R v Graham-Kerr
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER |
| Judgment Date | 28 June 1988 |
| Judgment citation (vLex) | [1988] EWCA Crim J0628-21 |
| Docket Number | No. 7445/E1/87 |
| Court | Court of Appeal (Criminal Division) |
| Date | 28 June 1988 |
[1988] EWCA Crim J0628-21
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Stocker
Mr. Justice Tudor Evans
and
Mr. Justice Potts
No. 7445/E1/87
MR. N. ATKINSON appeared on behalf of the Appellant.
MR. N. PASCOE Q.C. appeared on behalf of the Crown.
On 17th November 1987 at the Crown Court at Portsmouth before Judge Broderick and a Jury this appellant was convicted of taking an indecent photograph of a child aged 7 years. Sentence was deferred. He was acquitted in respect of a similar count regarding another photograph. The difference between the two photographs was that the first one was a frontal view of the naked boy, on which he was acquitted, and the second photograph was the rear view of the same child. It was in respect of that photograph that he was convicted. He now appeals against conviction on a point of law.
The facts are simple and basically undisputed. On 25th April 1987 the complainant, a boy then aged 7, was at the swimming baths in Fareham with his parents. The family were naturists, which we take to be virtually synonymous with people who are nudists, or who prefer to carry on certain activities in the nude. For that reason the general public were not admitted to the baths on that evening. It was confined to people who were naturists. Nude swimming took place and changing took place in a changing room common to both sexes. The small boy was splashing about near the shallow end of the pool with his mother. The appellant came up to them. He said he was a qualified swimming instructor, which we understand he was, and that he would help to teach this boy to swim. The offer was accepted and the appellant remained with the boy, teaching him to swim and generally keeping the boy occupied and amused in the baths. There was no evidence of any impropriety, nor was any impropriety alleged until the appellant took the photographs the subject matter of this appeal.
It seems there was an official photographer at the baths. Permission was sought of the boy's parents for that official photographer to take a photograph of the appellant and the small boy. The appellant obtained the permission of the boy's parents for such a photograph to be taken by the official photographer. Certain photographs were taken, with the parents' consent, to which no objection has been made.
It so happened that the appellant had a camera of his own at the baths, which he kept in a different changing room, we believe for disabled people. In that changing room he took the two photographs of this small boy in private and without the parents' knowledge. Once the parents became aware that these photographs had been taken privately and in a separate room they informed the police. The police officers confiscated the camera, which contained undeveloped film, including undeveloped film of those two photographs. They were developed by the prosecution.
There was no issue but that the appellant had taken the photographs and no issue but that the photographs represented that which he wanted to photograph. He told the police that he did not realise that it was an offence to take photographs.
The Crown alleged that the photographs were indecent within the meaning of section 1(1) of the Protection of Children Act 1978. At interview the appellant gave certain answers to which we will now refer. There were a number of answers which were excluded by the judge, mainly on the grounds that they went to proclivity rather than direct facts. The answers which were relevant to this particular case are these:
"(Q) Do you find (the boy) particularly attractive? (A) Yes." A little later: "(Q) Do you receive or enjoy sexual gratification by taking or looking at such photographs? (A) Yes."
The appellant gave evidence in his defence. He said he had taken the photographs for "naturist reasons". He found the boy attractive in a "naturist way" because he was young and athletic. He had taught the boy to swim and therefore he wanted something to remember him by. That was why he took the photographs. He denied that he would have passed them to anybody else, although he intended to give the boy himself a copy.
Before the trial began a submission was made by Mr. Atkinson to the judge recorded in the transcript in these terms:
"Mr. Atkinson made an application that the only prosecution evidence which should be put before the Jury should be the photographs."
That is a wide submission but it is the form in which it was made. It is relevant to observe, however, that there was no issue but that the appellant had taken the photographs, that he had intended to take the photographs, and that the subject matter of the photographs was that which he had intended to photograph.
The learned judge in giving his rulings made these observations:
"In my JUDGMENT the expression used in the Act, 'to take any indecent photograph', means that the circumstances in which the photograph is taken are relevant and admissible for the purpose of the jury determining whether or not the photograph is an indecent photograph". A little later, having considered the case of R, v. Court, which is now reported in the House of Lords, he said:
"In other words, it was permissible for the Crown to adduce evidence of the defendant's secret motive in doing what he did. In my JUDGMENT the decision in R. v. Court is equally applicable to the present case, for the purpose of enabling the jury to decide whether or not the defendant took an indecent photograph of a child. So, my ruling, in general terms, at this stage is, firstly, that the surrounding circumstances are admissible; and, secondly, that the decision in Court applies, and accordingly the prosecution would be entitled to adduce evidence of motive".
Before the case resumed the learned Judge added that he had seen a decision of this court in R. v. Owen, (The Times Law Report, October 10 1987), of which we also have a transcript.
Evidence was then called. The stage was reached when the evidence of the interview by the police officer was about to be given. Mr. Atkinson then made his second submission: that parts of the interview should not go before the jury. For the purpose of this appeal, the parts of the interview to which he was referring are those questions and answers which have already been read. In fact the submission went further than that, but no issue arises on this appeal except in regard to those two questions and answers. The learned judge's ruling was this:
"In my JUDGMENT there is no distinction between indecent assault and taking an indecent photograph." Then he referred again to the case of Court as reported in the Court of Appeal. Of course at that date the House of Lords' decision had not been published. The judge continued:
"In my JUDGMENT it is equally permissible in the "present case for the Crown to adduce evidence of what the defendant said to the police was in his mind at the time that these photographs were taken," He said: "This is an Act intended for the protection of children from the taking of indecent photographs to consider the state of the photographer's mind at the time that the photograph was taken as being a matter which may assist the jury to decide whether or not the taking of the photograph was the taking of an indecent photograph,"
So he ruled that the answers to which reference has already been made were admissible and should go before the jury; and indeed they did.
Finally, at the end of the prosecution case, Mr. Atkinson made a submission to the judge based on the proposition that as the photograph had not been developed, there was no photograph or negative within the meaning of the Act. Mr. Atkinson has not developed that particular argument before this court and does not seek to rely upon it, so we will give it no further thought.
At this stage it might be convenient to read the terms of the Act which are relevant to this appeal. The title of the Act is "Protection of Children Act 1978". The preamble states:
"An Act to prevent the exploitation of children by making indecent photographs of them; and to penalise the distribution, showing and advertisement of such indecent photographs". Section 1 is headed: "Indecent photographs of children" and reads:
"(1) It is an offence for a person - (a) to take … any indecent photograph of a child (meaning in this Act a person under the age of 16); or (b) to distribute or show such indecent photographs; or (c) to have in his possession such indecent photographs, with a view to their being distributed or shown by himself "or others; or (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs, or intends to do so.
"(2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person."
"(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—(a) that he had a legitimate reason for distributing or showing the photographs"– that does not arise here – "(b) that he had not himself seen the photographs and did not know, nor had any cause to suspect, them to be indecent."
Section 7 is the interpretation section. Subsection (1):
"The following subsections apply for the interpretation of this Act … (3)Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of...
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