England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Tuesday, 3rd May 2005

1. MR JUSTICE DAVID STEEL: The appellant is now aged 37. Prior to the matter which is the subject of this appeal he had no convictions. On 22nd July 2004, in the Crown Court at Hull, before His Honour Judge Jack, the appellant was convicted of four counts of making an indecent photograph of a child and one count of possessing indecent photographs of children. He was sentenced to pay a fine of £300 on each count, the fine to be paid within 2 months and also ordered to pay £1,339 towards the costs of the prosecution. Thus, the total sentence was £1500 or 45 days' imprisonment in default and payment of costs. He appeals against conviction by leave of the Single Judge. The grounds on which the Single Judge did not give leave are not pursued before us.
2. The background is that in 1999 the appellant's personal details were found on a database of an American portal or a gateway called "Landslide" that had been closed down by the American authorities. The portal had been used to access various websites on the Internet. The database was forwarded to the police in this country. The appellant's details had been used to access five web sites within that site on different occasions between April 1999 and August 1999. The details used to access these sites were the appellant's name, his correct address, including postcode, his correct email address, with the user identification and correct credit card number and passwords.
3. Two of the sites that were accessed contained indecent images of children. The sites were called "Children for God" and "Children Forced to Porn".
4. As a result of the information received from the United States, on 3rd December 2002 the police searched the home address of the appellant. They found two computers, one old and one current. The hard drive of the new computer contained 15 indecent images of children in the form of thumb nails, that is to say small images that had not been enlarged on the screen or the hard drive. The images were located in free space indicating they may have been deleted and emptied from a recycled bin. The images were classified as level 1 and were of girls aged under 16 and as young as 10 posing naked or part naked. The computer containing the child images had been purchased on 29th May 2001, that is to say well after the "Landslide" site had been closed down.
5. Prior to the purchase by the appellant, it was accepted that the hard drive was new and clean and had not been used. When a "Landslide" site was accessed an email confirming access and the user identification was received. However, no emails from "Landslide" were found on this current computer.
6. A notebook was found at the appellant's address which contained two user names that matched the entries found on the extract for "Landslide" database that was sent to the police. The user names were GS 221 and G 720 and they were associated the password "Griff". These were the user's names for "Children of God" and "Children Forced to Porn" web sites. It was common ground that the entries in the notebook were in the appellant's handwriting. As regards the old computer which had been in use in 1999, no images of child pornography were found nor emails from "Landslide".
7. The police also seized the applicant's collection of adult pornographic videos and DVDs. Although the videos and DVDs showed disclaimers that everyone depicted was over 18, the titles suggested that people involved were or at least looked young. The appellant's credit card was seized and showed two payments to "Landslide" in April 1999 and May 1999.
8. The prosecution case was that the appellant knowingly made and possessed the indecent photographs of these children. Although there was no evidence that any of the 15 images found on the appellant's computer came from the "Landslide" site, the prosecution asked the jury to consider the "Landslide" evidence to show that the appellant had accessed the site and had a general interest in child pornography, despite his denials in interview. The precise purpose for which the prosecution deployed this evidence is a matter to which we will revert.
9. The appellant's DVD collection was adduced also because it suggested an interest in pornography involving people that appeared to be young, and as a counter to the suggestion that he had obtained the images which were contained on the hard drive accidentally.
10. It is the "Landslide" evidence and the DVD material which are at the heart of this appeal.
11. The defence case was that the images could have appeared on the hard drive because they had randomly "popped up" on the appellant's computer, or received as unsolicited or spam emails that he had unwittingly opened.
12. As regards the latter, it was, if they had been contained in such emails, possible, so the defence ran, that the images never appeared on the screen, or if they did, they were immediately deleted by the appellant, as soon as he realised they contained child pornography. Another possibility canvassed by the defence was that the images were accessed by an internal program called a Trojan, that controls the computer remotely. As such he did not knowingly possess or make the images.
13. As far as the "Landslide" material was concerned, the defence case was that someone else had accessed the child pornography sites using the appellant's stolen identity, including his usual password. As regards the DVD collection it was simply asserted that the material was legal.
14. The evidence adduced by the prosecution primarily centred on two police witnesses. Firstly, Police Constable Girling who was the case officer and gave details of the investigation. And Detective Inspector Pugh, who gave supplementary evidence on his examination of two computers. In particular, he explained that he had never come across a Trojan putting child pornography onto a computer, nor unsolicited emails contain child pornography.
15. As regards the appellant's interview, it will be necessary to look into some of the details in due course, suffice for the moment to say that the appellant gave the same overall account as he did in evidence, but answered no comment to some questions. He said that he checked his credit card statements. He failed to mention the unsolicited emails may have contained child pornography. However, the applicant said that he looked at child pornography from a site out of curiosity and had seen pictures of children on his computer screen, although he had never distributed them.
16. The appellant gave evidence. He denied that he was the person who accessed the child pornography sites on "Landslide". At the time the "Landslide" entries appeared on his credit card statement, he had five or six credit cards and he was on holiday during the middle of May 1999 and would not have subscribed to the website just before going away. He did not take out a subscription and had never queried entries on his credit. He had only checked the credit card statement to make sure it balanced with his banking figures. He accepted that the notebook that the police found belonged to him and mostly contained his writing. He had merely recorded details of adult pornography sites that he had viewed.
17. The appellant accepted that he wrote the two pass words in the note book that the police found. He believed he had copied them from emails received on his computer, reconfirming that the "Landslide" website had been accessed. He would have made the entries after his holidays abroad in May. He could not explain why he would write down the passwords if he had not been the person to access the site. He indeed accepted that "Griff" was a password that he had used on many occasions.
18. He denied admitting the offences in interview, saying that his comments about looking at images from "Landslide" had been misinterpreted. He answered no comment to some questions because he was told by his legal representative not to answer questions specifically about child pornography. In cross-examination he denied having lied to the police. He said he had a healthy interest in sex with preference to young adults. Someone else must have used his details to access "Landslide". When in his interview he said he had looked at images out of curiosity, he was not referring to child pornography. He did not receive sexual gratification from children.
19. In accord with the leave given by the Single Judge, Mr Bennett takes two points primarily directed at the "Landslide" evidence. First, that the material was inadmissible as solely going to an issue of propensity. Alternatively, if he was wrong about that and the material was admissible, the jury were given no adequate direction as to how the material could be used. We start with his submissions with regard to admissibility, and they can be summarised as follows. First, it was not part of the prosecution case that the level 1 images on the new computer had come from a "Landslide" site. Two, the evidence relating to "Landslide" visits was used solely to provide evidence that the appellant had strong tendencies to paedophilia. Three, such was not permissible, since at the time of the trial, evidence of propensity was not admissible, save with certain exceptions which did not apply.
20. In that respect, he draws the Court's attention to two relatively recent decisions of this Court, which themselves are based upon the well-established underlying principle contained in the decision of the Privy Council in Makin v The Attorney Journey for New South Wales [1894] AC 57. Lord Herschell said this, at page 65:

"It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the offence for which he is being tried.... the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

The matter was considered in some detail in a decision of this Court in R v Wright (1990) 90 Cr App R 325, in a reserved judgment given by Mustill J, as he then was. The case concerned a headmaster who was charged with gross indecency. The prosecution introduce incriminating articles in the form of a book and video. The booklet, in particular, suggested homosexual leanings. The video showed homosexual activity between adults. At page 328, Mustill LJ, with some prescience to the recent enactment of the Criminal Justice Act 2003, said this:

"To anyone but a lawyer it might seem obvious that in general this kind of evidence ought to be admitted. Here was a man accused of homosexual activities on the occasions for which he was indicted. He denied having done any such thing, making out the boys to be liars. Why should he be allowed to say this, and what is more, to assert that they were themselves a clique of buggers and yet remain silent about his own proclivities?

Here we find his advisors setting out to conduct the case on the basis that it was immaterial to the questions which the jury had to decide whether he was a homosexual or not, and that nothing mattered except the narrow issue whether he had done the homosexual acts complained of. The appellant's position was therefore that he would say nothing about whether he was heterosexual, homosexual, bi- sexual or asexual. No questions could be asked of him to elicit this information, nor could any evidence (such as the incriminating articles) be layed before the jury might enable them to form an opinion on a matter which surely must have been foremost in their minds. Surely, so it might strike the layman, this cannot be fair.

It is not uncommon to find in judgments a suggestion that a particular proposition might appeal to logician, but not to the ordinary man; or vice versa. In the present instance it might be said that to allow the appellant to run his case in this way would appeal to neither. Naturally we had in mind the rule, now well established for more than a century, that evidence of disposition may not in general be led against an accused person..."

At page 331 the learned judge continued:

"One must begin by asking whether, in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the fast, or could be shown through the possession of incriminating articles or otherwise, to have a leaning towards such acts.

It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value. Nevertheless, this has never been the policy of t he English criminal law, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too greater a risk. It is unnecessary to cite any more authority for this proposition that the oft-quoted opinion of Lord Herschell in Makin v the Attorney-General...."

The learned judge goes on to identify the exceptions that might arise with regard to that principle, prior to the alteration of the law and, in particular, the question whether it might be admissible in cases where the defence was one of accident.

21. That decision in Wright was followed in R v B(RA) [1997] 2 Cr App R 88, where the appellant was charged with indecently assaulting his grandson and evidence of homosexual magazines was admitted. That was held to be inadmissible material. Rose LJ, in giving the judgment of the Court, referred to Wright and expressed the view that it was a decision which should be better known. We shall revert to that decision briefly in a moment.
22. Fourthly, to complete the summary of the argument presented on the appellant's behalf, the evidence was in fact introduced entirely as regards propensity and such is established by the terms of the summing-up. In that respect, Mr Bennett refers to three specific passages in the summing-up. Firstly at page 13:

"So if you take those three pieces of evidence together, Members of the Jury, the extracts from the Landslide database, the credit card statement entries, and the entries in the notebook, the prosecution say that that is powerful evidence that this defendant was accessing child porn websites via Landslide in 1999, and that, say the prosecution, shows that he has an interest in child pornography."

Then at page 14:

"The relevance of this Landslide evidence, say the prosecution, is simply that it shows that the defendant had an interest in child pornography. The prosecution say that not only does he have an interest in child pornography as shown by that evidence but there's evidence that he had lied to you and lied to the police because he denied that it was he who accessed those sites."

Then finally and perhaps most telling, having given the conventional direction with regard to the good character of the appellant, he went on:

"Of course, Members of the Jury, against that you have to set the evidence depending on what you make of it as to his other interest in child pornography. The Landslide evidence, if you were sure it was the defendant who was trying to subscribe to child porn sites on Landslide and the evidence about the videos was suggested names, suggesting under age sex on them, you have to put that into the balance, Members of the Jury, when considering whether his good character means that he's less likely to have committed these offences."

23. Mr Van Der Zwart, for the Crown, challenges the applicant perception of the relevance of the material. Whether or not it went to propensity, he made it plain that the Crown were relying upon it in two respects. Firstly, to demonstrate that the appellant was lying in interview when he asserted that he was not interested in child pornography. His interview contained passages such as the following, and I read from the first page of the opening interview:

"Initially SIMONS is reminded of the reasons for his arrest in relation to offences of attempting to incite in distribution of child and the making of indecent photographs of children. When invited to comment, SIMONS states he is completely shocked and 'gobsmacked' stating he isn't a paedophile and has never tried to distribute, or had an interest in child pornography."

There is a similar exchange at pages 6 and 7 of the interview, where he having had his attention drawn to the titles of the various DVD and videos denies any propensity on his behalf for younger women and states that he viewed the disk believing he was watching people over the age of 18.

24. Secondly, Mr Van Der Zwart says that material was deployed to counter the suggestion that it was mere accident that the activities of a third party led to the images being present on his computer. The prosecution concluded that that submission had to be viewed against the background of his personal details, password and credit card being used to access "Landslide" some years earlier and the record of user names sent to his email address by "Landslide" which are contained in his notebook.
25. In considering these competing submissions it has to be noted, perhaps at the outset, that despite being represented by experienced counsel, no objection was taken to admissibility of the evidence at the trial, either in principle or by reference to section 78. Whilst not remotely determinative, this presents a significant obstacle, particularly with regard to any challenge to the exercise of the judge's discretion. Nor would it appear that the lack of objection was founded on a misunderstanding as to the asserted relevance of this material. The defence requested the judge to give a Lucas direction so that the jury might pause for thought in considering any lie about the use of "Landslide".
26. The approach adopted by the Court in directing the jury is summarised at pages 13 to 14 of the summing-up, where the judge said this, having referred to the "Landslide" database and the credit card statements and the notebook, and asserted that that was on the prosecution's case powerful evidence that the appellant had an interest in child pornography. He goes on:

"The defendant -- defence say, on the other hand, no, firstly, it wasn't him. He's given evidence to say it wasn't him who accessed those websites. In any event it's suggested he wouldn't have subscribed to websites just before going away on holiday... the defence point to the fact that there is no evidence of downloaded child porn images on the computer which the defendant was using at the time....

Well, Members of the Jury, it's a matter for you to consider. You consider all of that evidence and make of it what you think is right. In any event, as the defence points out, this is not the central issue in this case. As Mr Ferm said on more than one occasion, this is not a Landslide case. In other words, there is no evidence that the images that we are directly concerned with - that is the 15 images on the new computer - there's no evidence that those images came from Landslide websites.

The relevance of this Landslide evidence, say the prosecution, [the passage I have read], is simply that it shows that the defendant had an interest in child pornography."

27. To the extent that this is indeed the way in which this evidence was deployed, we are quite unable to accept that it was properly so deployed. Indeed, as we understand it, Mr Van Der Zwart disclaims that the material could be properly deployed in this way. The interrogation of the appellant as to the "Landslide" material should have been excluded from the interview altogether. If the appellant had admitted access to the "Landslide" site, it would not be relevant in any respect to the charges that he was facing. It makes it more no more relevant or admissible simply because he denied it.
28. That circularity of argument is demonstrated by the judgment of Rose LJ in B (RA) to which we have just referred. Towards the end of that judgment, at page 92, Rose LJ said this:

"Mr Bright sought to submit that because, as he claimed, the appellant gave a dishonest answer in relation to his sexual proclivities, it was open to the prosecution to adduce evidence tending to show that he was a homosexual, because that went to credit. The difficulty with that submission is that, if it were correct, a person who habitually burgled house who in interview denied that he ever burgled houses could have adduced before the jury evidence of his previous convictions. That situation would simply not arise because the answers given in relation to proclivities with regard to burgling people's houses would, as it seems to us, properly be excised from the evidence of that which had transpired in interview. So, in the present case, in our judgment, the questions and answers bearing upon the appellant's alleged homosexual proclivities should have been excised from the interview; and there should have been excluded from the evidence which was led before the jury the magazines relating to male adult sexual activity of a pornographic nature which were found in his possession. The reason for this is that neither the answers nor the magazines were probative of anything save propensity; and that, in the judgment of this Court, following the judgment of Mustill J in Wright, is not a proper basis to render them admissible."

29. Although the point was only touched on briefly during the course of argument, it is no answer, in our judgment, that the material could have been deployed in cross-examination under section 1 of the Criminal Evidence Act 1898. First, the material would have been excluded from the interview and therefore would not be led as part of the prosecution case. Secondly, it cannot be assumed that the appellant would have led evidence in this regard. Thirdly, even if he had, he would presumably have denied access to "Landslide" and there the matter would have rested. Fourth, if the question of rebuttal evidence was raised by the Crown, we would regard it as extremely unlikely that it would have been admitted.
30. It strikes us that the material might well have been admissible by virtue of one of the exceptions to the rule in Makin v the Attorney General as being relevant to the issue of accidental making or presence of the photographs. In fact, it was not so deployed in that context, save perhaps with regard to the videos.
31. Even if that was the manner in which the prosecution intended to deploy it, it was certainly not the way in which the jury were directed to consider the material. Even if, as regards the video evidence, it was suggested that it touched upon the question of whether the images that had been obtained accidentally, nonetheless it is necessary, in those circumstances, to consider whether sufficient care had been taken in presenting a material to the jury.
32. In this regard, Mr Bennett rightly refers to the decision in R v Lewis (1983) 76 Cr App R(S) 33, where the applicant was charged with indecent assault and raised offences of accident. At the trial the evidence of his interest in paedophilia was led. This was challenged on appeal. The judgment of the Court was given by Donaldson LJ, as he then was. At page 37 of the judgment, he touched on the manner in which the material had been commented on by the learned judge in the course of his summing-up. Donaldson commented as follows:

"This leaves the question of whether in the exercise of his discretion the judge excluded the evidence. Clearly could have an unduly prejudice effect if true impact and significance was not most carefully explained to the jury."

Then a little bit later on he quotes from the summing-up, which contained the following passage:

"You are entitled to refer to the documents which have you have seen or you've heard about, what you're not entitled to do, members of the jury, is to assume that any way, if you come to the conclusion that he does hold these opinions, we makes these statements or he possesses this sort of literature, that evidence goes to prove these charges of itself, it does not. If there is no adequate evidence that the alleged events occurred, you acquit him, whatever opinion he tolds. If you are satisfied on the evidence the events which the prosecution alleged did occur, then his attitude, opinion, literature, letters may be relevant in considering the effect, first of all what he said to the police about what it then meant and considering whether the matters you are satisfied did occur were accidental or innocent... The fact that a man has certain views, the fact that a man is admitted homosexual for instance, does not mean, that necessarily he's accused of it he's necessary committed an homosexual act with a boy."

33. The complaint that is made in the present case is that the jury were given no indication whatsoever of the significance of the "Landslide" evidence, and was in particular not told that if they concluded that the appellant had accessed the "Landslide" site, that he could not necessarily be viewed as having committed these offences.
34. We agree and indeed, as we understood Mr Van Der Zwart did not really challenge this proposition. The judge did not give an adequate explanation of the significance of the "Landslide" evidence or of the use it could be legitimately be put.
35. We turn, lastly, to the safety of the conviction. The appellant's explanation for the presence of the photographs was at best unconvincing, the more so given the prosecution evidence with regard to Trojan and spam emails. Nonetheless the "Landslide" evidence and the titles of the videos were much at the forefront of the case and very much at the forefront of the summing-up. Its influence on the case was significant. We appreciate the "Landslide" material might be potentially admissible in any retrial pursuant to 101 of the Criminal Justice Act 2003. However, for all the reasons we had adumbrated, we have reached the conclusion that the conviction is unsafe and must be quashed.
(Submissions re: retrial)
36. LORD JUSTICE TUCKEY: We do not think it fair to order a retrial in the criminal case again. We will not order retrial. Nothing we say will or should affect the course of any disciplinary proceedings which are in the process or contemplated against the appellant.
37. My Lord, I understand. Thank you very much.