Court of Appeal
| DOI | 10.1350/jcla.2011.75.4.711 |
| Published date | 01 August 2011 |
| Date | 01 August 2011 |
Court of Appeal
Objective Standards of Indecency
R v Neal [2011] EWCA Crim 461
Keywords Indecent photograph; Child pornography; Extreme pornog-
raphy; Indecency; Jury direction
The appellant was tried on an indictment of six counts at the Crown
Court at Snaresbrook. The first five counts were allegations that the
appellant was in possession of an indecent photograph of a child con-
trary to s. 160 of the Criminal Justice Act 1988. The sixth count alleged
the appellant was in possession of an extreme pornographic image
contrary to s. 63(1) of the Criminal Justice and Immigration Act 2008.
The image in respect of count six was a DVD depicting an adult male
of large proportions penetrating the anus of a pre-pubescent female
child with his penis. The trial judge ordered the defendant to be ac-
quitted of this count because no evidence had been adduced that the
victim had suffered ‘an act which results or is likely to result in serious
injury to a person’s anus’ one of the statutory requirements for this
offence (Criminal Justice and Immigration Act 2008, s. 60(7)(b)).
Having ordered the acquittal of the defendant for that count he then
addressed the jury in respect of the remaining five counts. He addressed
the jury by saying:
In determining [whether the photographs are indecent] you are entitled to
consider whether the photograph in question would be thought to be
indecent by right-thinking people. Furthermore, in determining this ques-
tion you are entitled to take into account the age of the subject depicted in
the photograph . . . it is your decision as to whether these photographs or
any of them are indecent. So it is not what [the defendant] 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? (at [10])
The jury convicted the appellant of the five counts and he appealed
alleging two errors. The first is that the judge should have discharged the
jury when he acquitted the defendant of the sixth count as the contents
of that DVD, which had been seen by the jury, could have prejudiced
them in respect of the first five counts. Secondly, the judge had erred in
his direction to the jury on the definition of indecency for the purposes
of indecent photographs of children.
H
ELD
,
ALLOWING THE APPEAL AND QUASHING THE CONVICTIONS
, the
jury should have been discharged after the appellant was acquitted of
the offence alleged in the sixth count. When considering whether the
convictions on the first five counts was safe the court noted that the
judge had erred in defining the meaning of indecency for indecent
264 The Journal of Criminal Law (2011) 75 JCL 264–278
doi:10.1350/jcla.2011.75.4.711
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