202501950 A5 - [2025] EWCA Crim 1047

The Court had a report from Dr Emilie Smithson, a clinical psychologist. She considered that the Offender would amply meet the criteria for a diagnostic assessment of autism. She traced the impact of various familial events on his neurodevelopmental disorder, including his parents’ separation, challenging behaviour by his older sibling, feelings of loneliness and isolation and, approaching the time of the offending, struggling with his sexuality at a time when he was experiencing little social support. She noted his acceptance that he had a sexual interest in children for some time before the offending with which we are concerned.

Addressing the motivation for the Offender’s offending and the Offender’s understanding of the charges he faced, Dr Smithson wrote:

“6.59

[The Offender] spoke with some detail about the factors contributing to the offending, explaining “I met people online, I was just talking, I feel like they were older, they were older, they found out [about V] and started asking me to do stuff.”

6.60

Due to having expressed a preference for written rather than verbal communication, [the Offender] was given the option of providing the author with responses by message. He subsequently wrote “I would like to say how desperately sorry I am for taking those pictures I feel so ashamed for it when I was younger, I was so vulnerable and scared and lonely I didn’t belong anywhere I thought the men that were messaging me were my friends I trusted them. After I took the pictures and sent them, I was so upset I cried and panicked but I was so afraid of the men finding me and hurting me. I never wanted to upset [V] and I’m so sorry I have and now lost her I’m so sorry for the upset I’ve caused all my family I never wanted to, and it breaks my heart. I will never do anything wrong like that again I just really want to work hard in my job and make everyone proud.”

In Dr Smithson’s opinion, the Offender would be vulnerable to exploitation by others and, referring to the information that others had said that he “owed them”, that he would be unlikely to have the social skills to recognise their “nefarious intent for their own gain”, that he was unlikely to have been able to form an appropriate judgment when those he considers friends suggested that the behaviour was “ok” and would easily acquiesce. She suggested that the volume of images he was receiving would suggest to him that this was commonplace and tolerated because “the people assured me that I wouldn’t get into trouble and because it was happening in private.”

In two important paragraphs, Dr Smithson said:

8.14

From [the Offender’s] statement, his primary motivation for the offending behaviour was not the molestation of the victim for sexual gratification, but that this was initially a means to make and maintain social acceptability “people would say that I ‘owed them’ because they had sent things to me and I wouldn’t send anything back…I was hoping that if I sent things back they would accept and like me more” and that this hereafter became perpetuated by fear of repercussion.

8.15

[The Offender] indicates an understanding of the law, stating “I knew what was happening was wrong and I didn’t know how it would ever come to an end as I couldn’t seem to stop myself or indeed stop talking to my ‘friends’ online.”

Her view on the influence of his mental health and social difficulties were:

“8.18

Based on the information available, it would suggest that factors influencing [the Offender’s] offending could be understood as social in nature; that is, a naïve understanding of legal issues, poor social support and a lack of connectedness with others, and vulnerability to exploitation and influence.”

Later she reiterated that “the Offender’s poor interpersonal skills and personal vulnerability were a factor in his offending” (para 8.24, emphasis added) and that “the information available suggests that [the Offender] was victim to online pressure from likely older individuals to share indecent images of himself online” (para 8.26).

Addressing potential outcomes, Dr Smithson said:

“8.27

… Were [the Offender] to be given a custodial sentence, it is important to consider the likelihood that this would dysregulate [the Offender’s] emotional wellbeing and- due to his poor self-awareness and self-regulation strategies- has the potential to lead to social withdrawal, depressed mood, and suicidality.

8.28

Due to [the Offender’s] poor social communication abilities, he is less likely to verbalise his difficulties to others and may instead become withdrawn from others. Therefore, it is imperative that [the Offender] be monitored for signs of deterioration. Consideration should be given to allocating [the Offender] a key member of staff each shift who would check as to [the Offender’s] wellbeing. It is suggested that staff initiate such conversations as – due to [the Offender’s] difficulties- it is unlikely that he would articulate his problems independently.”

Dr Smithson’s report provides powerful support for the proposition that his condition and social difficulties rendered him vulnerable to exploitation by others, and that such exploitation was a factor that contributed to his offending. To that extent she supports and inference that his culpability was reduced; but her evidence does not support (and does not purport to support) a proposition or finding that his culpability and responsibility were entirely eliminated.