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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dodd, R. v [2013] EWCA Crim 660 (26 March 2013) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2013/660.html Cite as: [2013] EWCA Crim 660 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o r e :
MR JUSTICE SINGH
HIS HONOUR JUDGE MOSS QC
(Sitting as a Judge of the CACD)
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R E G I N A | ||
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr T Little appeared on behalf of the Crown
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Crown Copyright ©
"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."
"… 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.
"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.
"MAKING INDECENT PHOTOGRAPHS OF A CHILD, contrary to section 1(1)(a) of the Protection of Children Act 1978.
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".
"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".
"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.
"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.