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Cite as: [2000] EWCA Crim 44

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WRIGLEY, R v. [2000] EWCA Crim 44 (26th May, 2000)

Case No: 99/01497/Z5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
(HIS HONOUR JUDGE D P STANLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 26th May 2000

B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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	REGINA
	- and -
	CHRISTOPHER BERNARD WRIGLEY

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Ms Lindsey Kushner QC (instructed for the Appellant)
John Mitting Esq, QC (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 3rd February 1999, at a retrial in the Crown Court at Birmingham (His Honour Judge Stanley) the appellant was convicted of one offence of distributing indecent photographs of children (Count 2) and one offence of possessing indecent photographs of children for distribution (Count 3). He was sentenced to three months' imprisonment on Count 2 and to six months' imprisonment concurrent on Count 3, the total sentence therefore being six months. It was compulsory that he register as a sex offender for seven years. He was acquitted on Count 1 (distributing indecent photographs of children). He now appeals against conviction with the leave of the Full Court.
2. The appellant had just completed a four year undergraduate degree at Keele University. On 25th July 1995, acting on information received, the police with a warrant searched the appellant's rooms and found 32 disks containing 677 indecent images of children, young boys. Evidence was to show that the appellant had down-loaded those images onto those disks, and that he was using a computer, the Internet, and e-mail to communicate, swap, and discuss the images from that store with two American paedophiles, one known as Sonny Delight and the other John Kinloch.
3. The offences were created by the Protection of Children Act, 1978. The short title of that Act 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) of that Act is the offence creating section and reads as follows:
"(1) 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; or
(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so."
4. The scheme of the indictment was that Counts 1 and 2 alleged breaches of Section 1(1)(b) of the Act, namely Count 1 charged the appellant with having:
"... distributed or shown indecent photographs or children, namely photographs on file lvb 2."
These were indecent images allegedly sent to Kinloch. Kinloch was called to give evidence. It is clear that he was not a satisfactory witness, and the appellant was acquitted on that count. Count 2 used similar wording to allege the distribution of indecent photographs to Sonny Delight.
5. Count 3 was the principal count, at the heart of the case, dealing with the appellant's store of indecent photos to be found on the 32 disks found by the police search. The offence charged was under 1(1)(c):
"to have in his possession such indecent photographs ... with a view to their being distributed or shown by himself or others"
6. Though there was an issue on Count 2 as to whether the material was indecent, that issue is not relevant to this appeal. The real issue on Counts 2 and 3 was whether the appellant had made out the statutory defence to be found in Section 1(4) of the Act:
"Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove-
(a) that he had a legitimate reason for distributing or showing the photographs ... or (as the case may be) having them in his possession; ..."
7. The scheme of the Act therefore is that while bare possession of such indecent photographs is not an offence, it is an offence to take them or to show them to anyone else or to possess them with a view to their being shown to anyone else. But all of that is subject to the statutory defence (the burden of proof of which lies on the appellant) that he possessed them for a legitimate purpose.
8. Counts 2 and 3 turned on the legitimate purpose defence. The first ground of appeal complains of a misdirection in the summing-up in relation to it. The possession of indecent photographs was admitted by the appellant, and he had in reality acknowledged that they were there in his possession so that as and when it was appropriate he would exchange photographs or send photographs to interested paedophiles.
9. The issue here was whether the appellant could prove on the balance of probabilities that he had a legitimate reason for possessing the indecent material, namely genuine academic research. His defence was that he was conducting an informal pilot study as to whether there was material for a PhD. This required him to pose as a paedophile while he evaluated the different responses to specific indecent pictures of two different sorts of paedophile, namely Sonny Delight (who he categorised as an "active fixated paedophile") and John Kinloch ("non-active fixated paedophile"). The Crown's response to this was that his reason was to satisfy his own interest in indecent material featuring young boys: in his own words (but, he would say, while posing as a paedophile) "I love young boys".
10. There were evidential difficulties in the academic research defence. First, he had not discussed such a research program with any of his tutors. Second, he realised it would be difficult to get permission to use pornographic pictures. Third, a number of his tutors, when he came to them after his arrest, advised him to take his research material to the police. But he did not do so. He said he had destroyed most of it, because he did not wish it to fall into the wrong hands, ie the police's. What he said remained were entries in his diary or note book which could not be dated. The Crown's case was that there were no research documents to destroy, in fact he had had to create some (which he duly did). And fourth, when originally interviewed, he told a totally different story, as summarised below.
11. Before coming to what he said in that interview, there is no doubting his interest in children, nor his academic abilities, nor his interest in the Internet and human response to questions from computers. His suggested PhD study was not strictly speaking relevant to his undergraduate course work, but sufficiently close for academics to take it seriously. The Crown's case was, of course, that this was just a smoke-screen to conceal his real prurient interest in young boys.
12. From the nature and the wording of his correspondence with Sonny Delight and Kinloch there was - taken at face value - ample evidence that he was a paedophile. His answer was, of course, that he was simply pretending to gain their confidence in the interests of his research. He did not entrust the police with this information at his first interview. He had told them that he was not interested in men at all, but was in children. He had an affinity with children, but it was not a sexual one. As to the indecent photographs, he was just looking "... to find out about myself ...". The police gave him the opportunity to say he needed the material for his research, but he said nothing about it - not trusting the police, he was later to say. The judge was entitled to comment, as he did, that if what he said about trying to discover his personal sexual orientation was true "... then any question of legitimate reason is perhaps blown out of the water."
13. It will be seen that the issue was whether the collection was made and the material supplied was for genuine academic research.
14. It was common ground that a correct direction was initially given on this topic, at 16A of the summing-up:
"What he has to do is to persuade you that he probably did have a legitimate reason. If that is the case, he is entitled to be found not guilty, because he will have discharged the burden of proof. But if he does not, then provided the prosecution have made you sure of the other ingredients of the offence, of course you must find him guilty.
There is another little complication to all of this, because, as Mr Mitting rightly said to you, if you conclude that the defendant had, as it were, a secret purpose of gratifying his own sexual curiosity in addition to a legitimate reason for doing what he did then he is still entitled to rely on the statutory defence. Putting in the way that Miss Kushner did, that the statutory defence of a legitimate reason overrides and, as it were, suppresses any coexistent motive that he may have had to gratify his own sexual curiosity."
15. That was Miss Kushner QC's defensive position, but the appellant's case was that he had no sexual interest whatsoever in young boys at the relevant dates, so the "dual reason" (a legitimate reason = research, and an illegitimate reason = prurient interest) was never run.
16. That direction dealt with the construction of the statute, and made the law clear. It did not deal specifically with the resolution of the controversial issue posed by the statutory defence on each count. That was done when each count was considered.
17. On Count 1, the question of legitimate reason did not arise (see page 29E). As to Count 2, the appellant had to deal with the pictures he sent to Sonny Delight. He explained that this was necessary because if he only received pictures from Sonny Delight, he might be suspected not being a paedophile but a law enforcement officer: accordingly: "... he sent these for a legitimate reason as part of my research". As to Count 3, the jury were again reminded that:
"... his legitimate reason is that he was carrying out genuine academic research. Just to [point] up the conflict between the prosecution and defence, the prosecution case is: not a bit of it. The reason purpose for possessing them was to satisfy his interest in that type of material". (27B-C)
18. The Crown's case was first, that while genuine academic research could be a legitimate reason, here the reason for the collection was not academic (ie that the original response to the police in the first interview was right), the reason for the collection was Mr Wrigley's search for his personal gratification and/or his sexual orientation.
19. It is against this background that we must consider what follows next after the approved passage at 16A, quoted above:
" Let's just point up one of the features about this. The prosecution [case] here is that he may have had a genuine academic interest in the subject about child sexual abuse. But their case is that this was not the real reason for him being in possession of these pictures at that time that he was in that part of 1995 that you are considering. The prosecution's case is that the academic interest was merely a provisional one, a future one, and that it has been used by Mr Wrigley as a cover to enable him to satisfy his primary purpose which was, if you like, a secret prurient interest in child pornography.
So you have to make a decision as to what was actually going on in his mind from the evidence which you have heard. Where it comes to considering whether he had a legitimate reason then you will know that he has to prove that he had a legitimate reason."
20. The complaint is made that the judge confused a clear direction by introducing the concepts of "provisional" and "future" purposes, namely whether (as the judge was later to remind the jury at 73E)
"... whether he was just messing about out of his own personal curiosity with obscene material, with merely some thought that it might be woven into some research at some stage, or whether he had actually been doing a serious pilot study for a legitimate reason."
21. It may be, we know not, but it seems likely that the judge departed there from his note (this was a careful and structured summing-up) and anticipated what he was to say about the second interview with the police where the appellant admitted (see the passage quoted at p 73H to 74D) that he had evidential difficulties in proving his research because he "... had not in fact got around to doing that [ie, using it for research] so I've been caught out."
22. Here Miss Kushner has identified an untidiness - at page 16D the judge appears to have skipped forward without identifying the passage. In our judgment there is nothing wrong with what we find at pages 73 and 74 - there he is dealing with the issue and the competing contentions. The judge was defining the issue, but he was not prejudging it. He was reminding the jury of the Crown's case.
23. But greater difficulties are caused by the passage at page 16. The emphasis there was on the time when the collection occurred - a time the Crown were saying was before there was any idea of research. So it could not have been the real reason for the appellant's having the indecent photographs. That is a legitimate point, but it is out of context.
24. Miss Kushner complains that the effect of the passage at page 16 is to undo the good done by the accurate summary of the law which preceded it, and to give the impression that, in a dual legitimate reason category, if the academic reason is not the "real reason" or his "primary purpose" but is "provisional" or "future", so the jury might convict even though satisfied that the research was genuine. She submits that it is a misdirection leaving the conviction unsafe.
25. We are not so persuaded. While conceding that that passage is unhappy in context, it is unreal to construe oral summings-up as though they were statutes. The outline and the common-sense of the direction were plain. The issue was clearly identified. Counsel did not ask for it to be clarified. The jury did not ask for further help. They gave every indication of having approached their task carefully and thoroughly. We are not persuaded that this conviction might be unsafe. The case was a strong one. The summing-up had this rogue passage in it, but while it might have puzzled the jury, we do not believe that it contradicted the clear directions both before it and after it when dealing with the individual counts.
26. Next, Miss Kushner raises the question as to whether it was necessary for the judge to sum this case up as a dual purpose case - the suggestion being that the jury should have been told in terms that if they were satisfied that the appellant had the material both for the legitimate reason of academic research and for the illegitimate reason of his personal prurient purpose, they should acquit. That ground of appeal does not seem to appear in the Perfected Grounds, but we deal with it.
27. There was no application to the judge to put the matter in this way, and that was not surprising given that the appellant's defence depended on his credibility which was four-square founded on his frequent and emphatic denials that he had any sexual interest in small boys - he was only pretending to.
28. Secondly, the judge made the proper analysis of the statutory defence - namely that the appellant had to prove that his academic interest was his legitimate reason. The Crown met that by contending that his sexual interest in small boys was his reason. That was the proper and the clearest way to put the real issue in the case before the jury.
29. The second ground of appeal concerns the judge's decision to permit the Crown to cross-examine the appellant on his 1990 notebook. The matter was dealt with by the judge in his summing-up, and arose in this way.
30. At the time of his trial in 1999, Mr Wrigley was 29. He was giving evidence about 1995, when he was 25. His diaries reflected him at the age of 20. The diaries contained material showing a sexual interest in young boys which, as counsel put to him, "... ordinary people would find odd". Such entries in the diary were not used by the Crown in the first trial. Mr Mitting regarded them as probative, going to disprove the appellant's assertion that he had the material for research. But Mr Mitting also recognised their potential for prejudice.
31. In the second trial, the appellant was being cross-examined that the reason he was displaying and receiving indecent photographs of boys on the Internet was his prurient interest in young boys and had nothing to do with academic research. In answer the appellant held up his notebook which he said contained what was left of his research notes and said:
"This book and everything in it, everything I have ever written, and everything I have ever done is with one goal, one objective, and that is to reduce the incidence of sexual abuse of children."
32. The Crown regarded that as a straight lie on the principal issue in the case, and asked for permission to put certain entries from the diaries showing a fixation with young boys' genitalia , eg "What a turn-on!!".
33. The judge found that the diary entries revealed a sexual interest which the appellant was expressing and recording, in young boys. The detail of the entries did not matter. The purpose of introducing the material was to challenge and test:
"Mr Wrigley's claim that he had no interest sexually in little boys and to challenge his very broad assertion that everything he had ever done and ... written was ... to reduce the incidence of child sexual abuse."
34. In using the diary, the Crown made it plain that they were not suggesting that the appellant had ever laid hands on a child. But what emerged from that cross examination was summarised by the judge, who made it clear that it went to credibility on that issue:
"What he was saying is that he was in something of [a] turmoil in 1990 and that he thought he had this sexual interest in children but he was examining and finding out about it. Certainly by 1992/93 he was quite sure that he did not have a sexual interest in young boys of the sort of age we have been considering, and that by the time we reach 1995 there was absolutely no sexual interest in it at all. There was really no question of him having a secondary purpose at all. His only motivation at that time, having become interested in that field in that rather convoluted way that he has explained to you, following the path of his own life through these influences that exerted themselves, that he had no sexual interest in them but he was very committed to examining the causes of and finding solutions to the problem of child sexual abuse.
So that material from the 1990 diary may have an effect upon your view of his character and it would be unreal to say to you you cannot take it into account at all. It is part of the evidence you have now heard and must have a bearing on your assessment of his as a witness. You will have to decide whether he may be telling the truth that he had overcome this perceived sexual interest in little boys or whether it was, as the prosecution suggest, still a serious driving force in his life in 1995. He is entitled to ask you to use what you know about his good character in his favour when considering this very important issue. I hope that is plain enough to you. [We interpose there to emphasise that his good character had gone before the jury, with both the credibility and propensity directions]
The one thing you must not do is to say, `Look at what he wrote in 1990. How disgusting. He must be guilty of these offences with which he is charged relating to 1995.' That would be a wholly unfair and wrong approach, it would be using the material for an improper purpose. The prosecution rightly kept it out of the case until there was a particular issue where it was necessary to confront Mr Wrigley on that issue. Having done so, you then have to make an assessment as to the value, that is, to you when reaching a conclusion about what was going on in his mind in 1995."
35. As that excerpt shows, the material was relevant to support what the appellant had told the police in his first interview (but subsequently disavowed) as to what his purpose for collecting the material had been.
36. In our judgment, the material as used was plainly relevant and admissible. Whether to permit the cross-examination was a matter properly within the discretion of the trial judge. Mr Mitting has described what he submitted was the calculated dramatic effect of the appellant's declaration. The judge had to decide whether "... it was necessary to confront Mr Wrigley on that issue". He concluded that it was. His approach to the exercise of that discretion cannot be faulted. He, and not this Court, was in the best position to judge what fairness (to defence and prosecution) required in the balance of this trial, and it cannot be said that his conclusion was perverse or irrational.
37. Accordingly, we dismiss this ground of appeal, and the appeal itself.