England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		22 February 2011

LORD JUSTICE RICHARDS:

1. The appellant was tried at Snaresbrook Crown Court, before Mr Recorder Peart QC and a jury, on six counts. During the course of the trial he was acquitted on the Recorder's direction on count 6, which charged him with possession of an extreme pornographic image, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008. At the end of the trial, on 6 May 2010, he was convicted on the remaining five counts, each of which charged him with possession of indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988. He was subsequently sentenced to a community order with a two year supervision requirement. Other consequential orders were also made. He now appeals against his conviction by leave of the single judge.
2. The material that was the subject of the charges was all found at the appellant's home in the course of a police search pursuant to a warrant after earlier efforts to search the premises had been unsuccessful. The search was extensive; it took seven hours and involved going through a very large amount of material. However, it led only to the six counts in the eventual indictment.
3. Count 6 related to a DVD depicting an adult male of large proportions penetrating with his penis the anus of a female child who had not yet achieved puberty. The reason why the Recorder directed an acquittal on that count was his acceptance that there was no evidence that one of the relevant statutory criteria was satisfied, namely that the image portrayed in an explicit and realistic way "an act which results or is likely to result in serious injury to a person's anus" (section 60(7)(b)). As the Recorder explained to the jury, there were no sounds of distress (there was no sound track to the DVD) and there were no obvious signs of distress displayed in the body language of the subject. No expert evidence had been called to suggest that serious injury would be likely to result from the act depicted, and the disparity in size between the man and the female in the image was insufficient to provide a proper evidential basis for conviction.
4. One of the grounds of appeal is that, given the prejudicial nature of the DVD evidence, the Recorder erred in giving the jury the detailed explanation he did of the reasons for the direction to acquit. We do not accept that the Recorder was in error in giving the jury such an explanation. It was much better for him to explain the existence of a sound legal basis for an acquittal on that count than to leave the jury guessing and possibly feeling a sense of grievance at having the count removed from them. It was entirely appropriate for him to inform the jury of the true position.
5. The next question, however, is whether, having directed an acquittal on count 6 and given that explanation, the Recorder ought to have discharged the jury. There was no application by defence counsel for the jury to be discharged. It is submitted on appeal that the Recorder ought nonetheless to have discharged the jury of his own motion. Mr Gray, who appears today on behalf of the Crown, concedes that the jury should have been discharged given the potential prejudice caused in relation to the remaining counts by the jury's knowledge of the subject matter of count 6. We agree that the jury ought to have been discharged. There was, in our judgment, a very real risk of the jury being prejudiced by what they had seen of the DVD in their assessment of the case against the appellant on the remaining counts (counts 1 to 5).
6. Nonetheless, we shall go on to consider counts 1 to 5, noting that if the case was to continue the Recorder plainly had to give the clearest of directions in relation to those counts to ensure that the jury approached them as fairly and correctly as could be in the circumstances.
7. A striking feature of counts 1 to 5 is that all the photographs to which they related are contained in books of photographs of well-known photographers that are widely available from reputable outlets. The books in question are: "The Age of Innocence" by David Hamilton, "At Twelve" by Sally Mann, and "Notes" by Jock Sturges. As was set out in agreed facts at the trial, those books are available for purchase in store or on-line from one or more major retail outlets such as WH Smith, Waterstones, Tesco and Amazon. One of the images in count 3 also appears as the front cover of another published book by Sally Mann, "Immediate Family", a copy of which was also seized from the appellant's home but which did not form the basis of a separate charge. The same photograph appeared in an article in The Guardian newspaper in May 2010 and was published in the on-line edition of that newspaper. Counsel formerly instructed on behalf of the Crown, Miss Oliver, who is unwell and unable to appear at today's hearing, informed the court in a written note of the result of her inquiries in relation to those other matters. She told the court that the publication of the photograph in The Guardian had been brought to the attention of the Crown Prosecution Service, which decided that no charges should be preferred. She also ascertained that the photographs in count 3 have since been on display at an exhibition in London between June and September 2010, where prints were on sale to visitors to the exhibition. Those facts were brought to the attention of the Crown Prosecution Service, which again decided that no charges should be preferred. Whilst that was the position communicated in Miss Oliver's written note, Mr Gray informs us today that there has not been a final decision in respect of those matters, although he accepts that there is no prosecution pending in relation to them.
8. Against that background it is a matter of some surprise that charges were brought against this individual appellant in relation to the possession of the photographs identified in counts 1 to 5. It is legitimate to wonder whether such charges would have been brought against him but for his possession of the DVD which formed the subject of count 6. Be that as it may, the background to which we have referred underlines the importance of the jury in this case being given an accurate and careful direction as to the matters of which they needed to be satisfied before they could convict on counts 1 to 5.
9. That brings us to the first ground of appeal, which focuses on a point identified by the single judge as the principal reason for his grant of leave. It concerns the Recorder's direction on whether the photographs in question were indecent. It is well established that the test of indecency is objective. The jury must decide whether the images complained of would be considered indecent according to "recognised standards of propriety" or "the standard of decency which ordinary right-thinking members of the public would set": see R v Stamford [1972] QB 391 and R v Graham-Kerr (1989) 88 Cr App R 302. Our attention has also been drawn by Mr Gray to the more recent case of R v Niklas [2006] EWCA Crim 2613, where, however, the court did not purport to restate the test laid down in earlier authorities.
10. In his directions to the jury, in the course of setting out the ingredients to the offences, the Recorder said this:

"In the case of each offence alleged in counts 1 to 5 it is for the prosecution to prove that the photographs in question are indecent and that you may think is the allegation which is at the heat of this case.

As you have rightly been told by counsel it is for you to determine whether the photograph in question is indecent. In determining this point you are entitled to consider whether the photograph in question would be thought to be indecent by right-thinking people. Furthermore, in determining this question you are entitled to take into account the age of the subject depicted in the photograph."

A little later, after giving the jury a direction as to the drawing of inferences from the appellant's failure to give evidence at the trial, the Recorder said:

"I have given you that direction, but it may be that ultimately you conclude that nothing he might have said had he gone into the witness box would in fact impact on the issue that you have to decide because it is your decision as to whether these photographs or any of them are indecent. So it is not what he thinks, it is not what the officers who seized the books think, it is not what the Crown Prosecution Service think, it is not what counsel has urged upon you, it is certainly not what I think, it is what you think. Are these photographs or any of them indecent to your minds? That is the issue that you have to focus on in this case."

11. In granting leave the single judge expressed the view that those two passages, taken together, failed to make clear to the jury that they were to apply the recognised objective standard of right-thinking people, not their own subjective view. Miss Bramwell, for the appellant, focuses on that as the central point in her submissions on this appeal.
12. Mr Gray on behalf of the Crown has today conceded that in his directions to the jury the Recorder failed to put the objective standard. He has formulated wording that he submits would have been appropriate by way of direction to the jury. It is unnecessary either to set that out or to deal further with the test, which is well-established.
13. The submission by Miss Bramwell, and the concession by Mr Gray, are in our judgment rightly made. Whilst the jury are representative of the public, and (as it was put in Stamford at page 399C) "are themselves, so to speak, the custodians of the standards for the time being", it remains essential that they consider the question of indecency by reference to recognised standards of propriety, an objective test, rather than applying their wholly subjective views to the matter. That is all the more important where one is considering photographs in books that are widely available through respectable retail outlets and may in consequence be on the bookshelves of many ordinary members of the community. It was also very important in the circumstances of this case, as we have already mentioned, that if the trial was to proceed on counts 1 to 5, following the acquittal on count 6, the jury were warned against being influenced in any way in their evaluation of the photographs in counts 1 to 5 by their reaction to the DVD that was the subject of count 6 and which plainly fell into a very different category.
14. In our judgment the Recorder's direction was deficient in failing to focus the jury's attention with sufficient precision on their task. We have no doubt that the deficiency was a material one. There is a real possibility that, had they been directed to apply the correct test, the jury would have acquitted the appellant on these counts. That is additional to the point we made earlier in this judgment, that in the particular circumstances the Recorder should not have allowed this case to proceed in any event following the directed acquittal on count 6, but should have discharged the jury at that point.
15. For those various reason the appeal is allowed and the convictions on counts 1 to 5 are quashed.
16. The brings us to the question of retrial. Mr Gray has indicated that in the event of our quashing the convictions the Crown applies for a retrial. He submits that it is appropriate for a jury to consider whether these photographs were indecent, that the prosecution was properly brought and that there is no unfairness to the defendant in there being a retrial. Miss Bramwell resists that application for a retrial. She submits that it is neither fair nor in the interests of justice to prosecute the appellant for possession of such photographs which are contained in widely available books.
17. We have no doubt that we should refuse the application for a retrial. In our judgment a retrial is not in the interests of justice. We do not dispute for one moment that the question of indecency of photographs of this kind is one for a properly directed jury. It is, however, very unfair for an individual in the position of the appellant to be prosecuted for possession of photographs which are contained in widely available books. If it is wished to test whether the photographs in the books are indecent, the right way of dealing with the matter is by way of prosecution of the publisher or the retailer, not of an individual purchaser. We have already suggested that the decision to proceed against the appellant may have been influenced by the addition of count 6. It seems to us to be particularly unfair to put the appellant through the trial process again when, for reasons already covered by us, count 6 has long dropped out of the picture.
18. Accordingly, there will be no order for a retrial.