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IICSA Independent Inquiry into Child Sexual Abuse

Children Outside the United Kingdom Phase 2 Investigation Report

C.3: The regime in practice

The number of section 72 prosecutions

6. Obtaining accurate data on the number of section 72 prosecutions is difficult. National statistics are not collated by the Ministry of Justice, the National Police Chiefs’ Council (NPCC), the Crown Prosecution Service or the Home Office. This is because section 72 does not create an offence itself but is merely an “enabling” provision, permitting prosecutions to be brought in relation to the underlying sexual offences (on which data are kept).[1]

7. The NCA collates data on the use of section 72 but only on those cases where it (rather than a local police force) has been the investigating agency.[2]

NCA investigations

8. Investigations by the NCA have led to seven successful prosecutions in England and Wales under section 72, or its predecessor, between 1997 and 2019.[3]

8.1. Operation Thereva resulted in the successful prosecution of Richard Huckle, a UK national. He pleaded guilty to raping and sexually assaulting 22 children from minority communities in Malaysia and one child in Cambodia. He took images of the sexual abuse and published them on the dark web.[4]

8.2. As a result of Operation Shoran, Keith Morris was sentenced to 18.5 years’ imprisonment for 10 sexual offences against vulnerable children in Kenya, and two counts of attempting to pervert the course of justice.[5]

8.3. Operation Carapax led to the prosecution of Mark Frost (also known as Andrew Tracey), who had a history of sexual offending against children in the UK. In 2013, under a separate operation, he was investigated for sexual abuse in Thailand. He fled prosecution and was later found living in Spain, before being extradited to the UK. In 2016, Frost was charged under section 72 with 22 offences, including sexual abuse of boys between 10 and 14 years of age in Thailand. After joint operations with the Spanish and Dutch authorities, he was charged with a further 67 offences, before pleading guilty to 23 of those charges. He also pleaded guilty to the original 22 counts. Frost was sentenced to 13 terms of life imprisonment.[6]

8.4. Operation Kamas investigated Trevor Monk, who paid nearly £15,000 for the live-streaming of child abuse from the Philippines. He sexually abused a child during one of his visits to the Philippines. In January 2016, he was sentenced to 19.5 years’ imprisonment.[7]

8.5. Operation Acrostic concerned David Graham, who sexually abused children in Cambodia, was extradited from France and then prosecuted in the UK. In May 2013, he pleaded guilty to a charge of sexual activity with a male under 16 years old. He was sentenced to 21 months’ imprisonment, ordered to pay £2,500 and was placed on the sex offenders’ register for 10 years.[8]

8.6. A female British national was charged under section 72 and pleaded guilty to a number of sexual offences against children committed while resident in Cyprus.[9]

8.7. James Alexander admitted one count of arranging or facilitating the commission of a child sex offence, three counts of attempting to cause/incite a girl under 13 to engage in sexual activity, and one count of making an indecent image of a child. He had sent at least 15 money transfers to abuse facilitators in the Philippines between August 2017 and June 2018 and tried over Skype and WhatsApp to arrange to travel to the Philippines to abuse girls himself. In May 2019 he was sentenced to five years’ imprisonment and was placed on the sex offenders’ register for life. A sexual harm prevention order (SHPO) was made, banning him from any foreign travel.

9. At the time of the Inquiry’s public hearings in February 2019, the NCA told us that its current investigations included six cases where it was considering referring the case to the Crown Prosecution Service for a possible prosecution under section 72, and three cases in which the Crown Prosecution Service was considering prosecution under section 72.[10]

Local police force investigations

10. Although local police forces may conduct international investigations leading to the potential use of section 72, Chief Constable Michelle Skeer of Cumbria Constabulary, NPCC lead for the management of sexual offenders and violent offenders, considered that the number of occasions on which this had happened was “very low”.[11]

11. The Inquiry selected six police forces from which to obtain evidence, in order to understand the frequency of use of section 72.

11.1. Hertfordshire Constabulary has not used section 72 to prosecute offences committed outside the UK.[12]

11.2. South Yorkshire Police does not record the use of section 72 in an extractable form.[13]

11.3. Gwent Police does not record the use of section 72.[14]

11.4. West Midlands Police does not hold data on the number of offenders prosecuted using section 72, as it explained there is no requirement or mechanism to do so. It described one case from 2015, where officers referred evidence to the Crown Prosecution Service but the case did not proceed. The officers were advised that section 72 could not be used because the accused had not been a UK national or resident at the time the offence was committed.[15]

11.5. Staffordshire Police stated that data extraction on the use of section 72 was not possible, and no anecdotal information was available.[16]

11.6. Lancashire Constabulary is not currently able to retrieve information on the use of section 72, but it manually checked 6,700 crime records and found that none resulted in a charge under section 72.[17]

Unsuccessful section 72 cases

12. Patrick Matthews was prosecuted at Bristol Crown Court in 2010 for alleged child sexual abuse offences in India. As a result of delays in making formal requests for witnesses to give evidence via video-link, the trial could not proceed and the trial judge was critical of the conduct of the prosecution. Following an internal review, the Crown Prosecution Service acknowledged that mistakes had been made with respect to a lack of case progression and its understanding of the difficulties of mounting a complex prosecution involving victims and witnesses from abroad without specialist assistance from its Complex Casework Unit. Further national and local guidance was given to prosecutors as a result of the review.[18]

13. The case of Douglas Slade was also cited to us as an example of the failure to prosecute in the UK for crimes committed in the Philippines. In the 1970s, Slade’s association with groups such as the Paedophile Information Exchange (considered in our investigation concerning allegations of child sexual abuse committed by persons of public prominence associated with Westminster[19]) led to him being named in the press. Father Shay Cullen of the People’s Recovery, Empowerment and Development Assistance (PREDA) Foundation, based in the Philippines, became aware of him in the 1990s after Slade took up residence in the Philippines and was accused of sexually abusing boys. Following a trial in the Philippines, he was acquitted of alleged sexual offences against children between 1995 and 2004, although he was caught on film in 2014 admitting to escaping conviction by bribery. Father Cullen emphasised that, despite Slade being well known to the British authorities, no attempts were made to notify the Philippine authorities of the risk he posed. He also suggested that the UK authorities’ attempt to extradite Slade was unsuccessful in the absence of an extradition treaty with the Philippines. Slade returned voluntarily to the UK and was arrested at Heathrow Airport, then convicted in 2016 of sexual offences against children in the UK between 1965 and 1980.[20]

Difficulties with section 72

14. A number of difficulties with section 72 and its effectiveness have been identified by non-governmental organisations (NGOs) and our investigation.

The extent of its use and comparison with other jurisdictions

15. ECPAT (Every Child Protected Against Trafficking), Child Redress International (CRI) and Glen Hulley of Project Karma expressed concern that section 72 is used less frequently in England and Wales than comparable powers in other countries.[21]

16. The NCA does not consider that there is under-utilisation of section 72. The NCA says that section 72 is just one of a range of interventions that can be used to manage the risk of child sexual abuse overseas. In every case, its focus is first on trying to safeguard the victim and then on considering a range of tactical options to bring the suspect to justice and mitigate the risk that they pose.[22]

17. The above data suggest that between 1997 and 2018 there were seven concluded prosecutions under section 72 in England and Wales, a rate of 0.33 prosecutions per year.[23]

18. We were able to carry out some comparison between the use of section 72 in England and Wales and the use of extra-territoriality provisions in two other jurisdictions.

19. Between 2003 and June 2018, federal prosecutors in the USA brought at least 68 prosecutions for child sexual abuse overseas under its extra-territoriality provisions.[24] This suggests an extraterritorial prosecution rate in the USA of around 4.5 prosecutions per year, over 10 times higher than the rate in England and Wales. However, the population in the USA is 5.7 times larger than that of England and Wales,[25] so the disparity in the use of extra-territorial powers in the USA is not as great as the numbers suggest. The levels of resources also differ.

20. Between 1994 and 2006, Australian authorities convicted 14 individuals under their extra-territorial powers and charged an additional 24 people.[26] Given that the population of Australia is smaller than England and Wales,[27] this suggests a proportionately greater use of the powers by the Australian authorities. The reasons for this are not clear.

The ‘first country first’ principle

21. According to the ‘first country first’ principle, prosecution should first be considered in the country where the offending takes place. Local prosecutions can minimise distress to children and avoid their having to give evidence in foreign courts. They also ensure that abuse is highlighted in the country in which it takes place.

22. While this may be an appropriate principle, there are several factors which may make it ineffective in practice in relation to UK nationals or residents who have abused children.

22.1. The act in question may not be a criminal offence in the country in which it occurs. In such cases, a section 72 prosecution could fill an important gap.[28]

22.2. It has been said that law enforcement is at different stages of development around the world. For example, in some countries police officers do not have the skills and experience or resources compared to UK police forces.[29]

22.3. Investigations may be complicated by victims being unwilling to speak out due to the fear of social stigma or being pressurised to keep quiet. Threats may also be made to prosecutors and judges in some jurisdictions.[30]

22.4. Bribery and corruption may reduce the chances of a prosecution. Local officials may encourage families and victims to accept out-of-court settlements.[31]

An approach of ‘last resort’?

23. In recent years, an understanding has developed that section 72 is only to be used as a ‘last resort’.[32]

24. The relevant agencies denied the existence of such an understanding.[33] However, this approach is clear from the NCA’s February 2018 guidance to its ILOs, which states:

Encourage the host country to initiate their own investigations and prosecution against British nationals who commit CSEA[34] offences in their host country. Section 72 allows UK individuals who offend overseas to be prosecuted in the UK. However, this should be seen as the last resort or in extremis option due to the complex and resource-intensive nature of these operations.[35]

The Foreign and Commonwealth Office (FCO) pre-2019 guidance to its staff was also discouraging, stating that prosecutions under section 72 are “rare due to logistical and diplomatic issues.[36]

Complex and resource-intensive investigations

25. Although section 72 is a relatively straightforward jurisdictional provision, investigations abroad are usually complex. Planning, resources and time are required, as well as collaboration between British and local law enforcement agencies. Factors that limit the effectiveness of the ‘first country first’ principle also often apply.

26. In successful section 72 prosecutions, the investigative support provided by the NCA to overseas law enforcement agencies has been high.

26.1. In Operation Shoran (which led to the prosecution of Keith Morris), the NCA used over 25 officers and staff, including investigators and child protection advisers working in Kenya and the UK, to facilitate the investigation and trial.[37]

26.2. For Operation Carapax (which led to the prosecution of Mark Frost), an operational team of specialist NCA officers, child protection officers and a Crown Prosecution Service prosecutor travelled to Thailand to assist the Thai authorities.[38]

26.3. Operation Acrostic (which led to the prosecution of David Graham) was an investigation involving the NCA’s Child Exploitation and Online Protection Command (NCA-CEOP), the Serious Organised Crime Agency, the Cambodian national police and the NGO Action Pour Les Enfants (APLE).[39]

The number of ‘boots on the ground’

27. The UK’s investigative capacity overseas is largely made up of the NCA’s network of 140 ILOs located in countries such as Thailand, the Philippines,[40] Hong Kong, India, Vietnam and Australia. ILOs are given extensive training, including on local law enforcement, before they are deployed. Where there are gaps in the UK’s coverage on the ground, the NCA is assisted by others in the ‘Five Eyes’ partnership,[41] which involves intelligence-sharing between the UK, USA, Australia, Canada and New Zealand.[42]

28. However, the Inquiry heard evidence from a range of witnesses to the effect that the UK does not have enough “boots on the ground[43] to support effective investigations and prosecutions. The UK is perceived by some to offer less support to local law enforcement than other countries, such as the USA. The practical benefits of “in country” support were also emphasised.[44] It was also suggested that UK representatives overseas were slower to respond to allegations of child sexual abuse than, for example, their Norwegian, Belgian or German counterparts.[45]

29. The NCA keeps its network of ILOs under review, based on the intelligence it receives. The number of ILOs needs to be proportionate to requirements, and the NCA’s view was that increasing the number of ILOs alone would not deal with the complexity of the issues.[46]

Joint working and the overall UK ‘presence’ overseas

30. UK law enforcement agencies cannot act as a police force in another country. As a result, effective international cooperation through intelligence-sharing and/or the building of strong relationships with local law enforcement agencies are necessary.[47]

31. The Inquiry heard some examples of good practice. Specific bilateral agreements have led to positive joint working between the USA authorities and those in the Philippines. Similarly, there are collaborative relationships between the USA and Australian authorities and various other local law enforcement agencies.[48]

32. Christine Beddoe considered that the UK does not “have a particularly well-framed approach to investigating and prosecuting this crime of British nationals who travel abroad”. By contrast, she considered that the Swedish, American, Australian and Canadian models were “more well defined and therefore potentially more successful at being able to bring prosecutions under their extra-territorial powers”.[49]

33. However, Robert Jones of the NCA disagreed with Ms Beddoe’s assessment. He considered that the UK played a very visible role in relation to law enforcement leadership overseas. He noted that in the recent Out of the Shadows report, prepared by The Economist Intelligence Unit, with support from several child-focussed organisations, the UK was recently placed first out of 40 developed countries in terms of its global efforts in relation to child sexual abuse.[50]

Knowledge within police forces of section 72

34. The NPCC considered that there was awareness of the use and operation of section 72 within police forces, particularly within specialist management of sexual and violent offenders teams.[51]

35. However, of the six police forces from which the Inquiry obtained evidence, only two considered that there was an appropriate level of understanding within their forces of section 72.[52] The remaining four considered that awareness was limited, and some acknowledged that improvements to training were needed.[53]

Coordinated leadership

36. Several witnesses considered that there was a lack of coordinated leadership around section 72 prosecutions.

36.1. Professor Warren Binford, a Trustee of CRI, said there was a “crisis of leadership” and that a number of institutions (by which we assume she meant the Home Office, the NCA, the Crown Prosecution Service and the Ministry of Justice) did not consider themselves as having direct responsibility for section 72, but rather being in a support role.[54]

36.2. Bharti Patel, Chief Executive Officer of ECPAT UK, shared the concern that no one was accepting overall responsibility for what are “interconnected extra-territorial offences”. She felt that, as a result, issues were “falling between the cracks”.[55] She argued in favour of more progressive and stronger leadership at ministerial level.[56]

36.3. Ms Beddoe understood that, in the 2000s, the Home Office had taken over matters regarding extra-territoriality from the FCO. She considered that this led to a loss of focus and a “downgrading [of] the implementation of the UK’s international obligations on the rights of children”.[57]

37. However, the Home Office’s position is that there has been and there is strong leadership on this issue. It referred to recent policy statements and commitments given by the Home Secretary.[58] Mr Peter Jones, Chief Operating Officer of the FCO, did not agree that the FCO had historically been the lead agency in this field. The drugs and international crime department in the FCO, which dealt with some of these issues, no longer exists.[59]

References

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