Possessing a Photograph with a View to Showing It
| DOI | http://doi.org/10.1177/002201839906300531 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The Journal
of
Criminal Law
possibility,
the
court declared that this was
an
entirely unrealistic propo-
sition, since anyone would consider this oppressive
and
an
abuse of
process, in
the
absence of
an
order for a retrial by the Court of Appeal.
For
the
instant appellants,
the
precise form of the court's order was
academic;
but
this was
not
so for
the
two remaining defendants awaiting
trial.
In
altering
the
record,
the
court acted in such a way as to show
what
had
been (and remained) its real intention, in a
matter
(as to the
form of its order) on which, on
the
original appeal, it
had
received no
submissions,
on
which it
had
not
been consulted
and
of which it knew
nothing. The difficulty of
the
situation is illustrated by
the
fact
that
the
court certified
under
s 33(2) of
the
Criminal Appeal Act 1968, as a point
of law of general public importance,
the
question,
when
acourt over-
turns aconviction
on
the ground
that
the appellant's trial was a nullity,
but
does
not
order
venire
de
novo,
is it appropriate to quash
the
conviction
or simply to
annul
it? To proceed
under
s 2(3) of
the
1968 Act or to
proceed
under
s 53(2) of
the
1981 Act may,
in
each case, lead to logical
difficulty. That
under
s 2(3) is stated by Henry U(at 462F): 'Where there
is a mistrial
and
no valid conviction, it is a contradiction in terms to
"quash"
the
conviction because in law it never existed'.
It
is equally
difficult to claim to make
an
order
under
powers to issue
venire
de
novo,
the
moment
after holding
that
there is to be no
venire
de
novo.
Possessing aPhotograph
with
a View to Showing
It
RvET(1999)
163 JP 399
The appellant was charged with a
number
of sexual offences alleged to
have
been
committed against two young girls,
who
were the daughters
of
the
woman
whom
he eventually married. He pleaded guilty to two
counts.
and
was found guilty
on
four others by
the
jury,
who
disagreed
on
one
count
and
acquitted
him
of the others. He was sentenced to eight
years' imprisonment. He sought leave of
the
full court to appeal against
conviction
on
all
the
relevant counts, after
the
single judge
had
granted
leave in respect of one count only. That count charged
him
with having
in his possession aphotograph, namely, a cine film, with a view to
showing the film contrary to s 1( 1)(c) of
the
Protection of Children Act
1978. He admitted
that
he
had
the film in his possession
and
that
he
had
'shown'
the
film to himself,
but
he asserted
that
he
had
shown
it to no
other
person
and
had had
no intention to do so. The prosecution did
not
attempt to prove that he
had
shown the film to
any
other
person or that
he intended to do so, because it was content to rely on the proposition
that, on a proper interpretation of
the
subsection, it sufficed
that
the
prosecution, in order to' establish guilt, proved
that
he
had
shown
the
film to himself. Although this particular charge was one to which
he
had
pleaded guilty, he sought to appeal on
the
ground
that that
plea was due
to his misunderstanding of
the
real meaning of
the
subsection.
Under s 1(1) of
the
Protection of Children Act 1978 it is
not
only an
offence to take
an
indecent photograph of a child,
but
by virtue of
452
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