such that the inference of guilt must be compelling, and indeed that, having heard all of the evidence, it is the only inference they feel able to draw from the facts, which they find to be established if they are to convict, but in the circumstances of this case, that must, in my judgment, be a matter for them. So these submissions are rejected and this case will proceed."

19. There has been some little controversy (at least in the written arguments with which we have been supplied) as to the correct approach to be taken by the jury in a criminal case to an invitation by the Crown to draw an inference adverse to a defendant from primary facts. Here the inference would be the actual intention of the appellants to carry out the agreement to rape. Lord Diplock's observations in Kwan Ping Bong v R[1979] AC 609, 615G were cited to the judge as follows:

"The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling -- one (and the only one) that no reasonable man could fail to draw from the direct facts proved."

That is the test which the trial judge appeared to apply in ruling that there was a case to answer.

20. Sir Alan Green QC for the Crown draws attention, however, in his skeleton argument to the decision in R v Jabber[2006] EWCA Crim 2694 in which the court said:

"20. Read literally, Lord Diplock's dicta might be understood to be saying that an inference was only to be regarded as compelling if all juries, assumed to be composed of those who are reasonable, would be bound to draw such an inference. In short, an inference could only be drawn if no one would dissent from it.

21. We reject that as an approach to be taken by the judge at the close of the prosecution case, even where the evidence is only circumstantial. The correct approach is to ask whether a reasonable jury, properly directed, would be entitled to draw an adverse inference. To draw an adverse inference from a combination of factual circumstances necessarily does involve the rejection of all realistic possibilities consistent with innocence."

We do not consider, with great respect, that there was any real distance between the authorities here. Elementarily the jury must apply the criminal stand of proof to the exercise of drawing inferences as to every other facet of the fact-finding process.

21. The question was whether a reasonable jury properly directed, not least as to the standard of proof, could draw the inference proposed and thus (as it was put in Jabber) reject all realistic possibilities consistent with innocence. That approach it seems to us is entirely consistent with Lord Diplock's remarks. If at the close of the Crown's case the trial judge concludes that a reasonable jury could not reject all realistic explanations that would be consistent with innocence, then it would be his duty to stop the case. What then is the position here?

22. In our judgment the internet "chats" in their particular context were plainly at least as consistent with the rape plots being fantasy as with their being reality. The terms of these internet conversations (perhaps especially those between Dyer and Hedgcock) suggest or may be thought to suggest that they were fantasy only. The parties are making it up as they go along -- encouraging each other into heightened states of sexual excitement. If that is right the probability may be in favour of a fantastical rather than a realistic explanation of what was said. Certainly there is no probability that the realistic explanation is the right one. Such consideration would ordinarily be wholly within the jury's province, but this view (or possible view) of the transcript made all the more pressing the need for an objective rationale if the jury were to find a real conspiracy proved. The position is in our view that it was not possible for a reasonable jury, looking only at the transcript, to exclude the fantasy scenario as being fanciful or unrealistic. There is no inherent probability in these particular circumstances that the apparent agreements were real. It might be otherwise in most (certainly many) other human situations. But these conversations were quite plainly so moved by sexual lust that it could not be said (again looking at the transcripts alone) that reality was any more probable than fantasy.

23. It is therefore necessary to consider other evidence in the case and look to where other objective facts may point. The following points are adaptations of submissions made in Dyer's grounds of appeal. It is submitted that the evidence was insufficient to prove count 1 for various reasons which include these:

(1) Neither of the parties [Dyer and Hedgcock] knew each other's name or address or had any means of further communication, save through the internet chat room.

(2) After the conversation on 28 December 2005, neither party made any attempt to resume contact with the other.

(3) Even on the Crown's case (and emphasis was placed upon this point by counsel this morning) the conspiracy must have ended within five days, otherwise count 3 would have been duplicitous. That is because Mayers, given the conversation with him, would have been joining a pre-existing agreement, namely the count 1 agreement. The latest time when it could be asserted that Hedgcock withdrew was at the end of the conversations with the appellant Dyer, that is on 28 December. So the conspiracy (if such it is) was a fleeting conspiracy which was born and died during the 28th December conversation.

(4) Dyer reported what had been happening to the police on 3 January 2006.

(5) He made no attempt to eradicate, delete or destroy the record of the chat logs or the pictures on his computer. Indeed he had copied the pictures and a significant part of the chat logs onto a disc it would seem for the purpose of taking them to the police.

(6) Hedgcock gave false names for the girls and misdescribed their relationship with him.

(7) Hedgcock lied about where he lived.

(8) Hedgcock fantasised about Dyer raping his wife, although he was not married and had no girlfriend. In fact, he lived with his brother.

(9) The jury acquitted Dyer and Hedgcock of conspiracy to murder (count 2). Murder and mutilation were themes essentially integral to the content of the conversation that went to count 1 (conspiracy to rape).

(10) The possibility of murder was not mentioned to Mayers at all. He was invited on the face of it to take part only in the rape. The inference would appear to be that, certainly so far as the jury were concerned, the murder may have been fantasy on the part of one or other of the defendants. It is very difficult to understand how one part of the conversation could be construed as fantasy and not the other. We hasten to emphasise that there has been no submission that the verdicts are formally inconsistent, but it may be that such a point was not taken. The point is not one formally of inconsistent verdicts, but it is a point that goes to the difficulty of isolating reality from fantasy.

(11) Both parties masturbated during these exchanges. That is important because it tends to show that what they were saying over the line was for immediate effect for the purpose of generating immediate sexual gratification.

(12) When Dyer asked Hedgcock where he wanted to meet, Hedgcock signed off the conversation.

24. There are further points in relation to count 3 which are also as it seems to us well taken:

(1) Neither of the parties (Dyer and Mayers) knew each other's name, address or had any further means of communication, save via the chat line.

(2) No attempt was made by either to contact the other after 2 January 2006 conversation.

(3) Dyer went to the police the following day.

(4) Again, Dyer made no attempt to eradicate the material relevant to his conversation with Mayers from his computer.

25. Sir Alan, in addressing us this morning, has rightly emphasised the problems for the jury as including the finding of fact and the drawing of inferences. He has reminded us of the well-known passage in the decision of this court in R v Galbraith73 Cr App R 124, where the Lord Chief Justice in dealing with the "second limb" said:

"Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that a defendant is guilty, then the judge should allow the matter to be tried by the jury."

Here of course the very question is whether on one possible view of the facts there is here evidence on which to the high criminal standard the jury could find the appellants guilty.

26. In these highly unusual circumstances a reasonable jury could only conclude that the participants actually intended to carry out the agreement to rape if there was some extraneous evidence favouring that interpretation. The discs upon their own can only carry the matter so far. If anything, however, the objective circumstances as we have now described and summarised them point the other way.

27. In all those circumstances we have concluded that the judge ought to have accepted the submission of no case to answer. Accordingly, for the reasons we have given the conviction appeals are good and will be allowed.

28. There are also appeals against sentence. As we understand it, the sentences under appeal were only those passed on the conspiracy counts. We understand there can be no challenge to the sentences passed on counts 4 to 51. Those sentences will stand.

29. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, the appellants were all required to comply with the provisions of Part 2 of the Act (notification to the police) for life. That order will stand.