Jersey Unreported Judgments

Application for leave to appeal against the conviction at Inferior Number Trial.

[2014]JCA055

Court of Appeal

3 March 2014

Before     :

The Hon. Michael Beloff, Q.C., President; Sir John Nutting, Bt., Q.C., and; John V. Martin, Q.C..

Thomas Lekkerkerker

-v-

The Attorney General

Application for leave to appeal against the conviction at Inferior Number Trial of the Royal Court on 6^th September, 2013 on:

2 counts of:	Making indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Counts 1 and 3).
1 count of:	Attempting to make indecent photographs of children, contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 (Count 2).

Advocate O. A. Blakeley for the Appellant.

R. C. P. Pedley, Esq., Crown Advocate.

JUDGMENT

nutting ja:

INTRODUCTION

This is the judgment of the Court.

1.        On 5^th September, 2013 after a trial lasting four days before the Deputy Bailiff and Jurats, Thomas Lekkerkerker was convicted on two counts of making indecent photographs of children contrary to Article 2(1)(a) of the Protection of Children (Jersey) Law 1994 ("the 1994 Law") and one count of attempting to do so.  On 23^rd September, 2013 he filed notice of his intention to apply to this Court for leave to appeal his conviction.  Subsequently, on 12^th November, 2013, a Sentencing Hearing took place before the Deputy Bailiff and Jurats at which the Appellant was sentenced to 3 years' imprisonment concurrent on each count: he has not applied to have his sentence reviewed by this Court.

2.        We heard the Appellant's application for leave to appeal his conviction on 26^th January, 2014 and allowed it.  On 31^st January we dismissed the appeal.  We now give reasons for our decision.

THE LAW

3.        Article 2(1)(a) of the 1994 Law is, materially, to the following effect:-

"Article 2(1) A person who

(a) .......makes, any indecent

photograph......of a child;

........

is guilty of an offence.

4.        Article 1 defines a child as "a person under the age of 16 years."

5.        The grounds for allowing an appeal against conviction are set out in Article 26 of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law"):

"26 Determination of appeals in ordinary cases

(1) Subject to the following provisions of this Part, on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the following provisions of this Part, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction, and direct a judgment and verdict of acquittal to be entered."

THE FACTS

6.        The facts on which the convictions were based can be stated shortly.

7.        In the early hours of 15^th March, 2012 police officers seized computer equipment from the Appellant's home.  Electronic data storage devices, or Hard Drives, extracted from the equipment were examined forensically and reports were compiled revealing the nature of the data then, or previously, stored on them.

8.        The reports revealed that the Hard Drives contained hundreds of pornographic pictures and films.  The majority was "legal" pornography; but 8 films were selected by the Crown as constituting indecent images within the meaning of Article 2(1)(a) of the 1994 Law.  These were extracted from what were called at the trial the Stored Files.  They formed the basis of Count 1.

9.        In addition, the Hi-Tec forensic investigators of the States of Jersey Police discovered some software log files, used by a file-sharing program known as E-Mule on a Hard Drive itemised at the trial as D/1.  The E-Mule system allows a user to download photographs and films from other E-Mule users via the Internet.  The films had been deleted so that they could no longer be viewed but the titles of nearly 1500 were recovered and just under 10% were indicative of illegal content.  Because such material may not, absent proof of what each contained, necessarily reflect the name or title, the Crown decided to charge the Appellant with attempting to make indecent photographs.  The films in respect of which these attempts had been made were known at the trial as the Suspect Files.  The count of attempt reflecting them was Count 2.

10.      Later the investigators selected from E-Mule, a total of 7 films which had been previously downloaded [i.e. "made" for the purposes of Article 2(1)(a)] onto a Hard Drive but later erased. Having obtained the necessary permission from the Attorney General, the investigators downloaded the films in order to view them.  Later the Appellant was charged in respect of those films.  This material was described at trial as the Duplicate Files and formed the subject matter of Count 3.

11.      In relation to the ages of the children depicted in the material, the limit of the admissions on the Appellant's behalf at trial was to the effect that the children in Counts 2 and 3 were aged between three and twelve years.

12.      The Appellant worked for Newtel, an Internet Service Provider, as a customer support officer.  An erasing programme, East Tec Eraser, was found installed on one of the computers recovered.  It was set to run on the computer tower to wipe unused disc space and to scramble deleted films.  This programme had apparently been used to erase pornographic material to which no prohibition attached as well as illegal material.

13.      Notwithstanding the use apparently made of this programme by the Appellant, the Crown was able to show the specific dates on which the material in Count 1 had been downloaded, although, because of the number of films referred to in the count, it was drawn between a fifteen month period of 27^th December, 2010 and 15^th March, 2012.

14.      However, in relation to Count 2, the Crown was not able to show with the same precision the dates on which the attempts to download the material had been made and although the bracket of time, specified in that count, was the same 15 month period, it was the Crown case, based on the Hi-Tec investigators' evidence, that the attempts had actually been made over a narrower, five month period, between 15^th October, 2011 and 14^th March, 2012.

15.      So far as Count 3 was concerned the Crown was limited in its ability to prove more than an outside bracket of dates.  This constituted an 18 month period between 1^st October, 2010 and 15^th March, 2012.

16.      Having been arrested on 15^th March, 2012, the Appellant was interviewed; and then re-interviewed on 29^th August, 2012.  He revealed little about his activities concerning the downloading of illegal indecent material but, at the conclusion of the first interview, he said: "I am not like this, it's not me. It was just a stupid mistake. I don't do this. I'm not a paedophile, I am not that way. I don't know why I do this."

THE ISSUES IN THE APPEAL

The first issue

17.      At trial the Appellant did not give evidence.  As we have indicated, the Crown Advocate and Advocate Blakeley drafted a list of formal admissions including the concession by the Appellant that he had downloaded all the films in question.  But he asserted through Advocate Blakeley, who also represented him in this Court, firstly, that, although in respect of the E-Mule counts (Counts 2 and 3), most of the titles plainly indicated the ages of the children in question, in relation to Count 1 he disputed that any of the children in the 8 films were under 16 years of age and put the Crown to proof.  He also sought to call evidence from a paediatric endocrinologist whose evidence the Deputy Bailiff allowed to be adduced in part only.  By way of appeal to this Court, the Appellant maintains that the Deputy Bailiff was wrong to refuse him permission to call all the expert evidence which he wished to adduce, ("the expert point") and requested this Court to quash the conviction on Count 1.

The second issue

18.      Advocate Blakeley submitted to the Royal Court at the close of the Crown case that in respect of all three counts, the Crown was obliged to prove that the offences had been committed within the jurisdiction and that it had failed to call sufficient evidence to justify a conviction.  The Deputy Bailiff ruled against this submission.  Advocate Blakeley repeated the submission to the Jurats in his closing speech, as he was entitled to do.  Accordingly, as a further ground of appeal, the Appellant asserted that the convictions on all three Counts should be set aside on this ground, ("the jurisdiction point").

The third issue

19.      A final ground of appeal also applicable to all Counts and allied to the last ground related to the direction which the Deputy Bailiff gave to the Jurats as to how they should approach some alleged lies told to the police by the Appellant to bolster the evidence, as the Deputy Bailiff suggested, that the making of the indecent material had been done in Jersey, ("the Lucas lies point").

20.      We deal with these issues seriatim.

THE EXPERT POINT

21.      Article 2A of the 1994 Law provides: "In proceedings under this Law relating to any indecent photograph of a child 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 or she was then under the age of 16 years."

22.      On 30^th August, 2013, an interlocutory hearing took place before the Deputy Bailiff.  It was convened to enable him to decide the admissibility of the expert paediatric evidence which the Appellant sought to adduce.  The application was resisted by the Crown.

23.      As a general rule, in a criminal trial evidence is not admissible with regard to anything not immediately within the knowledge of the witness.  This rule excludes, inter alia, expressions of opinion or belief save in respect of the evidence of a person who is qualified to express an opinion on the subject in which he has recognised expertise; see R v Silverlock [1894] 2 QB 766.

24.      Thus the opinion of an expert is admissible to furnish the court with information "which is likely to be outside the experience and knowledge of the tribunal of fact"; per Lawton LJ in R v Turner (1974) 60 Cr. App. R. 80 CA @ 83.  In that case the judgement continues:-

"If on the proven facts a Judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."

25.      During the course of the twentieth century, the list of topics on which expert evidence has been given has increased significantly and, in the last fifty years, the Court of Appeal has given guidance on the theme in cases as disparate as obscenity (see DPP v A. and BC Chewing Gum Ltd [1968] 1 QB 159 and R v Skirving [1985] 81 Cr. App. R. 9, CA), facial mapping (see R v Stockwell [1993] 97 Cr. App. R 260, R v Hookaway [1999] Crim. L.R. 750, CA and R v Atkins (Dean) and Atkins (Michael) [2010] 1 Cr App R 8, CA), and cases involving indecent photographs of children (see R v Land [1998] 1 Cr App R 301, CA).

26.      However, during the same period of time, an expert was not generally permitted to give his opinion on the very issue, the "ultimate issue", which the Jury had to determine.  In certain cases, of course, notwithstanding this prohibition, the evidence of the expert, depending on the circumstances of the prosecution, effectively provided an answer to that very question. In a situation where, for example, fingerprint evidence is critical to a resolution of the case, the expert may not be encouraged to identify the defendant by saying in express terms that the fingerprint of the defendant was on the object in question; but his evidence of the uniqueness of fingerprint evidence, the number of ridge characteristics required for presentation of fingerprint evidence in court and the number of ridge characteristics in common between one of the defendant's fingers and the print in question, in terms of a positive identification of the defendant, may well constitute a distinction without a difference.

27.      In R v Stockwell [1993] 97 Cr. App. R. 260, the first reported facial mapping case to come before the Court of Appeal in London, Lord Taylor LCJ recognised this problem.  It was a case in which the Crown sought to call an expert to identify the defendant, who had disguised himself for the purpose of committing a series of robberies, from facial photographic evidence taken during the course of the robberies.  Lord Taylor, having quoted the passage above from Turner continued at p. 263:-

"It is to be noted that Lawton LJ there referred to a jury forming their own conclusions "without help." Where, for example, there is a clear photograph and no suggestion that the subject has changed his appearance, a jury could usually reach a conclusion without help. Where, as here, however it is admitted that the Appellant had grown a beard before his arrest and it is suggested further that the robber may have been wearing clear spectacles, and a wig for disguise, a comparison of photograph and defendant may not be straightforward. In such circumstances we can see no reason why expert evidence, if it can provide the jury with information and assistance they would otherwise lack, should not be given. In each case it must be for the judge to decide whether the issue is one on which the jury could be assisted by expert evidence, and whether the expert tendered has the expertise to provide such evidence."

28.      It is clear from the judgment that the court accepted that the evidence was admissible notwithstanding that it provided a direct answer to the issue in the case which was the identity of the robber.

29.      In R v Gokal [1997] 2 Cr. App. R. 266 it was held to have been permissible for an accountancy expert who gave evidence in relation to transactions of great complexity to have expressed the opinion that the arrangements were such as to demonstrate dishonest collusion between various parties to the transactions.  It had been conceded that it was proper for him to say that the mechanics of the arrangements were such that there could have been no legitimate purpose to the transactions. In admitting the evidence, the court said that the distinction between this and saying that there was dishonest collusion was one without a difference.  It should be noted, however, that the dishonesty of the transactions did not go directly to the issue of the guilt of the defendant in that case where the defence was not so much that the transactions were honest, but that if there was a fraud, he was not part of it.

30.      The editor of Archbold comments in the 2014 Edition at paragraph 10-51:-

"It must be at least doubtful if such evidence would be allowed to be given where it goes directly to the honesty of the defendant. The line may be a fine one, but the evidence of the expert should be confined to his area of expertise; in this case, that was accountancy, not honesty.

31.      The case of Land concerned Section 2(3) of the Protection of Children Act 1978 which in terms is indistinguishable from Article 2A of the 1994 Law.  It was a case in which the Appellant submitted that expert evidence relating to the age of each child should be called by the Crown in prosecutions under that section of that Act.  Judge LJ (as he then was) who gave the judgment of the court said:-

"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."

Judge LJ continued:-

"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 old."

32.      In a carefully researched and considered judgment delivered after the hearing on 30th August, 2013, the Deputy Bailiff reminded himself of the some of the principles which we have rehearsed above and referred to what the Bailiff (Deputy Bailiff as he then was) said in Attorney General v Goss [2005] JLR Note 26, that in this jurisdiction expert evidence would in general only be admissible if the evidence related to matters of which the tribunal of fact could not be expected to be aware from their own knowledge.

33.      The Deputy Bailiff also reminded himself of the salutary lesson to be derived in this area of the law from the case of U v Attorney General [2011] JCA 062 in which a jury faced a similar question in having to decide whether the images depicted were of a person who was or was not under the age of 16 years.

34.      On the facts of the case, and in respect of many of the images, the jury concluded that those children depicted were under that age and accordingly convicted the defendant.  Subsequently the identities of some of the children were ascertained and it was established that they were in fact over the age of 16 years at the relevant times.  Accordingly the convictions on the relevant counts were later quashed by this Court.

35.      Advocate Blakeley submitted to this Court that the case of the U v Attorney General pointed to the difficulties for any tribunal of making an accurate assessment of the age of a child and, in advance of the trial, he had instructed Professor Martin Savage, the paediatrician whom he consulted, to compile a report.

36.      Professor Savage's report contained this passage:-

"My aim in viewing these eight videos was to assess the ages of the participants based on their physical maturity and specifically on their stages of secondary sexual development. It must be appreciated that there is a very wide range of normality related to the ages at which certain stages of physical development are reached. For example a normal Caucasian female can reach full or complete development, i.e. stage 5 breast development (based on the Tanner stages of development; stage 1 immature, stage 5 fully mature) at any age between 11 years 9 months and 16 years 6 months, the average being 14 years 3 months. The degree of development is controlled by the production of oestrogens by the ovaries. Full breast and nipple development indicates adult concentrations of oestrogens in the blood.

Similarly, a normal male can reach full maturity, i.e. stage 5 development of external genitalia at any age between 12 years 6 months and 16 years 6 months, the average being 14 years 6 months. Full development indicates adult concentrations of testosterone in the blood."

37.      In the light of the above, Professor Savage ends his report "....it is not possible to say whether they [the children in the 8 films] were aged above or below 16 years."

38.      A number of matters arise in relation to these passages. Firstly Professor Savage cites the stage of full sexual development to which an age bracket can be applied by reference to male and female Caucasian children: the children in the 8 films concerned in Count 1, who were in fact all female, were black and/or Asian.  Secondly the bracket of age at which Caucasian girls reach sexual maturity, according to the Professor is, as he acknowledged, "very wide" i.e. at any time within a 57 month period prior to 16 years and 6 months, the terminal date, the average being 21 months prior to the 16th birthday.  For Caucasian boys the comparable bracket is 48 months prior to 16 years and 6 months, the same terminal date, the average being 18 months prior to the 16th birthday.  Thirdly, the Professor's conclusion is entirely consistent with the difficulty, as he described it, of making an assessment of the ages of the children in the images concerned based exclusively on sexual development.

39.      In his ruling the Deputy Bailiff decided that there was a distinction to be drawn between evidence which defined particular stages of sexual maturity on the one hand, including statistical ranges of such maturity, and "the expression of an opinion in relation to the particular images which are before the court" on the other.

40.      Accordingly he held that, in his view, the case of Land provided no impediment to allowing the Jury to hear some of the evidence in the Professor's report.  But he was understandably, and rightly, troubled about the relevance of other parts of it.  And he concluded that the Professor should not be allowed to describe his own reaction to the question how old were the children concerned.

41.      He expressed his ruling thus:-

"In principle, it seems to me that Professor Savage can give some evidence in this case if the defence choose to call him.

The areas of difficulty which I have however in relation to the report which I have seen are these.  First of all the report describes the range of sexual maturity for normal Caucasian males and females. I do not know why that reference has been made. The images in question in this case are apparently of Asian and African males and females [the Deputy Bailiff was referring to counts other than Count 1]. If expert evidence is to be given, it seems to me that it is appropriate for the expert to be able to give evidence to the Court about the ages of sexual maturity for Asians and Africans rather than Caucasians. The fact that, for myself, I do not know whether there is any statistical difference between Caucasians, Asians and Africans in this respect and if so what those differences might be, is testament to my conclusion that this is information which is outside the normal experience of the Court or jury, and, accordingly, such evidence is theoretically admissible as expert evidence.

Secondly however, I do not consider that it is open to Professor Savage to give evidence of his opinion as to whether it is possible to say that these particular images are of persons above or below the age of 16 years. That is not a matter for expert evidence, but is the matter on which the Court must reach its own conclusion. As was said in the case of R -v- Michael Land, the Jurats are "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 old". In doing so, they would have regard to all the evidence, including the admissible evidence of the expert.

If the Defendant wishes to call Professor Savage to give evidence, it must therefore be subject to the caveats which I have mentioned above."

42.      In the light of this ruling, Advocate Blakeley, having requested the whole loaf of Professor Savage's report, considered that it had been so reduced in size by the Deputy Bailiff's ruling that it was not worth serving to the Jurats.

43.      However, Advocate Blakeley sought to persuade us that the Deputy Bailiff should not have ruled as he did.  He asked us to hold that Land was wrongly decided and should not be applied in this jurisdiction.  Having heard his arguments, which he expressed with his customary forensic brio, we concluded unhesitatingly that the Deputy Bailiff's ruling cannot be faulted.

44.      Without deciding whether in any future case an expert can give admissible evidence as to the age brackets at which boys and girls reach sexual maturity and what the parameters of admissibility might be, on which we heard no argument, we are clearly of the view that any such statistical evidence must be referable to the ethnic/racial origin of the children in the photographs concerned, as a minimum condition of admissibility.

45.      It is also pertinent, as noted above, that the age bracket at which Caucasians children reach maturity, according to Professor Savage, who, we assume, was speaking of a generally recognised yardstick, is so wide that such evidence is unlikely to be helpful to any tribunal of fact.  We have in mind, particularly, what Lord Judge (as he now is) said in Land as to the unique pace of sexual development in any child.

46.      But in this jurisdiction, as on the mainland, the relevant legislation imposes on the tribunal concerned, Jurats or jury, the task of finding proved whether the child is, or is not, under the age of 16 years.  Thus, in our view, no witness should be allowed to give his or her opinion on this issue in cases under Article 2(1)(a) of the 1994 Law because, in relation to the individual child in the image concerned, whose individuality Professor Savage was also at pains to emphasise, the only relevant evidence which can surely be given on the issue of age is the actual age of the child in question.

47.      If the identities of the children depicted in Count 1 had been known, their ages could, no doubt, have been established by calling each child to give their age (assuming capacity to testify) or by calling one of the parents or by a number of other routes.  But absent such evidence, the Jurats had to make their own assessment of the age of each child, at least insofar as they had to decide whether they were sure that any child was under the age of 16 years.  No expert evidence could be called on that issue.  Professor Savage is an expert, inter alia, on the sexual development of children: he is not an expert on the ages of the children in the images concerned.  Thus if he had sought to say that in his opinion the girls in Count 1 were over 16 years of age, that evidence would have been inadmissible. In our view it would have been no less admissible if the Professor had given it as his opinion, as he sought to do, that he was unable to be sure that the girls in question were under 16 years of age because, by reference to the burden of proof and albeit by a different verbal route, he would have been providing the Jurats with a suggested resolution of the very matter which they had to find proved.

48.      We add this coda.  Professor Savage's evidence was confined to the state of sexual maturity of the children in the relevant material and nothing else.  The Jurats were not so limited in their assessment.  They were able to consider the general appearance of each girl, how each behaved when being filmed, how each moved, how each reacted to what was being done to them, their facial expressions and physical reactions.  The Deputy Bailiff expressed it thus:-

"The Crown say that the issue for the Court on Count 1 is whether any of the girls shown in the eight films was under the age of 16. You have viewed the films. It is your assessment of whether the Crown have satisfied you so that you are sure that at least one of the girls was under the age of 16 that matters. It is well known that each individual reaches sexual maturity in his or her own time and you need to recognise that when considering whether the appearance or bearing of any of these girls in the films is such that you can be sure, as the Crown contends, that she is under 16. If you think they all are, or might be, aged 16 or over, you should acquit.

In considering this issue, you should ask yourselves whether, in the case of girl or girls you may think are under 16, their actions or bearing are influenced by the fact that they must have been aware that they were being filmed and whether this has any impact on your assessment. You should consider, for example, whether the wearing of long white socks might influence you in thinking that the girl in question is under 16 notwithstanding she might in fact have been over 16. These and other factors, using your experience and common sense, you must apply to the question on which the Crown must satisfy you so that you are sure, namely whether the girls, whether any one of the girls, was under the age of 16."

THE JURISDICTION POINT

49.      Advocate Blakeley's submission in the Royal Court and to this Court was that it was necessary in a prosecution under Article 2(1)(a) of the 1994 Law for the Crown to prove in respect of each "making" alleged in the Indictment that the Appellant did the act in Jersey.  As Advocate Blakeley expressed it in his Grounds of Appeal para 14: "For the prosecution to succeed, it needed to produce evidence which included evidence to establish to the criminal  standard that the acts which constituted the offences charged (the actual reus) were carried out in Jersey."

50.      He submitted to the Deputy Bailiff at the close of the prosecution case that the Crown had failed to do so.  The Deputy Bailiff overruled his submission and, in the light of the verdicts, Advocate Blakeley repeated that submission to this Court.

51.      Unfortunately the attention of the Deputy Bailiff was not directed by either side to a relevant authority which he might well have found persuasive on the point.  That is the case of R v Penner [2010] EWCA Crim 1155.  Like the instant case the prosecution in Penner concerned indecent images extracted from a computer and the defendant was prosecuted under legislation on the mainland which, as emphasised above in relation to Land, is indistinguishable from Articles 2(1)(a) and 2A of the Jersey legislation.  In Penner, too, as in the instant case, the defendant said little that was material in interview and gave no evidence at his trial.  In each case, also, neither defending advocate considered raising the issue of jurisdiction until the trial was underway.  In each case submissions were made at the close of the Crown's case to the effect that the Crown had failed to prove that the images were made, in the one case in England or Wales, and in the instant case, in Jersey.  In each case the trial judge overruled the submission.  In each case there was no evidence that the images had been made outside the jurisdiction concerned.

52.      In Penner, however, in contrast to the instant case, the Court of Appeal had been misled into thinking, in advance of the hearing, that there had, in fact, been some evidence given at trial to the effect that the computer containing the indecent images of children had been used abroad and specifically in Canada.  Leave to appeal had, therefore, been granted on a false basis. In giving judgment Thomas LJ (as he then was) said @ para. 14:-

"The reason why the court would not have granted leave, had it known the true facts, is obvious. First of all, there was clear evidence before the jury that the computer was in the possession of the appellant. The appellant did not give evidence at all to explain or give any account as to how the images might have come onto the computer. As the computer was found in his possession without any explanation, it was plainly open to the jury to infer, in the circumstances of the case, that he had downloaded the images.

The second question that then arose was: was there any evidence to show that the images had been downloaded in the United Kingdom. It was an obvious inference, in the absence of any evidence that the computer had been taken out of the United Kingdom, that the images had been made in the United Kingdom. Leave to appeal was therefore granted by this court, it is now apparent, on a wholly false premise, namely there was evidence that the computer may have been used in Canada. Therefore the appeal must be dismissed. There was plain evidence before the jury on which this appellant was rightly convicted."

53.      We respectfully endorse this authority and apply it to this jurisdiction. It is good sense and good law that there was in the instant case an obvious inference, absent evidence of any kind that the images had been made by the Appellant elsewhere, that they had indeed been made within the Bailiwick.

54.      Moreover, such evidence as there was in the case supported this inference.  Firstly, the formal admissions recorded that the Appellant earned his living in Jersey as an employee of Newtel and had done so during the whole period of time covered by the Indictment.  Secondly, the admissions acknowledged in Admission 4 that "at the relevant times he [the Appellant] lived at Flat 2, Honduras, 16 Windsor road, St Helier." This was, of course, where D/1 and all the other computer equipment had been found. Thirdly, there was evidence about that equipment itself.  The D/1 hard drive was a Hitachi DS75AC100 SATA hard disk drive.  It was an internal drive, designed to reside within the tower of a desktop computer system; indeed, when it was seized by the police it was within the tower of a Dell system at the Appellant's home.  Although a hard drive of this nature can be removed from a tower and used in another system, it is not designed to be portable: it has no protective casing, since it is designed to be protected by the structure of the tower, and it is not easily connectible to a laptop or other portable device.  In these respects, it differs from other drives found at the Appellant's home, in particular two Buffalo external hard drives, which are designed to be portable storage devices and have protective casings and USB connectors to allow easy connection to any computer.  Although it would be possible for a person with knowledge of computer hardware (which the Appellant no doubt had) to remove the D/1 drive from the tower and use it outside the system of which the tower formed part, it is less likely that such a person would do so than that they would use a drive (such as one of the Buffalo drives) that was designed to be portable.  In those circumstances, it is reasonable to infer that the D/1 drive was at relevant times housed in a static computer system, and that that system was at the Appellant's house or place of work.

55.      These were all matters which the Deputy Bailiff, at the close of the Crown case, and the Jurats during the course of their deliberations, were entitled to consider as evidence particularly relevant to the question where the images were made.

56.      But the evidence was not thus confined.  Just as the above evidence was present to support the "obvious inference", so there was no evidence to contradict that inference (which, had it existed, it would have been open to the defence to proffer).  There was no evidence, for example, that the Appellant had left the jurisdiction during the 18 month period referred to in the Indictment.  This period, of course, included the unknown dates of "making" the photographs in Count 2 and defined the whole period in relation to the unknown dates of "making" in Count 3.  And there was no evidence that on the known dates embraced in Count 1, the Appellant was elsewhere than the place described in Admission 4.

THE LUCAS LIES POINT

57.      The conclusions we have reached on the "expert" point and those we have reached on the "jurisdiction" point should, without more, have determined this appeal.  However Advocate Blakeley made a further submission in relation to the direction which the Deputy Bailiff gave on what he suggested may have been lies told by the Appellant in interview.  This submission is tied to the submission on jurisdiction because the Deputy Bailiff concluded that, if the Jurats were satisfied that the Appellant had lied to police, they were at liberty to conclude that the lies had been told to conceal guilt, including guilt on the question where the material in the three counts had been made for the purposes of Article 2(1)(a).

58.      When the Deputy Bailiff ruled on the submission at the close of the Crown case, he justified leaving the case to the Jurats in part on the basis described above.  And when he came to sum up the case to them in relation to Advocate Blakeley's point on jurisdiction, he said:-

"In considering this issue, there are two other points you may wish to consider. First, at the question and answer interview, which is page 8 of tab 5, there was this exchange. Police Officer: "Ok and tell me your computers and your laptops, are they secured with passwords?" The Defendant: "I have no idea." "And when you log onto your computer? "I'm not aware of anything, so ..." Police: "Ok and is that the same for your laptop?" "I've no idea, no not aware of anything like that."

You may wish to ask yourselves whether this last answer in particular indicates that the Defendant was lying to the police at this time and, if so, whether any such lie would support the view he had something to lie about, namely his downloading in Jersey of illegal material. In this connection, I must give you this direction. You are entitled to consider whether any lies which you find have been told by the Defendant support the case against him. In this regard, you should consider two questions. First, you must decide whether he did in fact deliberately tell lies. There is a further passage of the question and answer interview on page 9 which you will read when you retire, that is the whole of page 9, which you may think shows that the Defendant was not lying. It is a matter for you.

If you are satisfied so that you are sure he did lie, then you must go on to consider the second question: why did the Defendant lie? The mere fact that a defendant tells a lie is not of itself evidence of guilt. A defendant may lie for many reasons. They may possibly be innocent lies, in the sense that they do not denote guilt, for example, lies to bolster a true defence or to protect somebody else or out of panic, distress or confusion. If you think he was lying to the police as to his knowledge of passwords to enter his computer or laptop, perhaps for example, because he did not want the police to go onto the next questions, which would relate to the East-Tec Eraser program starting to work on the machine being rebooted, then his lies could be regarded by you as supporting the Prosecution case against him. The essential thing is that the lie, if that is what you are sure it was, can only be held against the Defendant is you are satisfied so that you feel sure it was not told for an innocent reason.

The other point you may wish to consider is Admission 38, which ends with the Defendant's statement "I don't know why I do this." What does "this" mean and is it consistent with an assertion that nothing illegal has been done in Jersey? Well, it is important that you look at the whole of Admission 38, so you look at the whole of the statement in its proper context. If the Admission is inconsistent with an assertion that nothing illegal has been done in Jersey, that would go against the contention of the Defence that the Crown has not satisfied you so that you are sure the downloading had taken place in Jersey. Alternatively, do you think these words go only to the question of the Defendant's knowledge as to what he was downloading or possibly downloading? If you think that, then the words he said would not support the Crown case that the downloading took place in Jersey. This is a matter for you as Judges of fact."

59.      Advocate Blakeley submitted that the chain of reasoning suggested by the Bailiff was erroneous and that even if the Appellant had lied, those lies could not be taken by the Jurats as evidential material to repair the gap in the Crown's case created by their failure to prove that the Appellant had made or attempted to make indecent images of children in Jersey.

60.      In the passage quoted, the Deputy Bailiff gave an impeccable "Lucas" direction on lies.  The Lucas direction applies in cases where it is important that the tribunal makes use of any lie, which it concludes an accused may have told, in a way which does not prejudice the accused inappropriately.  The essence of the warning is that the tribunal must not use the fact of the lie as evidence against the accused unless the tribunal is sure that the lie was told for the purpose of concealing guilt.  In this context the essence of the Deputy Bailiff's direction is contained in the sentence already quoted:-

"If you think he was lying to the police as to his knowledge of passwords to enter his computer or laptop, perhaps for example, because he did not want the police to go onto the next questions, which would relate to the East-Tec Eraser program starting to work on the machine being rebooted, then his lies could be regarded by you as supporting the Prosecution case against him. The essential thing is that the lie, if that is what you are sure it was, can only be held against the Defendant is you are satisfied so that you feel sure it was not told for an innocent reason."

61.      In our view what the Deputy Bailiff said additionally in his summing up starting with the words "the other point..." in relation to lies constituted a misdirection.  The point at issue was not whether the potential lie supported the prosecution case in a general sense, but whether it was told in order to conceal guilt.  There was no evidence on which the Jurats could have justified the conclusion that the Appellant may have told any of the lies which the Deputy Bailiff summarised, in order to conceal the fact that he had downloaded the material in Jersey.  There was no warrant for the conclusion that the Appellant was focusing his mind at the time of interview on the jurisdictional contrast between having done so here as distinct from abroad.  There was no evidence that the Appellant was aware of the significance of where the downloading occurred.

62.      In so far as the various phrases and assertions identified by the Deputy Bailiff could be taken to be lies, it is clear to us that what was in the Appellant's mind was the fear that the police would discover the nature of the films which had been downloaded onto his computers and that he had downloaded them.

63.      If, indeed, he had been aware of the importance of the location where the downloading had taken place, one might have expected him to have claimed to police that the images had been downloaded abroad and if, indeed, the Crown had been able to prove at trial, prima facie, that he had reported for work every day during the relevant time, such a lie could have been taken by the Jurats to bolster the accuracy of the records and to indicate that the Appellant was lying to conceal the fact that, in truth, he had downloaded the images in Jersey.

64.      The question of concealment of guilt is a subjective one and in this case, as in every case, it was important to analyse what was the nature or aspect of guilt which this accused may have been trying to conceal.

65.      Having determined that the Bailiff's decision on the admissibility of the evidence of Professor Savage was a correct decision (the expert point), we declined to quash Count 1 on that ground.  We further considered what was the effect of the failure of the Deputy Bailiff (albeit because a relevant authority was not cited to him) to direct the Jurats in accordance with the principles of Penner, (the jurisdiction point).  Since this failure was to the advantage of the Appellant and since the evidence on this, the jurisdiction point summarised above, was all one way, we dismissed the appeal in respect of all three Counts on this ground.

66.      We then considered what was, or may have been, the impact of the misdirection concerning Lucas lies on the deliberations of the Jurats within the context of the case as a whole.  We concluded that the impact was at best minimal.  In the round, the evidence in this case was overwhelming and a conviction on the evidence adduced by the Crown was inevitable, even though the Jurats were wrongly encouraged to consider some potential lies in their deliberation of the jurisdiction issue.  In the view of this Court, the words in Article 26 of the 1961 Law "should be set aside on the grounds of a wrong decision of any question of law" predicate that the direction is not only wrong but is also material.  Since we concluded that the direction on lies, albeit wrong, was not material, we declined to set aside the convictions on the counts on this ground.  We only add that had it been necessary to apply the proviso to Article 26 on this point, we would unhesitatingly have done so.

67.      For these reasons we dismissed this appeal on all three grounds advanced by Advocate Blakeley.

68.      We add another coda.  In England and Wales there are two statutory provisions which take account of the possibility that the making may have been done abroad. They provide that a prosecution will be justiciable in England and Wales, notwithstanding that the images were made outside the jurisdiction of an English/Welsh court.  The relevant provisions are contained in Section 7 of the Sex Offenders Act 1997 and Section 72 of the Sexual Offences Act 2003.  During the course of his sentencing judgment, the Deputy Bailiff suggested that consideration should be given to enacting a similar provision in this jurisdiction.  We respectfully echo that suggestion.

69.      In a case where an accused raises the issue that the making was done abroad, we see no reason why that should be a good defence in this Bailiwick, as it would be at present, and the accused able in consequence to avoid conviction and punishment, in the absence of an ability by the Crown to disprove the assertion.  International comity requires that those who make images of this kind for their own gratification and/or the gratification of like-minded people, and who, thereby, take advantage of this shameful trade, which exploits and preys on vulnerable children from countries around the world, should be brought firmly and speedily to book.

Authorities

Protection of Children (Jersey) Law 1994.

Court of Appeal (Jersey) Law 1961.

R v Silverlock [1894] 2 QB 766.

R v Turner (T.) (1974) 60 Cr. App. R. 80 CA.

DPP v A. and BC Chewing Gum Ltd [1968] 1 QB 159.

R v Skirving [1985] 81 Cr. App. R. 9, CA.

R v Hookaway [1999] Crim. L.R. 750, CA.

R v Atkins (Dean) and Atkins (Michael) [2010] 1 Cr App R 8, CA.

R v Land [1998] 1 Cr App R 301, CA.

R v Stockwell [1993] 97 Cr. App. R. 260.

R v Gokal [1997] 2 Cr. App. R. 266.

Attorney General v Goss [2005] JLR Note 26.

U v Attorney General [2011] JCA 062.

R v Penner [2010] EWCA Crim 1155.

Sex Offenders Act 1997.

Sexual Offences Act 2003.