R v Smethurst

Tuesday 20 March 2001

On 16 May 2000, in the Crown Court at Snaresbrook, before His Honour Judge Medawar, the appellant was convicted of fifteen counts of making indecent photographs of children, contrary to section 1(1)(a) of the Protection of Children Act 1978. He was conditionally discharged for two years on each count concurrent, and ordered to pay £600 toward the costs of the prosecution. An order was made for forfeiture of the photographs. He now appeals against conviction by leave of the single judge.

Quite clearly His Honour Judge Medawar did not regard this offence as being particularly serious, otherwise he would not have imposed a conditional discharge. However, the fact that he took that course does not mean that the very fact of his being found guilty was not a serious matter for the appellant.

The appellant is 55 years of age. It is not suggested that there is anything in his background which conflicts with his good character. As a result of his convictions he is required to comply with the provisions of section 2 of Part 1 of the Sex Offenders Act 1997 for a period of five years, which is a significant disadvantage.The facts of the case were very limited. In view of the state of the law as it was understood by those who represented the appellant, they did not consider that it was a case where any purpose could be served —indeed it would be inadmissible for him to give evidence as to the reason why he wished to do that with which he was charged.

On 17 July 1999, police officers attended a fashion shop on the Camden Road in North London to execute a search warrant. The appellant is the proprietor of the shop. During the course of their inquiries they referred to a set of photographs of naked young girls. The officer asked him how old he thought the girls were. He replied, "I have no idea. She looks young. She looks younger than 16 which is what she is meant to be." He was arrested and he said, "I am not aware that the pictures are illegal and I believe they are over age girls." The photographs had been down-loaded from the internet and printed as stills. They were exhibited in the court below, but they are not before us.

In interview the appellant said that he had down-loaded the photographs from a website which certified that all the models were of persons aged 16 or over. He did not accept that the pictures showed exposed genitalia or that the girls looked under 16. He denied that he looked at the pictures for sexual gratification. He explained that he was a keen photographer and was interested in the female form. The only evidence at the trial came from the police in relation to the search and the finding of the photographs, and the statement of a forensic scientist which was read to the jury.

The defence before the jury was that the images were not indecent. It was formally admitted that the appellant had "made" the photographs.

At the time of the appellant's conviction the Human Rights Act 1998 was not in force. The Act has since come into force. On the basis of its contents Mr Riza QC on behalf of the appellant submits that the proper interpretation of the section on which the convictions were based is different from that advanced by the judge in his summing-up to the jury. However, subject to the effect of the Human Rights Act 1998, Mr Riza makes no criticism of the summing-up. He accepts that the judge's summing-up was in accordance with the law as it then was. However, he submits that the Act is retrospective in its effect so that when the matter comes before this court on appeal we have to apply the law as though the Human Rights Act had been in force at the time the convictions took place.

We have the advantage of a skeleton argument by Miss Johnston on behalf of the prosecution. She disputes that the Act is retrospective. She acknowledges that there are authorities, which she lists, which suggest otherwise, but she contends that, at least with regard to the issues before this court today, the Act is not retrospective in its effect. If she is right in that contention, then it is clear that Mr Riza's argument on the appellant's behalf would be bound to fail because the judge dealt with the case in accordance with the law as it then was.

In at least two of the cases to which Miss Johnston refers, the judgment was given by myself. This court recognises, however, that the issue is one of some difficulty. It is possible that the Act may not be retrospective at all, or, as it seems to us more likely, it is retrospective in some respects such as in relation to Article 6, but not necessarily in relation to other articles. A further alternative is that it is retrospective in relation to all the articles which are set out in the schedule to the Act. However, so far as the present appeal is concerned, we prefer to express no opinion on the question of retrospectivity because in view of the conclusions that we have come to with regard to the merit of the appeal, even on the assumption that the Human Rights Act does apply, it is not necessary to do so.

The articles upon which Mr Riza relies on behalf of the appellant are Articles 8 and 10 of the European Convention on Human Rights. In the course of his arguments Mr Riza has focused primarily on Article 10. It is readily apparent from the language of Article 10 as to why it has relevance in these circumstances. Article 10 states:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of …. for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …."

Article 8 deals with the right to respect for private and family life. That right is also subject to a qualification contained in Article 8(2), which is in similar terms to Article 10(2). It is therefore not necessary for the purposes of this judgment to set out Article 8.

In order for the appeal to be understood, the law as it has developed prior to the coming into force of the Human Rights Act 1998 has to be looked at. The decision of this court in R v Graham-Kerr (1989) 88 Cr App R 302 sets out the approach which was required to be taken by the courts prior to the coming into force of the Human Rights Act. The case dealt with the provisions of section 1 of the Protection of Children Act 1978, under which this appellant was charged. Section 1 provides:

"(1) It is an offence for a person —

(a) to take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child; or

(b) to distribute or show such indecent photographs or pseudo-photographs; or

(c) to have in his possession such indecent photographs or pseudo-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 pseudo-photographs, or intends to do so.

….

(3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(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 or pseudo-photographs or (as the case may be) having them in his possession; or

(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect them to be indecent."

R v Bowden (10.11.99, Case No 99/0870/ W2, 99/4175/W2), which Mr Riza does not seek to challenge, makes it clear that the section applies to the conduct which occurred in this case.

In the judgment in Graham-Kerr, which was given by Lord Justice Stocker, the intent required for an offence against section 1 was dealt with in some detail. In the court below the judge had applied a recent decision of the House of Lords in R v Court (1988) 87 Cr App R 144 to an offence under section 1 of the Protection of Children Act 1978. Court dealt with the intent required for an indecent assault, and the issue was as to the relevance and admissibility of evidence. The prosecution in Court contended that the question of indecency for the purposes of indecent assault had to be judged objectively, but the House of Lords came to the conclusion that that was not entirely correct. In his speech Lord Ackner pointed out that the circumstances in which an assault took place were important in deciding whether the assault was indecent or not. The example was referred to of a parent smacking a child on the bottom. If that was done to chastise the child in the normal way, clearly that would not be an indecent assault. However, if the child was smacked on the bottom for the purposes of giving the person...