R v D and Others
| Jurisdiction | England & Wales |
| Judge | The Vice President,D,P,U,THE VICE PRESIDENT |
| Judgment Date | 17 May 2011 |
| Neutral Citation | [2011] EWCA Crim 1474 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case Nos: 2010/6216/B2 & 2011/1009/D2 & 2010/0890/B1 |
| Date | 17 May 2011 |
[2011] EWCA Crim 1474
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
THE VICE PRESIDENT
( Lord Justice Hughes)
Mr Justice Roderick Evans
Mrs Justice Gloster DBE
Case Nos: 2010/6216/B2 & 2011/1009/D2 & 2010/0890/B1
and
Mr P Smith appeared on behalf of D
Mr J O'Higgins appeared on behalf of P
Mr K Scholz appeared on behalf of U
Mr M Dunford appeared on behalf of the Crown
: We have heard these three cases together because they raise connected questions. Each defendant was convicted of offences of sexual abuse of children, in each case said to have been committed over a substantial period. Each of them denied any sexual contact with the children at all. In each case the judge admitted, under the bad character rules contained in the Criminal Justice Act 2003, evidence that the defendant had viewed and/or made indecent photographs of children. Each of the defendants contends that the judge was wrong to admit that evidence.
As will be seen, although the cases therefore raise overlapping questions, they are not identical. The basis on which the evidence was admitted varies from case to case. These cases accordingly need separate consideration, although the overlap between them makes it helpful to have been able to consider them together.
In all the cases a number of different possible bases of admissibility were advanced on behalf of the Crown. We emphasise that it is necessary to address separately the different possible gateways for the admission of bad character evidence to be found set out in section 101(1). It is of course true that if evidence is admissible through any gateway, it may then be considered by the jury in any way to which it is legitimately relevant, whether it has primarily been admitted on that basis or not — see R v Highton and others [2005] EWCA Crim. 1985, [2006] 1 Cr. App. R 7 at 125, paragraph [10]. That, however, does not relieve the court of the duty of establishing which gateway or gateways are applicable. That exercise must be undertaken. It must be undertaken, first, in order to ensure that bad character evidence is only admitted when the statute allows it. It must be undertaken, secondly, because the decision as to the relevant gateway or gateways will normally be of great help in identifying the way or ways in which the evidence can legitimately be used — that is to say the issues to which it is relevant. As Highton itself makes clear, it is not law that once bad character evidence is admitted, having by definition passed at least one gateway, it can thereupon be used by the jury in any way the jury chooses. On the contrary, it may be used on any issue to which it is legitimately relevant but not otherwise.
The important question which is common to these cases is gateway D. If a defendant is charged with sexual abuse of a child, is the possession of indecent photographs of children capable of being admitted by way of bad character evidence on the grounds that it is evidence of a sexual interest in children and thus relevant to an important matter in issue between the defendant and the prosecution. That is the issue with which we deal first.
Note that the words of the gateway do not use the expression "propensity". That word appears in section 103(1) which makes it clear that included amongst the issues between the Crown and defence is the issue whether the defendant has a propensity to offend as charged.
Evidence that a defendant collects or views child pornography is of course by itself evidence of the commission of a criminal offence. That offence is not itself one involving sexual assault or abuse or indeed of any sexual activity which is prohibited. It is obvious that it does not necessarily follow that a person who enjoys viewing such pictures will act out in real life the kind of activity which is depicted in them by abusing children. It follows that the evidence of possession of such photographs is not evidence that the defendant has demonstrated a practice of committing offences of sexual abuse or assault. That, however, is not the question for the purposes of gateway D. The question under gateway D is whether the evidence is relevant to an important matter in issue between the defence and the Crown. Is it relevant to demonstrate that the defendant has exhibited a sexual interest in children?
It seems to us that this is a commonsense question which must receive a commonsense answer. The commonsense answer is that such evidence can indeed be relevant. A sexual interest in small children or pre-pubescent girls or boys is a relatively unusual character trait. It may not be quite as unusual as it ought to be, but it is certainly not the norm. The case against a defendant who is charged with sexual abuse of children is that he has such an interest or character trait and then, additionally, that he has translated the interest into active abuse of a child. The evidence of his interest tends to prove the first part of the case. In ordinary language to show that he has a sexual interest in children does make it more likely that the allegation of the child complainant is true, rather than having coincidentally been made against someone who does not have that interest. For those reasons, we are satisfied that evidence of the viewing and/or collection of child pornography is capable of being admissible through gateway D. We emphasise that it does not follow that it is automatically admissible. There is nothing automatic about any of these bad character provisions. They require an exercise of judgment, specific, in every trial. Moreover, to say that the evidence is capable of admission under gateway D is only the first part of the exercise for the court. The court must also direct its attention to whether it is unfair to admit the evidence and of course in some cases it might be.
The evidence with which we are dealing is evidence of propensity in the true sense of that word, by which we mean evidence of a character trait making it more likely that the defendant did indeed behave as charged. We are conscious that in the shorthand of the criminal courts the word "propensity" is sometimes applied, no doubt conveniently, to the case where there is evidence that the defendant has previously committed an offence similar to that which is now charged. Propensity may of course be proved by evidence of the previous commission of such an offence, and it may well be that that is the kind of propensity evidence most frequently adduced, but it is not limited to that kind of evidence. On the contrary, it may include any evidence that demonstrates that it is more likely that the defendant did indeed behave as he has been charged. It is however important that juries should be reminded that they cannot proceed directly from the possession of photographs to active sexual abuse. They must ask themselves whether this further step is proved so that they are sure. The exact direction will depend on the facts of each individual case. But it may be particularly important to remind the jury that the extra step does not follow and must be proved. One example might be a case where a young child had discovered the existence of the pornography and there is a realistic possibility that he or she has, as a result of seeing them, either invented or imagined an act of abuse against him or herself. That is but one example.
Accordingly, we recommend that when photographs of this kind are admitted for the purpose of demonstrating a sexual interest in children the jury should be told in terms that that is the issue to which it is relevant. As will be seen the juries in the cases before us were told that the evidence was relevant to precisely that question.
We also recommend, although the form of the summing-up must be governed by the facts and circumstances of each case, that judges should consider including a warning to juries in a case where there is such a risk not to allow any revulsion of the use of child pornography to overcome the duty as jurors to examine carefully the question of whether the evidence shows that the interest has been translated beyond viewing and into active abuse.
In none of the cases before us were the photographs in fact actually shown to the jury. It seems to us that that is a sensible practice which should generally be adopted. It is unnecessary that the jury should see the photographs and it would carry the risk, if they did, that some at least might find it difficult to avoid the effects of distaste. It seems to us likely that in most cases a suitable description of the general contents of the photographs which had in fact been found can be agreed and presented to the jury. Care should be taken that that description should be as neutral and dispassionate as possible. In one of the cases before us the jury was given, by agreement, the descriptions of category of pictures to be found in the Copine scale. That is one way of doing it, but it seems to us better as a general proposition if what the jury is told by agreement is linked to the photographs actually found, rather than to a more generalised description of categories.
Those foregoing conclusions appear to us clearly to be supported by those cases to which we have been referred. We do not suggest, and nor did counsel, that we have been provided with a complete encyclopedia of every relevant decision and nor would it be possible.
We were referred to R v Weir [2006] 1 Cr. App. R 19, page 303. There the charge was indecent assault of a 10-year-old school friend of the daughter of the...
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