England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Monday 4th August 1997

B E F O R E :

LORD JUSTICE SWINTON THOMAS

MR JUSTICE ROUGIER

and

MR JUSTICE BLOFELD

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R E G I N A

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BILLY MATRIX

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 831 3183 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR C NICHOLLS QC & MR T MCKINNON appeared on behalf of the

Appellant

MR CJ HEHIR appeared on behalf of the Crown

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

Monday 4th August 1997

JUDGMENT

LORD JUSTICE SWINTON THOMAS: On 13th February 1996 there was a sex shop situated at 14 Moor Street, Soho, London W1. The appellant lived above the shop. The shop specialised in the sale or rental of explicit sexual video cassettes said to cater as advertised for "different sexual orientations".

On 13th February police officers with a warrant raided the shop. The appellant, who was employed as an assistant, was, at that time, in sole charge. The police took possession of a number of video cassettes. The relevant video so far as this appeal is concerned was one that bore the title "Steinzeit Bengal". The shelves in the shop had empty video boxes with a number, and in ordinary circumstances the customer would go to the counter and ask for the video cassette that he required by reference to the number.

This particular video, "Steinzeit Bengal", was not displayed on the shelves and did not have a box. Three copies of the video were found behind the counter in the shop. Each had a stock number, and the records seized by the police showed that one copy had been sold on the day of the search, 13th February. The video showed young boys engaging in various sexual acts.

The indictment laid against the appellant contained four counts. Count 1 charged him with having obscene articles for publication for gain contrary to section 1(1) of the Obscene Publications Act 1959, as amended, and related to a video cassette called "Redemption" for publication for gain. Counts 2, 3 and 4 charged him with possessing indecent photographs of a child contrary to section 1(1)(c) of the Protection of Children Act 1978. The video "Redemption" depicted sexual acts between young men over the age of 16. Count 2 related to a video cassette called "Manuel". Count 3 was "Steinzeit Bengal" and Count 4 was a video cassette entitled "Golden Boys".

The prosecution case in relation to Counts 2, 3 and 4 was that the persons shown engaging in the sexual acts in the videos were boys under the age of 16. Not surprisingly it was impossible for the police to track down the boys who took part in the filming. Accordingly the prosecution and the defence each called a medical expert, who had viewed the videos, to express an expert opinion as to whether the boys depicted were or were not over the age of 16. That was the primary issue in the case, and the primary issue that the jury had to resolve.

The jury acquitted the appellant on Counts 1, 2 and 4. So far as Counts 2 and 4 were concerned, it is likely that the jury was not satisfied that it was proved that the boys shown on the videos were under the age of 16.

The trial took place before his Honour Judge Mercer at Southwark Crown Court, and the jury returned their verdict of guilty on Count 3 and not guilty on the other counts on 1st May 1997. The appellant was sentenced to 12 months' imprisonment. He appeals against his conviction with the leave of the Single Judge, and his application for leave to appeal against sentence was referred to this Court, and we have heard as yet no submissions in relation to that.

At the trial the evidence was given as we have already indicated. The appellant called his expert evidence as to the age of the boys concerned, but did not give evidence himself.

It is necessary in the context of this appeal to set out the statement and particulars of the offence of which the appellant was convicted and the relevant sections of the Protection of Children Act 1978. Count 3 was in these terms:

"STATEMENT OF OFFENCE

POSSESSING AN INDECENT PHOTOGRAPH OF CHILDREN, contrary to section 1(1)(c) of the Protection of Children Act 1978.

BILLY MATRIX on the 13th day of February 1996 had in his possession an indecent photograph of children, namely a video cassette entitled 'Steinzeit Bengal' with a view to it being distributed or shown by himself or others."

Section 1(1) of the Protection of Children Act 1978 provides:

"It is an offence for a person -

(a) to take, or permit to be taken, or to make any indecent photograph or pseudo- photograph of a child; or

(b) to distribute or show such indecent photographs or pseudo-photographs; or

(c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others;...

(2) For the purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person."

Then subsection (4):

"Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence to him to prove -

(a) that he had a legitimate reason for distributing or showing the photographs or pseudo photographs or (as the case may be) having them in his possession; or

(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent."

Accordingly subsection (4) of section 1 provides a defence to a person who can prove that he had not seen the photographs in question, and did not know or have cause to suspect that they were indecent. The appellant in this case did not avail himself of that defence and did not give evidence. It is in relation to that matter that the second issue raised by Mr Clive Nicholls QC, on behalf of the appellant, arises.

In the course of the trial Mr Salter, who then appeared on behalf of the defendant, made a submission that the video could not be in the possession of the appellant because he was merely an employee of the sex shop. The judge rejected that submission. Unfortunately we do not have a copy of his ruling, but in his ruling on a further submission that there was no case for the defendant to answer the judge referred to the earlier ruling that he had made. He said this, having referred to the submission:

"These submissions are based on acceptance of my previous ruling that if the video in question was part of the video stock of the shop which the defendant by reason of his employment had agreed to sell and which was under his control, then possession with a view to distribution would be established and that it was not necessary in such circumstances that the defendant should have seen or been aware of the contents of the particular video."

It is clear from that passage that the issue upon which the judge was called on to rule was whether the knowledge of the contents of the video, in this case the showing of under-age boys engaged in sexual acts, was necessary for the purposes of possession. The judge then went on to rule that there was evidence sufficient to go to the jury.

Mr Nicholls does not challenge the initial ruling made by the judge, nor does he challenge the ruling that there was a case to answer. The point that Mr Nicholls makes is that by reason of a combination of the first ruling by the judge and the way in which the judge left the matter to the jury, he effectively removed the issue of possession from the jury's consideration.

Mr Nicholls submits that this case, in so far as the issue of possession is concerned, is similar, and raises an identical point as the point that arose in Warner (1968) 52 Cr.App.R. 373. Mr Nicholls submits that what the judge did by his ruling, and the way in which he left it to the jury, was to equate possession solely with the physical control of the object concerned without reference to the appellant's knowledge. Mr Nicholls does not dispute the fact that the appellant knew that he was in possession of a video when he took possession of the stock in the shop and that the video would have contained explicitly sexual material, but in Mr Nicholls' submission it was not shown that he had knowledge that the video contained depictions of children engaged in sexual acts, and that knowledge is an essential ingredient to possession. He goes on to submit that ignorance of the kind of material, as opposed to the quality of it, is a matter of degree, and is a matter for the jury to consider.

Quite clearly Mr Nicholls is right in his submission that the question that arises so far as possession is concerned will depend upon the nature of the possession and is a matter of fact and degree and will depend on the particular facts of the particular case.

After inviting our attention to relevant passages in the decided cases, to which we will have to look in a moment, Mr Nicholls submitted that in order for an article not to be in the possession of a person who is handling it, what has to be shown is that there was a possession of a wholly different nature. In other words, the article must be of a wholly different nature to that which the defendant believed it to be. Those submissions are largely taken from an extract from the speech of Lord Pearce in Warner. At page 427 Lord Pearce said:

"By physical possession or control I include things in his pocket, in his car, in his room and so forth. That seems to me to accord with the general popular wide meaning of the word 'possession' and to be in accordance with the intention of the Act. On the other hand, I do not think Parliament intended to make a man guilty of possessing something when he did not know that he had the thing at all. And it is here that the real difficulties begin."

It is important in the context of the present case that Lord Pearce was there stressing that a man should not be found guilty of possessing something which he did not know that he had at all.

It was common ground in this case that the appellant knew that the videos in question, and the subject matter of Count 3, were in the shop, and in that sense that he had taken possession of them when he took possession of the stock.

Lord Pearce then continued:

"Lord Parker CJ was right (and this is conceded by both sides) in taking the view that a person did not have possession of something which had been 'slipped into his bag' without his knowledge. One may, therefore, exclude from the 'possession' intended by the Act the physical control of articles which have been 'planted' on him without his knowledge. But how much further is one to go? If one goes to the extreme length of requiring the prosecution to prove that 'possession' implies a full knowledge of the name and nature of the drug concerned, the efficacy of the Act is seriously impaired, since many drug pedlars may in truth be aware of this. I think that the term 'possession' is satisfied by a knowledge only of the existence of the thing itself and not its qualities, and that ignorance or mistake as to its qualities is not an excuse."

Here again it was common ground that the appellant knew that the video was physically present in the stock and the ignorance put forward was as to its quality, namely that it depicted children engaged in sexual acts.

Lord Pearce then continued:

"This would comply with the general understanding of the word 'possess'. Though I reasonably believe the tablets which I possess to be aspirin, yet if they turn out to be heroin I am in possession of heroin tablets. This would be so, I think, even if I believed them to be sweets. It would be otherwise if I believed them to be something of a wholly different nature. At this point a question of degree arises as to when a difference in qualities amounts to a difference in kind. That is a matter for a jury who would probably decide it sensibly in favour of the genuinely innocent, but against the guilty."

Mr Nicholls, rightly in our judgment, says that the nub of this appeal turns on the phrase used by Lord Pearce: "At this point a question of degree arises as to when a different in qualities amounts to a different in kind". It is Mr Nicholls' submission that an absence of knowledge that the video depicted children does amount to a difference in kind.

Then on page 430 Lord Pearce said:

"A man who accepts possession of a parcel normally accepts possession of the contents. But that inference can be disproved or shaken by evidence that, although a man in possession of a parcel, he was completely mistaken as to its contents and would not have accepted possession had he known what kind of thing the contents were. A mistake as to the qualities of the contents, however, does not negative possession. Many people possess things of whose exact qualities they are unaware."

The question as to whether the Crown had proved that an appellant was in possession of drugs arose also in the more recent case of James McNamara (1988) 87 Cr.App.R. 246. Lord Lane, the Lord Chief Justice, made extensive references to Warner, and said this at page 250:

"Prior to the passing of the 1971 Act, the House of Lords in Warner v. Metropolitan Police Commissioner (1968) 52 Cr.App.R. 373, tackled this question. Unhappily it is not altogether easy to extract from the speeches of their Lordships the ratio decidendi . But doing the best we can, and appreciating that we may have not have done full justice to the speeches, the following propositions seem to us to emerge.

First of all a man does not have possession of something which has been put into his pocket or into his house without his knowledge: in other words something which is 'planted' on him, to use the current vulgarism. Secondly, a mere mistake as to the quality of a thing under the defendant's control is not enough to prevent him being in possession. For instance, if a man in possession of heroin, believing it to be cannabis or believing it perhaps to be aspirin."

That passage is particularly apt to the present case. There is no suggestion in this case that the videos had been planted on this appellant. There was no question, for instance, of them being hidden in a safe unknown to him. They were behind the counter, and the appellant knew they were there. One had been sold that day.

The position, as it is put by Mr Nicholls, is much more akin, in our judgment, to the person who has in his possession heroin believing it, for example, to be aspirin.

We have not called on Mr Hehir, on behalf of the Crown in this case, but we have his submissions which were before the trial judge and also his skeleton argument. He submits in his skeleton argument that on the unchallenged facts the appellant was plainly in possession of the video, the subject matter of Count 3, and he did not contend to the contrary, save to submit that he was not in possession in the sense that he was not aware of the contents of the video. It is not necessary, Mr Hehir submits, in the context of this case for the appellant to have knowledge of the contents of the video. The contents might well be relevant to a defence under subsection (4) of section 1.

Possession, as was stressed in both Warner and McNamara, can be a difficult concept, and the concept, as those cases will show, will very much differ according to the facts of a particular case, or what is sometimes described by lawyers as the factual matrix.

The judge dealt with the matter in his summing-up. At page 12H he said:

"Now, what about the word 'distribution'? 'For the purposes of this Act, a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.'

Well, what is alleged in this case is clearly the offering for sale, and that definition of 'distribution' clearly covers offering for sale."

Then, at the bottom of page 13, the judge turns to deal with the question of possession:

"Now what about the word 'possession', 'had in his possession'? I have previously directed you under section 1 of what was involved in possession in the context of that Act. But here, so far as these three counts are concerned, 'possession' means having something in your physical custody or under your control."

Mr Nicholls submits that that direction was wrong. The judge then continued:

"Now again, if you are satisfied that the video in question was part of the stock of the shop, which stock of videos the defendant by reason of his employment had agreed to sell and which was under his control - and it is not disputed that the general nature of the stock was sexually explicit material - then possession of the that particular video would be established, and again it is not necessary in such circumstances that the defendant should have been aware of the particular contents of this particular video, that is any of these three particular videos."

Again the issue which had been discussed earlier in the course of submissions in this case was not that the appellant had no knowledge that the videos were in the shop, but that he did not have knowledge of the nature of the acts shown in those videos. The judge then continued:

"So it may therefore be on the evidence that you have heard that you will have no difficulty in being satisfied in each of these three cases so far as these videos are concerned that the defendant did have them in his possession with a view to distribution by himself or another within the meaning of the Act. Certainly the defence have not sought to suggest otherwise."

The judge then went on to deal with the statutory defence.

We have endeavoured to indicate, more than once, that each case depends very much upon its own facts. In our judgment the rulings made by the judge, and the way in which he left this case to the jury, on its facts were correct. On 13th February 1996 the appellant was in sole charge of this shop, taking on the role of the manager. It was conceded that he had taken possession of stock in the shop. He did not suggest that he was unaware of the presence of these videos in the shop or that the offending video had in any way been planted on him in the way in which it is sometimes alleged in cases concerning drugs. His contention was that he was unaware that the offending video contained explicit sexual material relating to underage boys. It was, as we have indicated, a shop selling explicit material. He could, if he had wished to do so, have put forward a defence under subsection (4), but he did not do so.

In our judgment, on the basis of the concessions that were made and the undisputed evidence, this video was plainly in his possession, and once it was in his possession at a shop which was either selling or renting videos it was plainly also in his possession for the purposes of distribution. In our judgment the judge made no error of law in his rulings or in his summing-up.

We pass, then, to the second point that is raised by Mr Nicholls. Mr Nicholls submits that Mr Salter, counsel then appearing for the appellant, was in serious error in failing to put forward a defence pursuant to subsection (4) of section 1 of the 1978 Act. Mr Nicholls concedes that the degree of the fault must, to a substantial extent, depend on the appropriate interpretation of subsection (4). He points to the fact that the Act, as it states, is an Act designed to prevent the exploitation of children. He then refers to subsection 1(a), which makes it an offence "to take, or permit to be taken, or to make any indecent photograph or pseudo photograph of a child", stressing the word child. Likewise, under subsection (c), he stresses the use of the words "such indecent photographs", namely photographs of a child. He turns then to subsection (4), which, as we have already indicated - and which it is necessary to read again - provides:

"Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove -...

(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor have any cause to suspect, them to be indecent."

Mr Nicholls submits that taking the section as a whole, a narrow, as opposed to a wide, interpretation should be given to subsection 4(b). He submits that when the word "indecent" in subsection (4)(b) was used by the draftsmen and in the Act as passed by Parliament, it must have meant that the photographs were indecent photographs of children.

We do not agree with that submission. If the draftsmen and Parliament had intended that the defence should apply if it was proved that the appellant or a defendant had no cause to suspect the photographs of being indecent photographs of children, then undoubtedly that would have been appeared in the subsection, and it does not. The words that are used are "nor had any cause to suspect them to be indecent".

In our judgment the reason that the subsection is framed in that way is obvious. It is framed in that way to protect persons who may innocently have material in their possession, but have no reason to suspect that they have indecent photographs.

That interpretation of the subsection in one sense may not be strictly necessary for the disposal of this appeal. Mr Nicholls relies on this aspect of this appeal on what was said by this Court in Clinton (1993) 97 Cr.App.R. 320. The headnote reads:

"Where defence counsel in a criminal trial makes decisions in good faith and after proper consideration of the competing arguments and where appropriate after discussion with his client, such decisions would not render the verdict unsafe or unsatisfactory, nor could allegations of counsel's incompetence amount to a material irregularity. Conversely, where counsel's decisions were taken either in defiance of, or without proper instruction or against the promptings of reason or good sense, it might be open to the Appellate Court to set aside the verdict by reason of section 2(1)(a) of the Criminal Appeal Act 1968. The approach to be taken was not to assess the degree of the alleged incompetence, but to seek to assess its effect on the trial and the verdict according to the terms of the subsection."

The point which is taken by Mr Nicholls under subsection (4) was not taken by Mr Salter, either in the course of submissions to the judge or to the jury. He chose not to call his client.

We have no information as to why Mr Salter chose to take that course, and in the circumstances of this case it would be quite wrong, in our judgment, to make any criticisms of him. There was evidence, for example, that one similar video had been sold in the course of 13th February. That is but one example as to why Mr Salter may have decided not to call his client.

In any event, we are quite satisfied that this case does not in any way fall within the principles set out by Rougier J in his judgment in the case of Clinton.

We do not rule that this conviction was in any way unsafe, and accordingly the appeal against conviction must be dismissed.

Sentence application heard

LORD JUSTICE SWINTON THOMAS: Pursuant to the order of the Single Judge, Mr Nicholls renews his application for leave to appeal against sentence. It is not, of course, necessary for me to say anything further about the facts of this case, save perhaps that this type of offence relating to young children is very serious.

The appellant contested the case. He has a previous conviction for a similar offence, that conviction being comparatively recent.

In passing sentence judge said:

".....I am by no means satisfied that you were not aware of the general nature of this video. However I have not heard evidence from you, and I do not think it necessary to do so because I propose to deal with you solely on the basis that you were employed in the shop, to some extent you were a front man, but that you at least took the risk of there being such a video in stock such as that in the shop and that was seized on this occasion, and that is the basis on which I will pass sentence."

Mr Nicholls invited our attention to sentences passed in other cases relating to obscene publications in relation to children, and we take those cases into account.

However, bearing in mind the nature of this case, that it was contested and that the appellant had a previous conviction, in our judgment a sentence of 12 months' imprisonment was not in any way excessive. Accordingly the application for leave to appeal against sentence is refused.