‘Indecent’ Images: European Convention on Human Rights, Article 7

Published date01 April 2006
Date01 April 2006
DOIhttp://doi.org/10.1350/jcla.2006.70.2.127
Subject MatterEuropean Court of Human Rights
European Court of Human Rights
Indecent Images: European Convention on Human
Rights, Article 7
OCarroll vUnited Kingdom (2005) 41 EHRR SE1
The applicant was convicted at Southwark Crown Court on 17 July
2002 of three counts of importing indecent material contrary to
s. 170(2)(b) of the Customs and Excise Act 1979. The applicant had sent
some boxes to himself from Qatar which were intercepted by HM
Revenue & Customs. The boxes contained a number of photographs,
including some that depicted nude young boys. He was charged with
seven counts of importing indecent material but the jury only found that
three photographs were indecent and failed to reach a verdict on the
remaining four. He was sentenced to nine months imprisonment but
this sentence was later quashed by the Court of Appeal (see [2002]
EWCA Crim 3190) where the court declined to impose another sentence
on the basis that the applicant had already served three-and-a-half
months imprisonment.
After his release he sought to challenge his conviction, contending
that the images were not indecent; that the meaning of indecency was
so vague as to infringe Article 7 of the European Convention on
Human Rights; and that the photographs should have been placed
into their context ([2003] EWCA Crim 2338). The Court of Appeal
dismissed his appeal, stating that the law was certain and so no breach
of Article 7 arose, and that the judge was correct to direct the jury
that they should consider whether each image was indecent and not
consider the context.
The applicant petitioned the European Court of Human Rights, ar-
guing a breach of Article 7 on the basis that the meaning of indecency
was not suff‌iciently precise to enable an individual to know whether his
conduct was criminal.
H
ELD
,
DISMISSING THE APPLICATION AS MANIFESTLY ILL
-
FOUNDED
WITHIN THE MEANING OF
A
RTICLE
35(3)
OF THE
E
UROPEAN
C
ONVENTION
ON
H
UMAN
R
IGHTS
.The court noted that it is not possible to attain
absolute rigidity in the framing of laws, particularly when the views of
society will change through time. Obscenity is traditionally given a
transient def‌inition that could be considered vague, but that this is not a
breach of Article 7 (Müller v Switzerland (1991) 13 EHRR 212).
Where a law gives discretion to the tribunal of fact this will not be a
breach of Article 7 if the parameters of the discretion are clearly identif‌i-
able (Miloslavsky v United Kingdom (1995) 20 EHRR 442). The court also
noted that if the material was not, as a matter of law, capable of being
indecent, it would not be left to the jury, and that this was an added
protection.
127

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