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||Neutral Citation Number:  EWCA Crim 660
||Case No: 201202298/B4
IN THE COURT OF APPEAL
||Royal Courts of Justice
London, WC2A 2LL
||26th March 2013
B e f o r e :
LADY JUSTICE HALLETT DBE
MR JUSTICE SINGH
HIS HONOUR JUDGE MOSS QC
(Sitting as a Judge of the CACD)
Computer Aided Transcript of the Stenograph Notes of
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Mr J Wood QC appeared on behalf of the Appellant
Mr T Little appeared on behalf of the Crown
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- LADY JUSTICE HALLETT: The appellant was a university student with considerable computer skills. On 8th July 2009 police attended his family home in Birmingham with a warrant to search. Two laptop computers belonging to the appellant were recovered, an Acer from a bedroom and a Toshiba from the living room, as well as an external hard drive which was later attributed to the appellant's younger brother.
- Mr Baugh, an expert in computer science, examined the appellant's two laptop computers and the hard drive. On the Acer he discovered Internet activity on a message board named "Boyzoom". This involved the exchange of information, stories and pictures for those with a sexual interest in young boys. There was evidence that images had been downloaded from this website to the appellant's computer. The images had titles such as "blue speedo" and "wild hair boy". This evidence formed the basis of the prosecution's case on counts 1 to 3 of the indictment of which the appellant was acquitted.
- The Toshiba laptop, in addition to the basic Internet browser had a more advanced "fire fox Internet browser" and a "plug in" which provided an effective storage vehicle. Examination of the plug in revealed a PDF file, namely a complete magazine from a website called "Boylovers.net." This contained written prose and stories as well as three further files. This formed the subject of counts 4 to 6.
- The first image (count 4) was on the front cover of the magazine and the remaining two images (counts 5 and 6) were contained within two written articles. One was about Speedo swimwear and one was entitled "My Fetishes, and Why They're Hot", again directed at those with a sexual interest in young boys. Mr Tom Little, who now appears for the prosecution but did not do so at trial, accepted that all six images, whatever the accompanying text, themselves involved no nudity or erotic posing and were at best "borderline" indecent.
- An examination of the hard drive revealed a history of Google searches, some but not all of which were of a sexual nature and all of which were done under the name of two active users. One was the appellant's brother and the other was called simply "Administrator".
- The appellant was arrested. In his initial interview he made no comment. But in a subsequent interview, on 7th December 2009, he gave an account generally consistent with his evidence at trial. This included his opinion about the law in respect of indecent images. He provided two different explanations as to how the photographs subject of counts 1 to 3 might have appeared on his computer and how the photographs subject of counts 4 to 6 might have done so.
- In a remarkably frank discussion with the officer about his sexual proclivities, he admitted having an interest in young boys and expressed the struggles he had with his sexuality. He discussed his attitude to child pornography and abuse and he introduced the subject of the COPINE scale to which we shall return. It was his opinion that the possession or making of level 1 images on the COPINE scale would be both acceptable and lawful.
- He was charged and appeared for trial at the Birmingham Crown Court before His Honour Judge Creed. He was represented by Mr Ashton, in-house solicitor advocate for a firm of solicitors for Messrs Tuckers and prosecuted by Mr Spratt, an in-house advocate for the CPS.
- The issues for the jury were two-fold. First: did the appellant knowingly download the images? Second: were the photographs indecent? On 24th September 2010 the appellant was convicted of the three offences subject of counts 4, 5 and 6. He was sentenced to an 18 month community order in November 2010, with 18 months supervision on each count. He has completed that sentence. A sexual offences prevention order (SOPO) was made for the period of 5 years. The SOPO was subsequently varied on appeal by this court - see  EWCA Crim 1772 and the judgment of the Vice-President of the Court of Appeal (Criminal Division) Hughes LJ at paragraphs 47 to 53.
- The appellant appeals against his conviction with leave. At the heart of this appeal is the jury bundle. Mr Spratt, with no objection from the defence, provided the jury with a bundle containing copies of the indictment (which referred to the images as "Level one"), a summary of the photographs (which included the assertion the images were all "Level 1"), a schedule of all six photographs, (on which each of the six images was described as "level 1 seriousness"), plus a document which purported to be the "COPINE scale".
- Before we consider in more detail the criticisms made of the way the case was prosecuted and defended, it is necessary to explain the COPINE scale. It is a rating system, created in Ireland and used in the United Kingdom to categorise the severity of images of child sexual abuse. The scale was developed by staff at the Combating Paedophile Information Networks in Europe Project (COPINE Project). It is designed as a therapeutic tool and has not been endorsed in its entirety for use in criminal proceedings in this jurisdiction. The first five levels of the scale are the only ones relevant to this appeal. In the only version put before us, taken from the internet, they read as follows:
"Level 1: Indicative description. Non erotic and non sexualised pictures showing children in their underwear, swimming costumes from either commercial sources or family albums. Pictures of children playing in normal settings in which the context or organisation of pictures by the collector indicates inappropriateness.
Level 2: Nudist. Pictures of naked or semi-naked children in appropriate nudist settings and from legitimate sources.
Level 3: Erotica. Surreptitiously taken photographs of children in play areas or other safe environments showing either underwear or varying degrees of nakedness.
Level 4: Posing. Deliberately posed pictures of children fully clothed, partially clothed or naked where the amount of context and organisation suggest sexual interest.
Level 5: Erotic posing. Deliberately posed pictures of fully, partially clothed or naked children in sexualised or provocative poses."
- The COPINE scale was considered to some extent by this court in the leading authority on sentencing for indecent photographs to date, which is R v Oliver  EWCA Crim 2766. The then Vice-President of the Court of Appeal (Criminal Division), Rose LJ, giving the judgment of the court bore in mind advice from the Sentencing Advisory Panel on the appropriate levels for sentencing for indecent photographs of children and observed at paragraph 10:
"… Subject to one matter, we accept the Panel's analysis of increasing seriousness by reference to five different levels of activity, derived from the COPINE Project's description of images. We do not agree with the Panel that COPINE typologies 2 and 3 are properly within Level 1. As it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. Accordingly, with that amendment to the Panel's proposals, we categorise the relevant levels as:
(1) images depicting erotic posing with no sexual activity;
(2) sexual activity between children, or solo masturbation by a child;
(3) nonpenetrative sexual activity between adults and children;
(4) penetrative sexual activity between children and adults;
(5) sadism or bestiality."
On one view of the photographs in the present case, standing alone, none of them fell into those categories. There were no images which could truly be described as depicting erotic posing and there was absolutely no evidence of sexual activity.
- Nevertheless, the jury was provided with a document headed "RESTRICTED MATERIAL Explanation of Copine Categories". The document, the provenance of which is obscure, sets out five levels: first level 1. Under the heading "Description" the document reads:
"Images depicting nudity or erotic posing with no sexual activity.
Copine Typology. Naked or semi-naked in legitimate settings.
Surreptitious photograph showing underwear/nakedness.
Posing (deliberate posing suggesting sexual content).
Erotic posing (deliberate sexual provocative poses/emphasis on genital area)"
The other levels relating to sexual activity, sadism and bestiality are also set out but we shall not trouble with them. Mr Little could not assist on the provenance of this document; he believed it might have been produced by the police officers.
- The jury bundle also contained copies of the indictment. The counts followed similar form, relating to each of the photographs. The "STATEMENT OF OFFENCE" read:
"MAKING INDECENT PHOTOGRAPHS OF A CHILD, contrary to section 1(1)(a) of the Protection of Children Act 1978.
PARTICULARS OF OFFENCE
JONATHAN DODD on the 18th day of June 2009 made an indecent photograph of A CHILD namely PJB/31 (PAL/1) [blue speedo.pmg] D:/temp/BZ/vBulletin/images/backgrouns/(Level 1) ..."
The bundle also included a summary of three of the alleged offences: the "blue speedo image", the "wild hair boy" image and the "laying beach boy" image. These all appeared under the heading "Level 1 indecent image details as found with the vBulletin background folder".
- Finally, the officers produced a summary, copied for the jury of each of the exhibits, giving the present exhibit number, the original exhibit number, the file path, the date the image was created and a description in the officer's words. We shall give but one example. The sixth image was Exhibit PJB 40. It was described in this way:
"Level 1 image contained within a sexual explicit article about sexual fetishes involving children. The image is of boy aged around 2 years old. He is lying on his back, in bed, wearing a blue pyjama top, pulled up to reveal his tummy. He is also wearing a nappy, with his legs spread wide to display his genital area to the camera. He appears to be asleep, and has a dummy in his mouth. The accompany text talks about the author finding the boy 'hot' and referring to the dummy in the boy's mouth making the image perfect."
All the other images also begin with the words "Level 1 image".
- We have seen the unredacted images for ourselves and much as we understand the officer's revulsion at the accompanying text, we question whether the descriptions were accurate. To suggest that on Exhibit PJB the baby's legs have been "spread wide to display the genital area to the camera" is, as Mr Little properly, conceded, somewhat of an exaggeration. It is a simple photograph of a toddler lying on his back of a kind that might be found in any family album. If the child's legs have been "forced apart", it is by his nappy and nothing more. Were it not for the accompanying text the photograph would be totally innocuous. The same can be said of all the photographs upon which the prosecution relied.
- Initially, the jury bundle included redacted copies of the photographs; the very act of redaction made them appear highly suspicious. It was only towards the end of the prosecution case that unredacted copies were retrieved from the safe and shown to the jury. No one pointed out to the jury that redaction and safekeeping are standard practice, where allegations of indecency with children are made and nothing should be read into the fact. The issue of indecency remained live.
- Finally, we should mention a document also in the bundle headed "AGREED FACTS". Agreed fact number 5 was rather curious, given the issues in the trial:
"5. A schedule of the level of images is admitted without further proof."
We assume the schedule of "level of images" admitted without further proof to be the summary to which we have already referred headed "Level 1 indecent images". At first blush this appears to remove the live issue of indecency from the jury.
- Mr Wood has three grounds of appeal, but for reasons that will become apparent we need only trouble with the first, which is described thus:
"Trial irregularities and non-directions relating to indecency of the photographs."
Mr Wood did his best to avoid overt criticism of the prosecuting and defence advocate and the trial judge. He is no doubt fully conscious of this court's attitude towards counsel who though not counsel at trial, scour transcripts of the evidence given and summing-up looking for possible errors which were neither significant nor spotted at the time of the trial. Unfortunately, this case goes much further than that and criticism of all those involved in the trial cannot be avoided. A number of errors have been made, significant errors that go to the very heart of the issues that the jury had to try.
First, Mr Wood submitted that material concerning the COPINE scale had been wrongly admitted. Second, he criticised the judge for failing to direct the jury on how to approach the evidence concerning the COPINE scale. Third, he observed that no-one should have allowed opinion evidence by the investigating officers that the photographs were level 1 to be admitted. Fourth, the judge erred in failing to direct the jury that the text surrounding the images was irrelevant to the question of whether the images themselves were indecent. Fifth, the judge erred in failing to warn the jury not to have regard to the restrictive handling of the unredacted images in determining whether they were indecent or not.
- In summary, Mr Wood argued that the way in which the case was prosecuted, defended and left to the jury would have given the jury the distinct impression that as a matter of law the images were level 1 indecent and the only issue they had to decide was the question of deliberate downloading.
- Mr Little did his valiant and eloquent best to support the safety of the convictions, notwithstanding his perfectly proper acceptance of a series of errors in the presentation of the case. He placed heavy reliance on the fact that the judge correctly directed the jury that the issue of indecency remained to be determined and it was their decision which mattered.
- However Mr Little was forced to concede that the judge specifically directed the jury's attention to the fact that the prosecution case was that these photographs were "level 1 indecent on the COPINE scale" a scale which was irrelevant to the jury's consideration. He told them they could see for themselves what level 1 on the COPINE scale was, because they had a copy of the document headed "Copine Scale" in their jury bundle, as if that would answer their questions. Finally, Mr Little conceded that the summing-up had failed importantly to draw any real distinction between the two issues that the jury had to determine, namely downloading and indecency.
- We have absolutely no doubt that Mr Little was correct to acknowledge an appalling catalogue of errors. The errors began with the indictment. It may or may not be best practice, as Mr Little urged upon us, to include a reference to the level of indecency alleged, on the face of the indictment, for the purposes of arraignment. If so, we have our doubts as to whether, in a contested trial, the abstract of the indictment for the jury should include those words. It is for the jury to decide whether an image is indecent and only if the jury return a verdict of guilty is the level of seriousness of the image relevant to the issue of sentence.
- In any event and most importantly, as far as the criminal justice system is concerned there is at present only one scale of indecency, the Oliver scale. If, therefore, the level referred to in the indictment was, as prosecuting counsel asserted, and the judge endorsed, level 1 of the COPINE scale, they were plainly wrong. In so far, therefore, as the prosecuting advocate the judge and possibly the defence advocate may have left the jury with the impression that they could get guidance on what constituted an indecent photograph from the COPINE scale, they were in significant error.
- We understand how the references to the COPINE scale arose. The appellant himself introduced the question of the scale in interview. However, once that had happened, the judge and the advocates had a responsibility to ensure the trial proceeded on the correct footing. A proper analysis should have been conducted of the relevance of the evidence and its impact on the trial. If that had been done, a number of options would have arisen: the COPINE passages could have been admitted with a clear explanation given as to what the appellant had meant by the COPINE scale and what level 1 on the COPINE scale entailed, or the passages could have been deleted, or they could have been replaced by a suitably crafted admission. Further, any explanation should have included a clear direction that the passages were only relevant to the issue of the appellant's mental state and whether he deliberately downloaded the photographs. They were not relevant to the test of indecency.
- To our mind the simplest and most sensible course would have been to delete the passages. The prosecution had ample material elsewhere in the interview, as to the appellant's sexual proclivities, if they were potentially relevant to the question of intentional downloading.
- Further, no-one should have allowed the officer's opinion to go before the jury. It was irrelevant and inadmissible on the facts here. The defence may not have objected as they should have done, but Mr Spratt should not have waited for an objection before excluding irrelevant material either in the interview or in the form of an officer's opinion. Far from excluding all inappropriate reference to the COPINE scale, the prosecution here laid it colours fairly to that scale's mast.
- Ultimately, in his attempts to support the safety of the conviction, Mr Little could only fallback upon the fact that the jury acquitted the appellant on the first three counts. This, he said, supported his proposition that they must have been well aware of their task to decide the 2 issues and they must have approached that task fairly.
- There might have been some substance to this argument if the defence to deliberate downloading had been the same on each count. But it was not. The issue of deliberate downloading was very different. For all any of us know therefore, the jury may not have been satisfied on counts 1 to 3 that the appellant did intentionally download the images and that is why they acquitted.
- Thus, we are satisfied that the judge did not receive the level of assistance from the trial advocates to which he was entitled. The jury may well have been misled as to how to approach their important function of determining whether or not the images were indecent. In our judgment, the catalogue of errors has fatally undermined the safety of the conviction. The appeal must be allowed. The consequences for the system are unfortunate: considerable time and resources have been wasted on this trial and appeal.
- In the circumstances, there is no need to consider Mr Wood's three other grounds of appeal one of which raised the interesting question of whether or not photographs which are on their face entirely innocuous can be rendered indecent by their context here, the surrounding indecent text. Had we had more time for argument, consideration and delivery of this judgment today, we should have liked to explore this ground further. However, we did not and neither counsel invited us to do so. Mr Little did not seek a retrial and therefore the question will not arise in the circumstances of this case. He accepted, as we have indicated, that the photographs were, at best, on the borderline of indecency and the appellant has served the sentence imposed.
- Finally we mention this. The appellant was very concerned about the terms of the judgment when the court allowed his appeal against sentence. He felt very strongly that what he had done and what he had allegedly done had been grossly overstated. We hope that this judgment has made clear the extent of the allegations against him. We also make clear that at no time during the course of interviews for these alleged offences did he advocate the distribution or use of indecent images of children, nor did he suggest that child pornography was not a form of sexual abuse. His defences were simply that (a) he had not downloaded the images and (b) in any event he believed images of this kind, generally, were within acceptable and lawful levels.
- For all those reasons, as we say, the appeal must be allowed. We are much indebted to Mr Wood and to Mr Little for their frank, succinct and sensible submissions.
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