Why was Doug Richard acquitted?

Why was Doug Richard acquitted?

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Photo from the BBC

Introduction

The short answer is that it is because he was innocent of course. But without going behind that in any way, we wanted to have a bit more of a look at it.

There appears to have been a bit of misinformation in the papers and on social media as to what the charges were, and what the defence was, so we thought we’d have a look. For example, the normally sensible Gavin Shuker wrote this article for the New Statesmen suggesting that “there is a loophole in our legislation that allows men to purchase girls as young as thirteen each and every day, knowing full well they will virtually never be charged; and if charged, they’re unlikely to see court.

He also said that the jury held “that he had a “reasonable belief” that she was over eighteen.

Is that correct?

If you don’t know what we’re talking about with this case, then the BBC story is here.

 

Facts

Doug Richard is an American businessman, now resident in the UK. His case got in the papers due to his being a former member of the Dragons’ Den team.

He faced three allegations; sexual activity with a child, causing a child to engage in sexual activity, and paying for sexual services of a child.

This came about as a result of his using ‘Seeking Arrangements’ – a ‘sugar daddy’ website. After making contact with a girl, he exchanged messages and “went on to act out his fantasies when she travelled from her home in Norwich to London to meet him“.

Mr Richard put £240 into a PayPal account for the girl (who is anonymous). She later attended his flat in London with another 15 year old girl (also anonymous). The younger girl was, however, 13 which was what was to land him in Court.

In his flat they ‘engaged in a sex act’ as the media reports have it. After that, Mr Richard gave them £60 each and they left.

 

What happened at the trial?

It seems, though it is not clear, that the younger girl did not give evidence. The older one did though. There was a dispute as to exactly what happened, but Mr Richard accepted that some sexual activity took place.

He did say, however, that he thought the girl was 17 and “insisted he would never “knowingly” have sex with a child“.

By his acquittal, the jury must have accepted this.

 

What’s the law?

Obviously it was the case that all activity was factually consensual, if that is not the case then very different considerations apply.

The offences of sexual activity with a child, and causing a child to engage in sexual activity, are contrary to ss9 and 10 Sexual Offences Act 2003.

The age of consent here is 16, but the law does provide a defence if the girl is aged between 13 and 16 if the man reasonably believes that the girl is aged 16 and over.

So far so good. There has been talk on twitter of statutory rape which, although it is an American concept, is similar to the position in English law. Here, the jury accepted what Mr Richards said in that he believed the girl to be 17, and no reason to believe otherwise. Hence his acquittal.

The third offence is slightly different. It is contrary to s47 Sexual Offences Act 2003. It reads as follows:

(1) A person (A) commits an offence if—

    (a) he intentionally obtains for himself the sexual services of    another person (B),

    (b) before obtaining those services, he has made or promised  payment for those services to B or a third person, or knows that another person has made or promised such a payment, and

    (c) either—

       (i) B is under 18, and A does not reasonably believe that B is 18 or over, or

       (ii) B is under 13.

(2) In this section, “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.

Here, the girl was under 18, but not under 13. However, Mr Richards said that he thought she was 17. This is fine for the other offences, but the age of consent for this offence is 18 – how was he acquitted?

It wasn’t mentioned in the press, but it would appear to be around the issue of whether there was ‘payment‘.

Looking above at the money that passed hands, the cash afterwards would not be ‘payment‘ as it was made after the sexual activity (this is before looking at the question of whether it was a gift or payment).

As to the money paid in to the PayPal account prior to the activity,  Mr Richard said that it was for the girl’s travel. It would appear that this give rise to an interesting question as to the definition in s47(2).

We don’t know how the Judge resolved this, it would presumably would have been a question for the jury. But in any event the money has to be payment for the sexual services. Travel to the location would not, on the face if it, be covered by this.

This would appear to be the reason why, given that he believed the girl to be 17, he was still not guilty of the offence charged.

 

Is there a problem with the law?

Not really. Leaving aside that the issue does not appear to have been Mr Richard’s belief that the girl was 18, the law certainly does not allow “men to purchase girls as young as thirteen each and every day, knowing full well they will virtually never be charged; and if charged, they’re unlikely to see court” (as this case itself shows).

Mr Shuker goes on to say that it is “illegal to pay for sex with someone under the age of eighteen. But those bought between the ages of thirteen and seventeen inhabit a special kind of legal limbo; protected in statute but not by the state – because the defence of reasonable belief exists.

In practice, this defence is almost always sufficient to avoid charge or conviction“.
It is hard to see how this is a ‘legal limbo’ – it is consistent with all the other offences. Given how seriously the law treats sexual offences, it gives a defence to those who, according to what they believe and importantly what they were reasonable in believing, were not breaking the law.
Even if the CPS are unwilling to charge (and it is hard to see the evidence for that) it does not mean that someone who pays for sex with a 13 year old can do so with impunity. Remember, it will only be a defence if they believe that she is 18 and the jury think that that belief is reasonable.
There is no evidence to suggest that simply saying ‘oh I thought she was 18‘ is going to fly in most cases (and to say otherwise is probably not the best message to send you to would be abusers).
On a side note, sometimes the CPS do not charge cases, and something they are right not to do so. On the face of it, it would appear that the 15 year old girl was a friend of the younger girl, and would therefore have been aware of her age.
By coming with her on the train to Mr Richard’s flat, she would appear to have been ‘facilitating’ the ‘child prostitution’. On that basis, she would be guilty of the more serious offence of facilitating (s50 Sexual Offences Act 2003). We don’t know of course, as we don’t have the full details, but even if that were the case, it would clearly not be the case that she should be prosecuted.
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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

32 COMMENTS

  1. It seems to me a lot of these laws, that centre around sex offences and rape, are made by men with the intention of giving themselves a get out clause of some sorr either for their paedo kink or their complete inability to not rape. The cognitive dissonance of wanting sex with a child while at the same time knowing it for the utter abhorrence it is, means the only way for a man who thinks like that to resolve such conflict is to argue that he believed her to be older. Thus he get his cake (the child) and makes doing so look like a misunderstanding – whoops silly me (and eats it too) rather than intentional.

  2. And on a separate point if I help myself to money out of a cash register and then argue passionately that I reasonably believed the owner would not object or that I reasonably did not believe I was doing anything wrong would that get me off a theft charge? If not why does such a defence work in rape and sex offences?

  3. And on the other point, I think that that is reading too much into it. We have an age of consent – 16 (apart from certain situations when it’s 18), but recognise that before we convict someone of some of the most serious offences imaginable, we have to be sure that they are guilty.

    Do I think a 50 year old man should be having sex with a 16 year old? No, I don’t. But it’s not illegal.

    • Let me ask you something do you believe a 13 year old child once she (or he) opens his mouth could convince you for any length of time that they were sixteen or older?

        • I think that this exchange raises the question that I have as to whether the non-checking of age was reckless or not. This word has not been reported as far as I know, but the consequences for not checking or getting it wrong are many many times more serious than, say, a city centre pub checking a drinker’s age. Is it not reckless to have sex with a young person and not take any steps at all to check age? If you do, do you really have a ‘reasonable belief’?

  4. As a mother of teenager I am utterly disgusted with this case. If this is legal then something is seriously disgusting about our law. This man is taking advantage of a child a stupid teenager who has no idea of the damage she has done to her life but the man is fully aware of what he is doing to this child. This man has three children himself so to declare that a) he cannot tell from the look or the way the child speaks and not figure out that this child is underage is beyond reasonable (yet the law chooses to take his words at face value therefore the law is designed for the criminal not to protect the victim.) b) to never check the age of the child also shows his recklessness yet the law believes him and in some way put the blame completely on the child. c) the payment issue is even more ludicrous. if there was not a payment I don’t know what is but again a kept woman is not a kept woman if the sugar daddy just gives her pocket money for Haribo! Be it £500 for Haribo! Honestly if this is the law I am glad my child does not choose this profession because it is not designed to protect woman, children and it will merely encourage men to behave recklessly. Our society is saying one thing but doing something else. To acquit this guy it’s like saying so long as you are reckless you do not check the age of the child, you give money after but not before, you forgot to wear your glasses so you cannot see and therefore you believe the child to be 17 oh… so sorry you are not guilty we must have made a mistake. What a naughty child ! The wisdom of a 13 year old vs the wisdom of a 57 year old and the law side with the 57 year old. This is a disgusting world and frankly we should not be surprised there are so much child abuse in our society. And if we are honest as human being we should condemn this behaviour instead of trying to find things to reason to justify that it is wrong but not illegal. If we don’t play with words plain and simple it is wrong and illegal. But I am not a lawyer so I must be wrong.

    • I agree with much of what you’ve said and in particular the mixed messages that says sex with a child is illegal except… then a whole list of possible reasons why it is defensible and therefore a get out of jail free card. Like yoursef why does it matter whether the payment was made to the child before or after the offence when the focus should be that a payment was made at all. And finally as you’ve said the law appears to centre and protect the perpetrator rather than the victim. It also demonstrates to me that even here in 2016, when things like this happen, that I understand why the victims in historical sexual abuse cases did not come forward and or when they did no action was taken against the powerful men involved.

  5. Isn’t the issue what steps did he take to ascertain her age to ground that (reasonable) belief?

    Don’t you have school in the morning?

    Does your mother know you’re out?

    Who knows. Maybe they drank at a pub & she got served with no problem.

    I wasn’t at the trial, so no doubt the jury heard evidence which in their view established such reasonable belief.

    Also, surely the issue is that the Prosecution didn’t prove its case. Talking about innocence only serves, in my submission, to confuse the test.

  6. I’ve met 13 year olds who possess a great deal of maturity and who could easily pass for 17 or older. I’ve also met 17 year olds who looked 14 and, when they opened their mouths, would struggle to convince anyone they were older than 12. People are individuals not age based stereotypes.

    • Caroline, Lewis Danes – the 19 year old convicted of the murder of Breck Bednar had the face of 12-13 year old I was astonished when I saw his picture. However when they played the tape of his 999 call to the police it was clear that he was no 13 year old child. Children reveal themselves to be children when they speak.

      • Agreed, when I first saw that photo of Danes I actually assumed it was a photo of his 14 year old victim. He definitely didn’t look 19/20. So yes, looks don’t indicate mental maturity in either direction – you can look young while having a mature mind or look older while having an immature mind. But if you talk to enough teenagers there is a huge variety of maturity levels (same applies to any age I guess). Listening to Malala Yousafsai, for instance, I don’t think anyone would say she sounded like a child at the age of 15/16. She could have easily passed for an adult in her twenties in terms of her speech and maturity.

  7. 13 was not called and according to The Times “the trial was told that her account to the police was inconsistent with other evidence” – whether the jury was there when that was said is not clear.

    Either way (but especially if they were) they will have drawn their own conclusion.

    The elder girl (whom this apology for a man did not molest) was called but that would not necessarily plug the gap. To mix my metaphor, there was an elephant in the room, or rather a young teenager not in the room.

    We weren’t there, we did not hear the evidence and the jury did; we cannot second-guess their decision that (on the balance of probabilities) he believed she was sixteen or up and that his belief was reasonable. Did any of the papers mention the gender balance of the jury?

    L-E-S: You may or may not know that before 2003 mistake was no defence and that that was changed without a word of the change being mentioned in either House! But in truth I don’t think the old law would pass muster under the HRA. The older the girl, the more readily the jury will believe in the mistake and consider it reasonable. 13 is an extreme and nasty case but the jury were convinced and that’s that.

    I agree with Kris: if she went with him to a bar or a pub where only 18 plus is allowed that may have weighed heavily with the jury.

    Of course a man of 57 who wants to have intercourse with a girl of 16 or 17 – legal though that would be – is vile and disgusting but that’s not a crime. If it was we would need a lot more prisons and they would not all be male!

    I am sorry for this man’s children and for his wife if she did not know about his proclivities – which is possible. I hope he suffers reputational and financial ruin. I hope his world collapses round him. As we used to say when I was a lad: if he was on fire I wouldn’t p*ss on him. But the prosecution failed to make out their case to the satisfaction of a jury and that is the long and the short of it.

  8. I assume that there would be some guidance given to the jury over what would consider reasonable for Mr Richard to have assumed over the girls with respect to their age. We don’t know what evidence his defence put forward to show that his belief was reasonable. As Caroline says it can be hard to tell age by assessing maturity and looks, especially when a girl goes out her way to look a particular way to impress a man (and no I’m not blaming the girl). There are a lot of people who play up to their youthful appearance – to take a non sexual example actors like Michael J Fox convincingly looked like a 17 year old when he was 24 and for other examples just search for “actors who play characters much younger than themselves” – and inevitably some people will use their looks to attract older men who like that “look” in a sexual way: we may find it distasteful but it is not illegal. It sounds like Mr Richard used a website where such behaviour was expected so despite the girls appearance he was expecting her to be older (likely the website required those advertising to be over 16) – that immediately puts him predisposed to believe her when she says she is 17.

    The money issue is completely separate (in my opinion). If you take it to an extreme then a man paying for dinner on a first date falls foul of “In this section, “payment” means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount.”

    Now perhaps the law should be changed so that its up to the man to prove that he made reasonable effort to ascertain the girls age; but at what point should this become a requirement? Any girl aged 13-17 with any man? Perhaps any girl aged 13-17 with a man aged 21 or older? Maybe not until the man before 25?

  9. To answer the question above about the gender balance of the jury it was 8 women and four men. So given that, the evidence must have been pretty persuasive to convince 8 women to vote not guilty to those charges.

    I believe one of his defences was that you are supposed to have to have proved your age to be able to sign up to the website they met on.

    • Thanks for this. So it wasn’t a gang of arrogant phallocrats or at least if they were eight of them were of the female persuasion.
      It’s a nasty case no amtter how you look at it.

  10. If the news reports are accurate, then I personally think that there are a few things which should have set alarm bells ringing for him.
    Not least the fact that you have to be 18 to sign up for that website, but the girls allegedly told him when they met up that they were aged 16 and 17 (indicating that they’d already lied at least once about their ages).
    Doug Richard also doesn’t strike me as a naive, trusting soul. Bear in mind that this is the same man who holds degrees in Psychology and Law, and was so cagey on Dragons’ Den that he wouldn’t make a single investment during the second series.
    But be that as it may, the key point seems to be that “belief in the person being least 16” is a valid, legal defence as long as the minor is aged 13+.
    I can only say I find this somewhat disturbing. I’ve been told (…though I’m happy to be corrected if wrong….) that if a pub is caught serving alcohol to someone under the age of 18, ignorance of the person’s age is not accepted as an excuse. Yet to me, sex with a 13-year old is a far more serious matter than serving alcohol to someone who is under 18.
    Just my opinion.

  11. Elizabeth you say “Yet to me, sex with a 13-year old is a far more serious matter than serving alcohol to someone who is under 18” and I agree.

    Which is why it is a far more serious matter to convict someone of under-age sex than of selling drink to an under-age customer.

    In any event for there to be a defence the belief has to be reasonable – not just genuinely but subjectively held, but objectively reasonable. The burden of proof (to the balance of probabilities) is on the defendant and with such a young girl he has a mountain to climb: but Mr Richard climbed it.

    • What I don’t understand is why is it even allowed as a defence. Who cares what he believed maybe check. Try what’s your NI number or what’s your tax code he could easily have worked it into the conversation given his entrepreneurial status her blank look would have told him everything he needed to know had he cared.

      • What if she’d lied and given bogus codes and NI numbers? Do you know yours off by heart?

        It’s allowed as a defence because the law says it is and the judge must do direct the jury. It succeeded because the judge heard his evidence and that of the other girl – but not of 13 – and decided that he did believe she was 16 or up and his belief was reasonable. Those women and men heard all the evidence – we only read the juice bits which the press reported.

        • Yes I know my NI number off by heart. I learnt it when it arrived in the post after my 16 birthday before that I didn’t even know they existed. And the law is wrong as it often is, exactly what man/men throught to write this into law and what was their motivation I wonder. In fact I have no doubt what their motivation was and it stinks.

  12. And of course the jury heard the evidence, not the judge although the judge heard it too. Andrew: engage brain before using keyboard!

    • It’s a shame we haven’t heard from the real victim in all this the 13 year old young woman her voice (inconsistent or not) would have added much needed daylight to this matter.

      • Well: (1) that might have been too traumatic for her or (2) her evidence might have blown too big a hole in a case which seemed a runner or (3) both. She might for example have said that she claimed to be 18, played the part, dressed accordingly . . . in which case the judge might have thrown the case out at the end of the prosecution evidence. For the CPS a judge-directed acquittal is a failure; not so an ordinary acquittal by a jury.

  13. The Minister in charge of the new law in the House of Lords was a woman. Think what you like of it, the judge has to apply it.

    I have to make a confession. I know my NI number too. We are both sad.

    But I don’t know my tax-code. And not knowing your NI number by heart does not prove that you are too young to have one.

  14. I’m actually genuinely surprised that *anyone* knows their NI number by heart lol! Congratulations on having a good head for numbers. However, I’d be frankly incredulous if anyone can actually claim they have asked any of their sexual partners to recite their NI number…

    On a serious note, the problem is that it’s virtually impossible to verify someone’s age 100% if they lie, and plenty do. I did, with my second boyfriend. I wasn’t sure he’d be interested in dating a 15 year old so told him I was 17, met him in a pub where I got served without question (whereas he got carded), and I didn’t hesitate to (inaccurately) fill him in on what A levels I was doing and where I was applying to uni.

    Granted, I hadn’t just turned 13 like this girl, nor did I meet him on a sugar daddy website, nor was I at all petite which it sounds like she was. I’m not saying I necessarily think his belief in her age was reasonable in this particular case, although the jury obviously thought so. But in many cases the belief is very reasonable indeed. If you removed that defence no one could ever have sex with anyone who looked a day under 40. People lie. People look and act older. IDs can be faked.

  15. I want to be clear about one point re: NI numbers. I wasn’t expecting the 13 year old to rattle off her NI number my point was that at 13 I didn’t know they existed at all and neither did any of my friends. And in the circumstances where she looked young for her age it would have been easy to work into the conversation a comment about income tax (where she would no doubt reminded him of her alleged cover story of being a six form student so – I’m a student blah de blah) but you’ve got an NI number haven’t you? Response: what’s that, blank look or question not answered would be a big clue to age but there’s lots of other things he could have asked had he cared to which would have kept him out of court altogther.

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