R v Land (Michael)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JUDGE |
| Judgment Date | 10 October 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J1010-15 |
| Docket Number | No: 97/1309/W4 |
| Court | Court of Appeal (Criminal Division) |
| Date | 10 October 1997 |
[1997] EWCA Crim J1010-15
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Judge
Mr Justice Poole
and
The Judge Advocate General Cb QC
(His Honour Judge Rant)
No: 97/1309/W4
MR J WOOD appeared on behalf of the Appellant
MR P WALSH appeared on behalf of the Crown
On 31st January 1997 in the Crown Court at Lewes before His Honour Judge Scott-Gall and a jury the appellant was convicted of seven counts of having an obscene article for publication for gain and two counts of possessing indecent photographs of a child contrary to section 1(1)(c) of the Protection of Children Act 1978. On 21st February he was sentenced to six months' imprisonment for having obscene articles for publication for gain and nine months' imprisonment on each of the counts of possessing indecent photographs of a child. All the sentences were to run concurrently and they were suspended for two years.
There were the usual orders for destruction and forfeiture and the appellant was ordered to make a contribution towards the costs of the prosecution.
On the judge's direction he was found not guilty of a further offence of possessing indecent photographs of a child.
He now appeals against his convictions on counts 8 and 9, possessing indecent photographs of a child, with leave of the single judge. There is no appeal against the remaining convictions.
The facts need very little recitation.
The prosecution case was that the appellant and his partner, a man not charged because he was outside the jurisdiction, ran a mail order business which dealt in the supply of obscene video tapes depicting homosexual activity from two premises in Brighton. The business used a variety of addresses including accommodation addresses and post office boxes in the south of England.
In September 1993, at a time when the appellant was out of the country, the police raided the addresses in Brighton. At one set of premises they found a large quantity of pornographic material, together with video machines, cassette recorders, cassettes and tapes and a very large number of papers and documents as well as computers, discs and leads all of which formed part of the business enterprise.
The appellant gave evidence in his own defence. Among other things he asserted that he had no knowledge that his partner had been in the business of selling sexually explicit homosexual videos, that he had been deceived and misled and very badly let down. He said that had he known the nature of the business he would have asked his partner to leave his house. Despite his evidence he was convicted by the jury.
The present appeal is concerned with his conviction of possession of indecent photographs of a child in two video cassettes called "Golden Boy Special" and "Haisses Bankok". As the jury found that these two videos were indecent no description is needed beyond recording that in the first of them, count 8, two young adolescent males, and in the second, count 9, a young Thai male and a western youth, are depicted in varied and indecent forms of sexual activity. Hardly surprisingly, there was no direct evidence about the identity of any of the participants in these activities, nor of their ages.
The first ground of appeal arises from the judge's failure to direct the jury that before an offence contrary to section 1(1)(c) of the Protection of Children Act 1978 could be established the defendant had to know that the indecent photograph was a photograph of a child. In other words it was not enough for him to know that he possessed a photograph that was indecent: he had to know that the photograph depicted a person under 16. Mr James Wood further argued that in the absence of any direct evidence of age, expert paediatric evidence about these matters should have been called before the jury to enable them to be informed of the variations of onset of puberty in different adolescent males, particularly with persons of different racial origins and backgrounds. He reinforced this argument by the fact that the judge withdrew count 10 from the consideration of the jury on the basis that there was not enough evidence for them to conclude that the participants in the video there under consideration were children.
The preamble to the 1978 Act explains its purpose. It is "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(1) provides:
"It is an offence for a person—-
(a) to take, or permit to be taken … any indecent photograph … of a child…; or….
(c) to have in his possession such indecent photographs … with a view to their being distributed or shown by himself or others…"
By the interpretation section a "child" means "a person under the age of 16" and photographs "shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children…"
There is a statutory defence to charges under subsection (1)(b) or (c) but not under subsection (1) (a) or (d). The defences are limited to proof:
"(a) that he had a legitimate reason for distributing or showing the photographs…
or (as the case may be) having them in his possession; or
(b) that he had not himself seen the photographs … and did not know, nor had any cause to suspect them to be indecent."
Express provision is made in the Act for matters of evidence in section (2)(3), which with the relevant insertion from the Criminal Justice Act and Public Order Act 1994 provides:
"Proceedings under this Act (relating to indecent photographs of children) a person is to be taken as having been a child at any material time if it appears, from the evidence as a whole, that he was then under the age of 16."
Mr Wood drew attention to the provisions of section 160 of the Criminal Justice Act 1988 which creates the offence of simple possession of an indecent photograph of a child, but also repeats the provisions for defence provided by section 1(4) of the 1978 Act adding, no doubt deliberately, the further defence that "the photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time". He also drew attention to the effect of the Sex Offenders Act 1997...
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