England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PORTSMOUTH
HIS HONOUR JUDGE PEARSON

		Royal Courts of Justice Strand. London. WC2A 2LL
		28/04/2010

The Lord Chief Justice of England and Wales:

1. This is an appeal by the prosecution under section 58 of the Criminal Justice Act 2003 against the ruling on 15 January 2010 by His Honour Judge Pearson sitting at Portsmouth Crown Court that the proceedings against LR should be stayed as an abuse of process. Leave to bring this appeal in order to examine the broad issues to which it gave rise, was granted. Nevertheless, at the conclusion of the argument, the appeal was dismissed. These are our reasons.
2. LR (the defendant) faced a trial on a 20 count indictment. Counts 1-19 alleged that he had made indecent photographs of a child contrary to section 1(1) (a) of the Protection of Children Act 1978. Count 20 alleged possession of such photographs contrary to section 160(1) of the Criminal Justice Act 1988. This count reflected 221 such images.
3. The defendant pleaded not guilty. Part of his case - and it is an important feature bearing on this judgment - was that at least some of the images were of women over the age of 18, who therefore were not children protected by the legislation. As to any images of children, he was not responsible for them, and someone else must have used his computer and the appropriate credit card.
4. After wholly inadequate arrangements were offered to enable the defendant and his legal advisers to examine the material at a police station, on 8 October 2009 argument was developed before the judge about how the defendant and his legal advisers were to be provided with access to the images in order that instructions could be taken from the defendant, legal advice given to him, and the validity, or otherwise, of his defence examined and analysed both for the purposes of advice, and of any trial. It was proposed by the prosecution that access could be achieved by allowing the images to be viewed on a laptop in a conference room at Portsmouth Crown Court. Some of those conference rooms have glass walls, and it was suggested that a police officer should remain outside the room during this process, in sight, and able to maintain some form of control against any possible misuse of the images. It was further suggested that although as close as necessary to the glass to maintain this control, the officer would be unable to hear any exchanges between the defendant and his legal advisers. There was some serious question whether this further suggestion could be correct. In any event, however, even if it were, it would be extremely difficult for the defendant and his legal advisers to have uninhibited and frank discussions, in effect under police supervision, yet nevertheless confident that they would be and remain private. Accordingly the proposal failed the most elementary of tests.
5. Unsurprisingly Judge Pearson rejected it. Instead he ordered that the prosecution should make copies of all 240 images to be prepared for the use of the judge, with the defence to be shown an identical copy, subject, of course, to appropriate undertakings as to the safe custody and control of the images. Thereafter the arrangements for introducing the material before the jury would be subject to further orders.
6. By a letter dated 13 October the CPS gave notice that it would be unable to comply with the order. The case was listed on 7 December. Judge Pearson directed compliance within 7 days, and indicated that in the event of non-compliance the case would be re-listed for consideration whether this constituted an abuse of process.
7. The Crown Prosecution Service and the police were concerned about the potential ramifications of this order. On 10 December 2009 a letter was written to the solicitors acting for the defendant. It was copied to the court. It stated in unequivocal terms that the CPS would not be providing copies of the images.
8. The relevant passages in the letter read:

... the police and/or the CPS would be committing an offence... if copies of the images were made. I accept that CPS and the police may have a defence to any potential prosecution. However I consider that there are public policy grounds for not providing copies of such images to a defence team. I do not consider that the fact that there may be a defence is a good and sufficient reason for the CPS to commit an offence or ask the police to commit an offence. The decision not to prosecute would rest with the CPS. Given that we would have potentially committed an offence, it is difficult to see how there could be a transparent decision made. The position would be entirely dissimilar to one where a CPS employee has committed an offence in a personal capacity, where we have appropriate provision...

Furthermore I do not consider that there can be sufficient safeguards provided by any defence firm to ensure that safe handling, retention and return of illegal images.... public policy requires me not to cause unnecessary images to be made. "

9. In short, therefore, the essence of the objection to the order was, first, that, even if compliance with it did not constitute a contravention of the relevant legislation, it would certainly be inconsistent with it: further, in any event, the safe handling and retention of the allegedly unlawful images could not be assured.
10. No response was received from the defendant's solicitors. Instead, a skeleton argument on his behalf dated 14 December 2009 contended that the non-compliance was an abuse of process.
11. The matter was canvassed before the judge on 11 January 2010. On behalf of the defendant it was suggested that the judge had determined the facilities necessary for the preparation of the defence, and that, unless his decision was obeyed, the defendant would be denied a fair trial. The order was mandatory, not a basis for negotiation and discussion. The CPS was required to comply with it. In relation to the possible prosecution of any employee of the CPS, or anyone else, who complied with the order, there would be an unanswerable defence provided by the relevant legislation, namely, that any person acting in compliance with the order of the court would indeed have a ''legitimate reason" for distributing or showing or having possession of the images.
12. For the Crown it was conceded that those acting for the defendant should have a proper opportunity to take instructions from their client about ail the images which formed the basis for the indictment. The Crown was not seeking to deprive the defendant of his rights to adequate facilities for this purpose. The problem was not with the fact of disclosure for the purposes of legal advice, but with the method of disclosure. It was submitted that the copying and supplying to the defence of the 240 images was not an essential prerequisite to a fair trial. No disrespect whatever was intended to the court, and the Crown was not seeking to gain any forensic advantage whatever from non-compliance. The difficulties created by the order were obvious. Quite apart from the position of any individual employee ordered to assist in compliance with the judge's order, there were additional public policy reasons for not making further copies of indecent images alleged by the Crown to be children. Each image was said to depict sexual abuse, and the Crown owed a duty to the victims of such abuse not to make and distribute copies. No alternative arrangements were proposed.
13. In his careful ruling, Judge Pearson set out the broad context in which the issues arose, and examined in general terms some of the different defences which have been advanced in the context of prosecutions arising from the possession or distribution of images of children. In this particular case the defence was that at least some of the images were not those of children and/or that they were not indecent. This meant that the jury would have to make their own assessment by examining the images, and the preparation of the defence would involve discussions between the defendant and his legal advisers about the basis for his contention that the images were images not of children but adults. Having examined the facilities suggested by the prosecution, the judge concluded that there was serious risk of interference with the confidentiality principle. The conference would take place "in sight and within earshot of the officer in the case". Furthermore, in the event of a trial, the jury would have to be provided with images for the purposes of reaching their verdict. This would take place in the privacy of the jury retiring room, without any form of supervision and the defendant's position should be no worse than that of the jury.
14. The judge addressed the question of the possible prosecution of a Crown employee, acknowledging that the statutory defence depended on the reverse burden of proof, but taking the view that if the material was copied as a result of a specific direction from a judge in the course of conducting a trial, it would be "inconceivable" that anyone acting in compliance with the order would be prosecuted. He concluded that the order he had made as to the disclosure of images was "reasonable and proportionate and the minimum necessary to ensure a fair trial". He therefore proposed to stay the proceedings. He would nevertheless allow the Crown the opportunity to comply with his order of 8th October. Instead, the Crown immediately informed the court of its intention to appeal. It gave the appropriate indication that if the appeal was abandoned or failed, the defendant would be acquitted.
15. We must decide this case on the basis of the situation which obtained before Judge Pearson, the defence not having made any alternative suggestions to the prosecution about how the objective of proper arrangements for confidential discussions with their client could be achieved other than in accordance with Judge Pearson's first order on which the defence relied, and equally, the prosecution not having offered any alternative suggestions to those ordered by the judge. The difficulties which arise in this case could surely have been reduced, if not avoided altogether, if the problems had been addressed in a spirit of mutual co-operation. That said, however, it is an inevitable aspect of cases where issues of this kind arise that, just because the prosecution is in possession of the material, it must propose satisfactory arrangements to enable the defendant to have a sensible and confidential discussion with his lawyers with, in the event of disagreement, the judge deciding whether they are sufficient.
16. The starting point is simple. Orders made by Crown Court judges must be obeyed. The normal consequence of disobedience by the prosecution to an order made by the judge in the interests of a fair trial is either the exclusion of any evidence to which the order relates, or as in this case, where the entire case depended on the 240 images which were covered by the order, the stay ordered by the judge. The cases are likely to be very few and far between where his order is so inimical to the interest of justice that no judge could reasonably have made it, so that the Crown can properly refuse, courteously, to comply, and then challenge the consequent stay by appeal to this court. That, however, is not this case, and indeed is very far from it.
17. Judge Pearson gave all the issues very careful thought, and examined all the arguments advanced by the prosecution, not least the completely unrealistic suggestion that compliance with his order might put employees of the CPS or the police in jeopardy of prosecution. In the absence of any proposals made by the Crown about alternative methods of ensuring that the defendant and his legal advisors were provided with a proper opportunity for a confidential and informed discussion about the images, when such a discussion was integral to the process of a fair trial, we can find no basis for concluding that the order was inappropriate, let alone unreasonable to such a degree that interference with it by this court would be justified.
18. For these reasons this appeal was dismissed.
19. As some fundamental aspects of the administration of criminal justice are engaged, we propose to make some general further observations.
20. The principle that the defendant is entitled to private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS, is too elementary to require citation of authority. In the context of the issue which arises in this case, at such a conference the defendant and his lawyers need access to the material relied on by the Crown. Without such access, first, the defendant's lawyers cannot give him and he cannot receive clear and unequivocal advice about his position, and second, proper preparations for the forthcoming trial in which the very material in question provides the entire basis for the prosecution case cannot be made.
21. Arrangements to provide defence lawyers with the relevant material for the sole purpose of discharging their professional responsibilities to their client, and the acceptance by them of access to such material for this purpose, cannot, in any circumstances, be regarded as criminal. This elementary principle is acknowledged within the relevant legislation. Both the Protection of Children Act 1978 and the Criminal Justice Act 1988 provide defences for solicitors and counsel who for these purposes are in possession of what would otherwise be prohibited material. So. too, does the Sexual Offences (Protected Material) Act enacted in 1997, but not yet in force. The same defences would be available for the jury at any trial. So far as the legal advisers are concerned, it is normal to invite undertakings in relation to the retention and control of such material, which are readily given, and, as far as we know, have never yet been broken.
22. Lawyers and jurors alike must be trusted to act in good faith, unless and until there is some reason to suggest that they are deficient in any respect. They are provided with the material for a very limited and strictly defined purpose. Possession and use outside these limited purposes is unlawful, and would put them in peril of prosecution. Thus, at the risk of stating the obvious, no further hard copies or digital copies beyond those necessarily required for the purpose of the conference (or indeed a trial) should be made. All the material must be returned to the custody of the Crown Prosecution Service when the relevant trial has concluded.
23. The reality is that there have been many prosecutions for possession of prohibited material involving children, and largely, and effectively, all the necessary arrangements for the preparation for trial and privileged communications have been made. The material may take many different forms, and the facilities available at different courts for examination of such material will also vary. There may be occasions when even if the defendant is remanded in custody, it will be necessary for the material to be provided in the form of a CD for use in a laptop for a confidential discussion between the defendant and his lawyers in prison. However, if the defendant is remanded in custody, the necessary arrangements may also be made at a nominated police station or at the court itself. If so, appropriate bail orders, subject to strict conditions, may be made. With the technology currently available, and its sensible deployment, it should be possible for lawyers to have access to the material using the technology, without hard copies being made, and without any risk that there might be some accidental or inadvertent, let alone deliberate destruction of the material on which the prosecution relies. It may be, and we understand that in some cases it is also possible, for a clean computer to be provided by the police for this purpose.
24. We do not intend to be prescriptive. The processes should ensure that when issues like the present arise, or where, for example, in the event of a guilty plea, there is a dispute about the nature and gravity of the material, it should be made available for examination in circumstances of confidentiality between the defendant and his lawyers, and at the same time, for all those properly involved to understand that although this limited possession is protected, if the Crown's case that the material is indecent for the purposes of the protected legislation were correct, any circulation or continued possession beyond the strictly limited purposes for which it is made available would be criminal.