REGINA v. GRAHAM-KERR
1988 June 28
Stocker L.J., Tudor Evans and Potts JJ.
Crime – Child, indecent photograph of – Taking of photograph – Circumstances and motivation of photographer – Whether relevant in determining photographs indecent – Direction to jury – Protection of Children Act 1978 (c. 37) s.1(1)(a)
The appellant was charged with taking indecent photographs of a seven year old boy, contrary to section 1(1)(a) of the Protection of Children Act 1978. Before the trial began it was submitted by the defence that the only evidence which should be put before the jury was the photographs. The trial judge ruled that the circumstances in which the photographs were taken were relevant and admissible for the purposes of determining whether the photographs were indecent, and that the prosecution were entitled to adduce evidence of motive. The judge also rejected a further submission made by the defence, and ruled that evidence of parts of the police interview with the appellant which dealt with what he had told the police had been in his mind at the time he took the photographs should be admitted. The appellant was convicted.
On appeal against conviction –
Held, allowing the appeal, that on a trial of charges alleging the taking of indecent photographs of a child the jury should be asked first to decide whether they were satisfied that the defendant deliberately and intentionally took the photographs of the subject, as disclosed by the photographs produced, and if they were so satisfied to decide then whether the photographs were indecent, the circumstances as to whether the photographs were indecent, by applying the recognised standards of propriety; that, for the purposes of reaching a conclusion as to whether the photographs were indecent, the circumstances in which they were taken and the motivation of the taker were irrelevant; and that, accordingly, where there was no issue as to whether the taking was intentional, the only relevant evidence was the photographs themselves, and in such circumstances a trial judge’s ruling that evidence of surrounding circumstances and motivation were relevant and admissible for the purposes of determining whether the photographs were indecent was incorrect.
APPEAL against conviction.
On 17 November 1987 in the Crown Court in Portsmouth before Judge Broderick and a jury the appellant, John Graham-Kerr, was charged on an indictment containing two counts each alleging the taking of an indecent photograph of a boy aged seven years. The appellant was convicted on one count, and appealed on the grounds that (1) the test of indecency was a matter for the jury and the photographs must be must be indecent in themselves; they were not so in this case. (2) The definition of indecent photograph in section 7(4) of the Protection of Children Act 1978 did not include undeveloped film; (3) the judge was wrong to admit evidence as to the circumstances in which the photographs were taken and to direct the jury that such was relevant to the issue of whether the photographs were in themselves capable of being indecent; (4) the judge was wrong to admit evidence of the appellant’s observations in an interview that he derived gratification from such photographs; and (5) the admission of evidence with regard to the appellant’s motive was more prejudicial than probative.
The facts are stated in the judgement.
Nicholas Atkinson (assigned by the Registrar of Criminal Appeals) for the appellant.
Nigel Pascoe Q.C. for the Crown.
STOCKER L.J. delivered the judgement of the Court. On 17 November 1987 at the Crown Court in Portsmouth before Judge Broderick and a jury this appellant was convicted of taking an indecent photograph of a child aged seven years. Sentence was deferred. He was acquitted in respect of a similar account 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 25 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 that 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 an impropriety alleged until the appellant took the photographs, the subject matter of this appeal.
It seems that 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 parent’s 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 parent’s 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 realised 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:
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‘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.’
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Before the trial began a submission was made by Mr Atkinson to the judge recorded in the transcript in these terms: ‘Mr Atkinson made the 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 judge in giving his rulings made these observations:
| ‘In my judgement 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 Court of Appeal decision in Reg. v. Court [1987] QB 156, which is now reported in the House of Lords [1988] 2 WLR 1071, 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 judgement the decision in Reg. 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 judge added that he had seen a decision of this court in the Times, 10 October 1987, of Reg. v. Owen (Charles) [1988] 1 WLR 134.
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 answers and questions. The judge’s ruling was: ‘In my judgement there is no distinction between indecent assault and taking an indecent photograph.’ Then he referred again to Reg. v. Court [1987] QB 156. Of course at that date the House of Lords’ decision had not been published. The judge continued:
| ‘In my judgement 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. This is an Act intended for the protection of children from the taking of indecent photographs to consider the states 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 of 1978. Mr Atkinson has not developed this 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 the 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 it 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 – ‘or (b) that he had not himself seen the photographs and did not know, nor had any reason to suspect, them to be indecent.’ |
Section 7 is the interpretation section:
| ‘(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 children. (4) References to a photograph include the negative as well as the positive version.’ |
That was the statutory obligation.
The judge summed up in accordance with the two rulings that he had already given. We will turn to those parts of the summing-up which are relevant to the present matter. The judge directed the jury:
| ‘You have to be sure that it was an indecent photograph that the defendant took before you convict, and you must ask the question separately in relation to the front view and back view. Now, members of the jury, whether or not a photograph is an indecent photograph is a question of fact.’ |
No question can possibly arise out of that direction. He continued:
| ‘Whether or not it is indecent is a question of fact, and as a question of fact it is something for you to decide, but I think perhaps I am entitled to go a little further and try to help you in the approach which you should make.’ |
The judge told the jury that they apply the standard of decency which ordinary right-thinking members of the public would set. That is as close as can be to the direction in Reg. v. Stamford [1972] 2 QB 391, which uses the formula ‘recognised standards of propriety.’ There really seems to be no difference in the exact formulation. Accordingly we would regard that direction as being correct.
The judge continued: ‘But, above all, you have got to be asking yourselves the question, “Are we sure it was an indecent photograph?” ’ Then in accordance with the rulings that he had already given follows this passage:
| ‘Now, members of the jury, you are entitled to take into account the surrounding circumstances. You are not obliged to take them into account. If you say to yourselves, “No, they make no difference at all,” then do not give them any weight. If you say to yourselves, “Yes, the surrounding circumstances should be taken into account,” then it is for you to decide what weight you give them.’ |
It is submitted by Mr Atkinson that that was a misdirection, for the surrounding circumstances, as he had already submitted to the judge earlier, should not be taken into account on the question of whether or not the photographs were indecent. This passage follows later:
| ‘Now, members of the jury, finally, you are entitled to take into account the defendant’s feelings and state of mind at the time. If you find that the photograph you are considering is capable of being indecent then the fact that the defendant had some sexual motive is a factor which you can consider. It does not automatically result in the conclusion that the photograph is indecent. It is a matter for you to decide what weight you give it. If you find the photograph is capable of being indecent, and if you find that the defendant had some sexual motive at the time, you can then put the two together and ask yourselves, “Are we sure it is an indecent photograph?” If you look at the photograph and say to yourselves, “Well, that simply is not capable of being described as indecent”, then, whatever may or may be going on inside the defendants mind, it cannot turn what is not capable of being indecent into an indecent photograph.’ |
At that point no criticism can be made of the last sentence of that direction taken in isolation. The judge continued:
| ‘So look at the photograph first. Ask yourselves, “Are we sure it is capable of being indecent?” If it is, give such weight as you think proper to what the defendant has in his mind. But, if it is not capable of being indecent in the first place, however much sexual gratification you think the defendant may have got, that is not something which can turn it into an indecent photograph.’ |
It seems to us possible that in those two passages that have just been read the judge was once again relating to the situation which prevails on charges of indecent assault.
We consider, first, whether the judge was correct in specifically finding that he was bound be the decision in Reg. v. Court [1987] QB 156 – a case which related to indecent assault.
In Court the defendant was charged with indecent assault, the nature of the assault being that he had spanked a girl. He gave as an explanation for doing it that he had a buttock fetish, and that he was acting as he did because he obtained some form of sexual gratification from so doing.
The point, as it seems to us, was the question of the appropriate mens rea on a chare of indecent assault. Clearly the fact that an assault is committed may not in itself establish that it was an indecent assault without reference to the subjective motive of the defendant. As example given in the House of Lords in Reg. v. Court [1988] WLR 1071, which had been put before their Lordships, was the case of somebody who might in his anxiety to get out of a tube train, commit an assault on a woman by pushing her out of the way, but that accidentally her clothes were ripped. The question therefore would have arisen as to whether or not there was any indecent motivation in the defendant by reason of the fact alone that indecency in fact did result. So the point in Court was, in the context of indecent assault, mens rea of the defendant.
Lord Goff of Chieveley dissented from the rest of their Lordships. He said, at p. 1091:
| ‘First, if the prosecution cannot establish that an assault is objectively indecent, they are not allowed to fortify their case by calling evidence of a secret indecent intention on the part of the defendant. Second, if an assault is prima facie indecent, the defendant may seek to show that the circumstances of the assault were not in fact indecent, and for that purpose evidence of his intention would be relevant and admissible.’ |
It seems to us the question of whether or not a photograph is indecent cannot be related to the question whether or not an assault is indecent. An assault is an ephemeral matter, the mens rea of the offence being the subjective intent of the person who committed the assault. A photograph is a permanent matter. The question, as it seems to us, is whether the photograph itself is indecent. Photographs, after all, may last a large number of years, pass from hand to hand and so on. In our view it is not possible to relate the question of whether or not a photograph is indecent with the original motivation of the person who took it. It may be that the original motivation was perfectly innocent subjectively regarded; but if the photograph is one which right-thinking people would regard as indecent, the motivation of the original taker, in our view, cannot be a relevant matter.
What the judge did here was to rule that the circumstances in which the photographs came to be taken and the motivation of the defendant when he took them were relevant to the question of whether the photograph was indecent or not. Before the case was ever commenced he gave the ruling to which reference has already been made.
In our view of the facts of this case the correct ruling would have been to intimate that the only relevant evidence was the photographs themselves. We say that for this reason. There was in this case no issue but that the appellant had deliberately taken the photographs, that he had intended to take the photographs and that he intended to take the photographs in the form in which they ultimately appeared. We are by no means saying that evidence of the circumstances in which a photograph came to be taken or the motivation of the taker of the photograph are irrelevant if an issue is raised as to, for example, whether the photograph was taken accidentally, or whether the photograph included some indecency of which the photographer was at the time he took the photograph wholly unaware. If one takes perhaps the most obvious example: if the photographer averred as part of his defence that the photograph was taken by accident, because, for example, he had tripped and the trigger of the camera had been activated accidentally, or if he were to say: ‘I did take this photograph but I hadn’t got the slightest idea that at the moment I took it there was a small boy in an indecent posture,’ then the question would arise as to that defence. It may well be that it would be very relevant then to examine the circumstances in which the photograph came to be taken and perhaps his motivation. As was mentioned in the course of the argument, if his defence was: ‘This was purely accidental,’ but there was evidence which was capable of rebutting that, and there was evidence that he was sexually motivated by the sort of photograph that was taken, it would be a matter for the jury to consider whether or not the photograph was deliberately and intentionally taken. So for that purpose the circumstances in which the photograph was taken and the motivation of the taker of the photograph might well be relevant matters. But they would go to rebut the defence of accident or the inadvertent inclusion of indecent matter at the moment the photograph was taken. In our view they would not be relevant to the wider question as to whether the photograph was or was not indecent.
We would regard as a more apt parallel in such cases, cases, for example, relating to blasphemy, where it was held that the mens rea was simply an intention to publish, excluding from the mens rea the question whether or not the author of the blasphemy did or did not intend to be blasphemous. The court held finally in the House of Lords in Reg. v. Lemon [1979] AC 617, by a majority, that the mens rea was the intent to publish and if what was in fact published was in fact blasphemous, then the offence was proved. It may well be that blasphemy is quite separate topic and not suitable for any form of comparison with the instant case.
Other cases which have occurred have arisen under the various postal Acts, in which the question of whether that which was consigned to the post was or was not indecent. Those perhaps might be more relevant – for example Reg. v. Stamford [1972] 2 QB 391, which has already been cited.
In our view, however, the correct formulation of the test for the jury in this case was:
(1) is it proved that the defendant took the photograph deliberately and intentionally? By the photograph, we mean the photograph of the subject as ultimately disclosed by the photograph produced.
(2) If they were satisfied that the photograph was deliberately and intentionally taken, was it indecent? The two things are different. On the question of whether the photograph was or was not indecent, the jury had to apply the test as stated by the judge, or as stated in Reg. v. Stamford, by applying the recognised standards of propriety. In other words the question of whether or not the photograph was indecent or not is a matter for the appraisal of the jury applying those standards.
In reaching their conclusion as to whether the photographs were or were not indecent, the circumstances in which they were taken and the motivation of the taker are, in our view, irrelevant. We are fortified in that view by the terms of section 1 of the Act of 1978. The preamble, in our view, begs the question in issue here – ‘to prevent the exploitation of children by making indecent photographs of them.’
Mr Pascoe on behalf of the Crown has argued that the purpose of the Act is to prevent the exploitation of children, and that children are exploited, if the appropriate circumstances are proved, simply by being asked to pose for a photograph. We do not consider that that can be right, unless a different test of indecency is to be applied to (b), (c) and (d) than is applied to section 1(1)(a). Paragraphs (b) and (c) read:
| ‘(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; … ‘ |
In our view it would be quite impossible to attribute to a defendant charged under (b) or (c) – that is to say possession with a view to distribution – any test as to whether the photographs were indecent by reference to the circumstances in which they came to be produced. Those circumstances would probably be wholly unknown. Possession with intent to distribute may take place years later. The question of whether or not the defendant was guilty of that would depend upon the jury being satisfied that the defendant intended to distribute and, secondly, that the photographs were indecent. The original circumstances of the taking of the photographs, in our view, would be impossible to establish and would add nothing to the offence. A photograph accidentally taken might still be ‘indecent’ for the purposes of paragraphs (b) or (c) or (d).
If Mr Pasco’s argument is right – we think he really concedes this – it involves the proposition that a different test of indecency is to be applied for offences under paragraphs (b), (c) and (d) than is applied under (a). We would regard that as being, if not impossible, not a construction of the section which would be appropriate. Such a construction is avoided if the section is construed in the way that we have suggested, that is to say the question for the jury is whether the photograph of the child is indecent.
We have been referred to a decision of this court in Reg. v. Owen [1988] 1 WLR 134, in which as a matter of construction this court held that the age of the child was relevant, since it would have to be proved in order to prove the offence at all. And, as a matter of construction, in the phase ‘to take an indecent photograph,’ the word ‘indecent’ qualified the photograph of the child and not the words ‘to take’. We do not think that for the present purposes that case bears on the decision which we have to make, which is whether or not the proper test is for the jury to decide by looking at the photograph whether or not it is indecent by applying the recognised standards of propriety to it. In other words, the circumstances and the motivation of the taker may be relevant to the mens rea of the take as to whether his taking was intentional or accidental and so on, but it is not relevant to whether or not the photograph is in itself indecent.
It follows that on the facts in this particular case, in our view the initial ruling of the judge was incorrect. Since there was no issue as to whether or not the taking was intentional, he should have ruled that the only material which should go before the jury, in the light of the agreed facts, would be the photographs, for them to decide whether they were indecent or not. It follows also that his later ruling permitting the answers, to which we have referred, to go before the jury, was in our view also incorrect in so far as it was suggested that those answers were relevant to the question of whether or not the photographs were indecent. As we have already said, it may well have been relevant had there been an issue as to the mens rea of the defendant at the moment that he took the photographs on the question of whether or not the photographs were intentionally and deliberately produced.
For these reasons, in our view, it cannot be said that the jury would necessarily have come to the same conclusion with regard to photograph 2, the count upon which they convicted, had they not been directed that the circumstances and motivation of the appellant were relevant to the question of whether or not the photographs were indecent. Accordingly, the appeal will be allowed and the conviction quashed.
Appeal allowed.
Conviction quashed.
The following cases were referred to in the judgement:
Reg. v. Court [1987] QB 156; [1986] 3 WLR 1029; [1987] 1 All ER 120, CA; [1988] 2 WLR 1071; [1988] 2 All ER 221, HL(E)
Reg. v. Lemon [1979] AC 617; [1979] 2 WLR 281; [1979] All ER 898, HL(E)
Reg. v. Owen (Charles) [1988] 1 WLR 134 CA
Reg. v. Stamford [1972] 2 QB 391; [1972] 2 WLR 1055; [1972] 2 All ER 427 CA
No additional cases were cited in argument.
Solicitors: Crown Prosecution Service, Hants.
[Reported by EIRA CARYL-THOMAS, Barrister-at-law]