Sexual communication with a child offences most commonly occur online, but could be committed in other ways, such as by letter or telephone. In the vast majority of cases there is no child involved at all and the communication is actually with an adult posing as a child. In these cases, it is still possible to be charged with attempting to engage in sexual communication with a child.

This guide explains the law in England and Wales, the evidence that commonly arises and how a solicitor can help from the first police approach through to trial or sentence.

What does the law prohibit?

Section 15A of the Sexual Offences Act 2003 criminalises over 18’s who engage in sexual communication with children who are under 16 years of age. To prove the cases, the prosecution must show that the adult’s purpose was sexual gratification, that the communication was sexual and both that the child was under 16, and that the adult did not reasonably believe the child to be over 16.

We can therefore say that the act that must be proven is that an adult engaged in sexual communication with a child under 16. We can also say that the mental element of the offence is that the adult intended to communicate with the child and that he had no reasonable belief that the child was over 16.

You should note that communication that is not itself sexual but that is intended to persuade the child to engage in sexual communication is also criminalised by this legislation.

The provision has its own definition of sexual communication. It covers communications which relate, in any part, to sexual activity, and communications which a reasonable person would consider sexual in all the circumstances, regardless of any person’s purpose. Sexual activity is also assessed by reference to what a reasonable person would consider sexual in the circumstances.

What must the prosecution prove?

Who sent the communication?

The prosecution must establish that the defendant was responsible for the communication. An account name, profile photograph or telephone subscription may help identify a user, but these should be considered alongside the other evidence. Shared devices, access by other people and compromised accounts require investigation where there is a proper factual basis for raising them.

The communication with the child must also have been intentional. Thus a sexual message sent accidentally to a child will not be an offence. Whether an explanation is credible depends on the surrounding evidence, including the messages immediately before and afterwards.

The sender’s purpose

The prosecution must prove a purpose of obtaining sexual gratification. It may ask the court to infer that purpose from the words used, requests made, material exchanged and the pattern of contact. It does not need an admission that the sender was sexually aroused, or proof that gratification was actually obtained.

A genuine medical, educational or safeguarding conversation may involve sexual subjects and discussions of sexual acts without that purpose. We would suggest that some evidence of the innocent purpose of the conversation should be proffered to the court to maximise the defence case – absent obvious context or evidence the court is likely to see such assertions as self-serving. To this end, we would want to see all the messages in context rather than just a few isolated messages.

The ages of those involved

The defendant must have been at least 18 and the recipient 15 or younger at the time of the exchange. The prosecution must also prove that the defendant did not reasonably believe the recipient was 16 or over.

Many of these cases arise from the work of self-appointed ‘paedophile hunters’ who frequently lack training and are acting on their own initiative. This can lead to evidential issues that need to be resolved, in particular whether all of the conversations have been property retained and whether material actually shows the defendant should have known he was communicating with a child. For example, in one case we dealt with a paedophile hunter sent a photograph of herself that she claimed to have edited to make herself appear younger to the man – it was nonetheless a photograph of a woman in her mid-30s and was not sufficient to prove that the defendant did not reasonably suspect that the person with whom he was communicating was under 16.

Someone under 18 cannot commit this offence. That does not mean all sexual messaging by younger people is lawful: other offences may apply, particularly where images are involved. Similarly, although section 15A concerns recipients under 16, separate laws can protect 16- and 17-year-olds, including offences involving indecent images and abuse of a position of trust.

Does apparent consent provide a defence?

The child’s willingness to participate does not provide a defence. Nor does it matter that the child initiated a conversation or introduced sexual subjects.

Those circumstances may still form part of the evidence about what was said, the sender’s understanding and their purpose. But they should not be confused with a legal entitlement to engage in sexual communication with a child. The focus remains on whether the statutory requirements are established.

What if the account was operated by an adult decoy?

Some investigations begin with messages to an account operated by an undercover officer or a private group of ‘paedophile hunters’. The account may describe a fictitious child and use photographs intended to persuade the adult that they are speaking to a child.

Because there is no actual child recipient, it is not possible to commit the offence, but you can still be guilty of an attempt to engage in sexual communication with a child. Under the Criminal Attempts Act 1981, an attempt requires the intention to commit the crime being attempted and actions that go beyond merely preparing to commit the crime, thus if an adult communicates with somebody they believe to be a child then they are likely to be guilty of an attempted offence.

The defendant’s understanding of the situation is therefore central. A claim that they knew the account belonged to an adult needs to be examined against the entire exchange and any supporting material.

The involvement of a private, non-state sanctioned, group does not automatically prevent a prosecution taking place or render evidence from the group inadmissible. A solicitor should examine how the account was operated, how messages were obtained, whether the record is complete and whether there are grounds for excluding some or all of the evidence produced by the group.

What evidence should be examined?

The full conversation

Screenshots can be important evidence, but selected extracts may not explain the complete exchange. Relevant questions include whether messages are missing, whether dates and account details are visible, and whether the sequence is clear. Earlier discussions about age or the purpose of contact may be particularly significant.

We frequently see cases involving communications where the police have relied on the material given to them and have made no attempt to secure the complete communication records. This can lead to gaps in the evidence. Defence solicitors should be alert to this happening and take steps to seek relevant material which may undermine the prosecution case or assist the defendant. Where a private group supplied the evidence, this may include original chat records and information about the operation of the account. The request should identify why the material matters to a live issue in the case.

Devices and account records

Device examinations may help establish who used an account, when communications occurred and whether records match the screenshots relied upon. A digital forensic expert can be useful where there is a real dispute about attribution, completeness or the interpretation of technical findings.

Deleted messages are not necessarily irretrievable: the recipient or a service provider may retain material, and a device examination may recover traces. Preserve existing devices and records still in your possession, and obtain advice before taking steps which could change or destroy evidence.

Evidence about age and purpose

The profile and images actually seen by the sender may matter more than an account’s appearance at a later date. Keep a clear record of when age was discussed and whether the account changed. A solicitor can identify the appropriate way to preserve and obtain this material.

Evidence about purpose may extend beyond the disputed messages. It could include a genuine professional role, the context of a safeguarding discussion or other contemporaneous communications. Any explanation should be tested against the full record, including material which appears inconsistent with it.

What should you do if the police contact you?

Obtain advice before attending a voluntary police interview. Attending voluntarily does not mean the allegation is minor or that the police are not taking it seriously. Your solicitor can ask what is alleged, seek available information from the police and advise you on the appropriate interview approach. The police will not provide this information to you if you are not legally represented.

There is no single correct approach for every case. Whether to answer questions, provide a prepared statement or exercise the right to silence depends on the evidence, your instructions and the legal consequences. Take a look at our blog post about what happens at a police station, which has useful information about the options available to people being interviewed.

Do not attempt to contact the complaint whether you know them in real life or not. An allegation has already been made to the police and nothing good can come from resuming contact in those circumstances.

Investigators may examine phones, computers and online records. An investigation can continue after release from custody, whether on bail or under investigation. Your solicitor can seek updates, identify outstanding enquiries and make representations where evidence supports a decision not to charge.

What happens if the case reaches court?

Sexual communication with a child is an either-way offence, meaning it can be tried in the magistrates’ court or Crown Court. Other charges brought alongside it may also affect where the case is heard.

If the allegation is denied, preparation should focus on dealing with evidence presented by the prosecution and obtaining any evidence that will support the defence case. Although it is for the prosecution to prove guilt, it is wise for a defendant to be prepared with any evidence that can be brought to make his case to the jury.

Where a guilty plea is appropriate, mitigation should address exactly what conduct is admitted, any disputed facts and any personal circumstances relevant to you and your situation. It may be advisable to obtain independent evidence to prove any points you wish to make to the sentencing judge.

What sentence can the court impose?

The maximum sentence is two years’ imprisonment. The Sentencing Council guideline gives an offence range from a community order to two years’ custody. It assesses harm and culpability before considering other relevant factors.

The court will assess the seriousness of the offending by looking at any psychological harm caused to the victim, abuse of trust, whether there were attempts to obtain sexual images of the child and so on. Previous convictions, mitigation and credit for a guilty plea also matter. A community order addressing offending behaviour may be appropriate where there is a sufficient prospect of rehabilitation; imprisonment is not automatic but there is a high risk in many cases, especially where there have been suggestions of meeting or attempts to persuade the child to provide images of themself.

In an attempted offence involving a fictitious child, the absence of actual harm does not make the conduct harmless for sentencing purposes. The guideline directs the court to consider the intended conduct and allows an adjustment for the lack of actual harm. Usually that reduction is small, and there is usually no additional reduction merely because the offence was an attempt.

Notification requirements and protective orders

A conviction for engaging in sexual communication with a child triggers the sex offender notification requirements under Part 2 and Schedule 3 of the Sexual Offences Act 2003. These are often described as being on the sex offenders register. They include duties to provide specified information to the police and to keep relevant details up to date.

The court may also consider a sexual harm prevention order. This is a separate protective measure, subject to a statutory test of necessity. Proposed restrictions, including those concerning internet use or contact with children are common, although they can be opposed in some cases.

The length of these requirements often depends on the seriousness of the offending and the sentencing imposed by the court.

How Chetwode can help

We can advise before interview, analyse the communications and challenge the prosecution’s interpretation where the evidence supports doing so. This includes identifying missing material, examining disputes about account use or age, and obtaining expert assistance where it would help resolve a specific issue.

If proceedings follow, we can prepare the defence and advise on trial, plea and sentence. Where sentencing is required, we can present evidence about personal circumstances, risk and realistic rehabilitation arrangements, as well as make representations about proposed protective orders. Clear preparation matters at every stage, including where the allegation arises from an adult decoy operation.

Frequently asked questions

Can one message be enough?

Yes. There is no requirement for multiple sexual messages to be sent. If the prosecution can satisfy the court that a single sexual message was sent to a child by an adult then the offence is made out.

What if no meeting was arranged?

This is relevant to sentencing, but does not affect guilt or otherwise.

Does deleting an account end the investigation?

No. Messages and other records may exist elsewhere. Do not delete material to try to prevent an investigation. Obtain advice about preserving relevant evidence and responding properly to police enquiries.

Next steps

If you are being investigated or have been charged with sexual communication with a child, contact Chetwode Criminal Defence Solicitors for confidential advice. We can explain the allegation, assess the evidence and help you decide how to respond.