England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Friday 10th October 1997

B E F O R E :

LORD JUSTICE JUDGE

MR JUSTICE POOLE

and

THE JUDGE ADVOCATE GENERAL CB QC

(HIS HONOUR JUDGE RANT)

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R E G I N A

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MICHAEL LAND

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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 J WOOD appeared on behalf of the Appellant

MR P WALSH appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

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Crown Copyright

Friday 10th October 1997

LORD JUSTICE JUDGE: On 31st January 1997 in the Crown Court at Lewes before His Honour Judge Scott-Gall and a jury the appellant was convicted of seven counts of having an obscene article for publication for gain and two counts of possessing indecent photographs of a child contrary to section 1(1)(c) of the Protection of Children Act 1978. On 21st February he was sentenced to six months' imprisonment for having obscene articles for publication for gain and nine months' imprisonment on each of the counts of possessing indecent photographs of a child. All the sentences were to run concurrently and they were suspended for two years.

There were the usual orders for destruction and forfeiture and the appellant was ordered to make a contribution towards the costs of the prosecution.

On the judge's direction he was found not guilty of a further offence of possessing indecent photographs of a child.

He now appeals against his convictions on counts 8 and 9, possessing indecent photographs of a child, with leave of the single judge. There is no appeal against the remaining convictions.

The facts need very little recitation.

The prosecution case was that the appellant and his partner, a man not charged because he was outside the jurisdiction, ran a mail order business which dealt in the supply of obscene video tapes depicting homosexual activity from two premises in Brighton. The business used a variety of addresses including accommodation addresses and post office boxes in the south of England.

In September 1993, at a time when the appellant was out of the country, the police raided the addresses in Brighton. At one set of premises they found a large quantity of pornographic material, together with video machines, cassette recorders, cassettes and tapes and a very large number of papers and documents as well as computers, discs and leads all of which formed part of the business enterprise.

The appellant gave evidence in his own defence. Among other things he asserted that he had no knowledge that his partner had been in the business of selling sexually explicit homosexual videos, that he had been deceived and misled and very badly let down. He said that had he known the nature of the business he would have asked his partner to leave his house. Despite his evidence he was convicted by the jury.

The present appeal is concerned with his conviction of possession of indecent photographs of a child in two video cassettes called "Golden Boy Special" and "Haisses Bankok". As the jury found that these two videos were indecent no description is needed beyond recording that in the first of them, count 8, two young adolescent males, and in the second, count 9, a young Thai male and a western youth, are depicted in varied and indecent forms of sexual activity. Hardly surprisingly, there was no direct evidence about the identity of any of the participants in these activities, nor of their ages.

The first ground of appeal arises from the judge's failure to direct the jury that before an offence contrary to section 1(1)(c) of the Protection of Children Act 1978 could be established the defendant had to know that the indecent photograph was a photograph of a child. In other words it was not enough for him to know that he possessed a photograph that was indecent: he had to know that the photograph depicted a person under 16. Mr James Wood further argued that in the absence of any direct evidence of age, expert paediatric evidence about these matters should have been called before the jury to enable them to be informed of the variations of onset of puberty in different adolescent males, particularly with persons of different racial origins and backgrounds. He reinforced this argument by the fact that the judge withdrew count 10 from the consideration of the jury on the basis that there was not enough evidence for them to conclude that the participants in the video there under consideration were children.

The preamble to the 1978 Act explains its purpose. It is "An Act to prevent the exploitation of children by making indecent photographs of them: and to penalise the distribution, showing and advertisement of such indecent photographs."

Section 1(1) provides:

"It is an offence for a person---

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

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

By the interpretation section a "child" means "a person under the age of 16" and photographs "shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children..."

There is a statutory defence to charges under subsection (1)(b) or (c) but not under subsection (1) (a) or (d). The defences are limited to proof:

"(a) that he had a legitimate reason for distributing or showing the photographs...

or (as the case may be) having them in his possession; or

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

Express provision is made in the Act for matters of evidence in section (2)(3), which with the relevant insertion from the Criminal Justice Act and Public Order Act 1994 provides:

"Proceedings under this Act (relating to indecent photographs of children) a person is to be taken as having been a child at any material time if it appears, from the evidence as a whole, that he was then under the age of 16."

Mr Wood drew attention to the provisions of section 160 of the Criminal Justice Act 1988 which creates the offence of simple possession of an indecent photograph of a child, but also repeats the provisions for defence provided by section 1(4) of the 1978 Act adding, no doubt deliberately, the further defence that "the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time". He also drew attention to the effect of the Sex Offenders Act 1997 which includes offences committed both under section 1 of the 1978 Act and section 160 of the Criminal Justice Act 1988 among those to which Part I of the 1997 Act applies, subjecting such offenders to notification requirements.

Mr Wood suggested that unless his first submission were upheld these penal provisions could have some alarming results. He pointed out that a man might buy and keep an indecent magazine believing that the photographs contained in it depicted adults, and subsequently find himself convicted of possession of an indecent photograph of a child if, without his knowledge, it emerged that the person he believed was an adult was only 15 years old. In the absence of unequivocal language in the statute such an individual should not be subject to the rigours of the criminal law. He drew attention to Warner v Metropolitan Police Commissioner [1969] 2 AC 256. In that case the House of Lords was considering the effect of section 1(1) of the Drugs (Prevention of Misuse) Act 1964 and, in the absence of any statutory defence such as that later enacted by section 28 of the Misuse of Drugs Act 1971, the majority disagreed with the conclusion of the Court of Appeal that the Crown was not required to prove any mental element when seeking to establish unlawful possession of the specified substance. We cannot improve on the analysis of the reasoning to be found in Smith and Hogan, Criminal Law, 8th edition:

"Though D's possession of the box gave rise to a strong inference that he was in possession of the contents, that inference might be rebutted... It seems that the inference certainly would be rebutted if (i) D believed the box contained scent, (ii) scent was something of a 'wholly different nature from the drugs', (iii) he had no opportunity to ascertain its true nature, and (iv) he did not suspect there was 'anything wrong' with the contents. These issues (or at least some of them...) ought to have been left to the jury."

The effect of Mr Wood's argument was that applying these principles to the 1978 Act (and section 160 of the 1988 Act) the jury should have been directed that before they could convict the appellant it had to be established that he knew that the photographs which were found to be indecent were photographs of a child or children. No such direction was given.

We disagree. The provisions of the 1978 Act (and section 160 of the 1988 Act) are unambiguous. The principle in Pepper v Hart [1993] AC 593 has no application. An offence under section 1(1) of the 1978 Act may be committed in a variety of ways which include possession of an indecent photograph of a child with a view to distribution. The object is to protect children from exploitation and degradation. Potential damage to the child occurs when he or she is posed or pictured indecently, and whenever such an event occurs the child is being exploited. It is the demand for such material which leads to the exploitation of children and the purposes of the Act (and section 160) is to reduce, indeed as far as possible to eliminate, trade in or possession of it. At the same time statutory defences provide a framework protecting from conviction those whose possession of such material is not prurient.

Accordingly, and without attempting to rewrite the statutory provisions, no statutory defence is available for the individual who creates the material or advertises its availability. The defence is limited to persons who distribute or are in possession of such material either for legitimate reason (for example, a police officer in the course of his duty showing such material to the Crown Prosecution Service with a view to possible prosecution) or for an individual who was ignorant of and had no reason to believe that he was in possession of or distributing indecent material or in the case of simple possession, those who receive it unsolicited and get rid of it with reasonable promptness. Once it is or should be appreciated that the material is indecent then its continued retention or distribution is subject to the risk of prosecution if the source of the material proves to be a child or children. The anxiety expressed by Mr Wood for the individual who does not know that the material depicts someone who is in fact a child is misplaced. Ignoring members of the child's own family, who will know his or her age, it will be rare in the extreme for a complete stranger to be in possession of indecent photographs of someone who although appearing to be mature could nevertheless be proved by the prosecution to be a child. A glance will quickly show whether the material is or may be depicting someone who is under 16 and if it is or may be then prosecution will be avoided by destroying or having nothing further to do with it.

We are reinforced in our conclusion by noting that if it had been the intention of Parliament to provide a defence for an individual who because of the apparent maturity of the person depicted in the photographs failed to appreciate that a child was involved, it would have been very simple to make appropriate provision in section 1(4) and extend the statutory defences to the person who did not know nor had any cause to suspect them to be photographs of a child or, alternatively, reasonably believed that they depicted persons who were 16 years or older.

We can now consider Mr Wood's second ground of appeal, the requirement for paediatric evidence.

Section 2(3) of the Act is plainly concerned with the obvious difficulty of making any positive identification of an unknown person depicted in a photograph, hence his or her age, and therefore underlines that the question whether such a person was a child for the purposes of the 1978 Act is one of fact based on inference without any need for formal proof. We can see no basis for concluding that in the absence of paediatric or other expert evidence the jury is prevented from concluding that the indecent photograph depicts a boy or a girl under the age of 16.

The judge directed the jury that in deciding whether it was proved that the photographs were of a child:

"You can do no more than use your own experience, your judgment and your critical faculties in deciding this issue. It is simply an issue of fact for you, the jury, to decide what you have seen with your own eyes..."

In our judgment this direction is not open to question. In any event such expert evidence tendered by either side would be inadmissible. The purpose of expert evidence is to assist the court with information which is outside the normal experience and knowledge of the judge or jury. Perhaps the only certainty which applies to the problem in this case is that each individual reaches puberty in his or her own time. For each the process is unique and the jury is as well placed as an expert to assess any argument addressed to the question whether the prosecution has established, as it must before there can be a conviction, that the person depicted in the photograph is under 16 years.

The connected ground arising from the judge's ruling in relation to count 10 is that the judge told the jury the reason for his conclusion that they should return a verdict of "not guilty" because he had ruled that it would be unsafe to leave the question to them in the context of the video then under consideration. However he went on to remind them that the "factual conclusions you must make in respect of counts 8 and 9 are entirely yours and should be made without any consideration of my ruling on count 10".

In these circumstances the jury could not have treated his direction that there must be an acquittal on count 10 as an indication of his view that the videos in counts 8 and 9 depicted children. In a case with several counts where one was being withdrawn from the jury, we can see no possible criticism of the judge. The decision in R v Smith and Doe (1986) 85 Cr App R 197 involved criticism of the judge for explaining to the jury why he had rejected a submission of no case to answer. The basis of criticism was the risk that the jury might convict because they might regard the judge's view as a sufficient indication "that the evidence is strong enough..." That reasoning has no application in the present case, where the judge was at pains to emphasise that the jury had to make up their own minds about counts 8 and 9, irrespective of his conclusion on count 10. That is precisely what they did.

In these circumstances none of the grounds of appeal leads us to the conclusion that this conviction is unsafe. Accordingly the appeal is dismissed.

(Submission re application for leave to appeal to the House of Lords followed.)

LORD JUSTICE JUDGE: Mr Wood, we decline to certify the point as one of public importance and therefore we shall not grant you leave. That is our conclusion. That said, I have little doubt you may find yourself in one or other edition of some law report.