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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Fox v R. [2009] EWCA Crim 653 (02 April 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/653.html Cite as: [2009] EWCA Crim 653

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT EXETER
Judge Neligan

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/04/2009

Lord Justice Scott Baker :

1. On 7 November 2007 in the Crown Court at Exeter before Judge Neligan the applicant was convicted of two counts of causing a child under the age of 13 to engage in sexual activity contrary to s.8(1) of the Sexual Offences Act 2003 and two counts of taking an indecent photograph of a child contrary to s.1(1)(a) of the Protection of Children Act 1978. On 7 January 2008 he was sentenced on each count to 12 months imprisonment suspended for two years to run concurrently. It was a requirement of the suspended sentence under s.190 of the Criminal Justice Act 2003 that the applicant should not take a photograph of any child under the age of 17, and should not approach within 100 metres of educational establishments, including nurseries, infant, junior or secondary schools and colleges. The applicant was required to register on the sex offenders' register for a period of ten years and was disqualified from working with children until further order. Further orders were made in the form of a Sexual Offences Prevention Order under sections 104 and 106 of the Sexual Offences Act 2003. They were to run for a period of ten years.
2. The applicant was acquitted of two similar offences relating to a third child and the Crown offered no evidence in respect of an offence of possessing indecent photographs of children.
3. His application for leave to appeal against conviction was referred to the Full Court by Mackay J. His application for leave to appeal against sentence was subsequently referred to the Full Court by the registrar.

The facts

4. In the latter part of 2005, when collecting photographs from a photographic shop, Mrs JB met the applicant. He told her he was a photographer. She arranged for him to photograph her daughter, C. The applicant did so between 1 November 2005 and 28 March 2006 when C was between 6 and 7 years old. These photographs gave rise to counts 1 and 2. Mrs AE also arranged for the applicant to photograph her two daughters, A and J. These photographs were taken between 1 March and 1 June 2006. A was aged 7 and J aged 4. The photographs of A gave rise to counts 3 and 4, and those of J to counts 5 and 6 of which the applicant was acquitted.
5. In March 2006 the police were notified that the applicant had approached female students at a secondary school. He photographed three of them, KMM (aged 16) KLH (aged 16) and AH (aged 15). On 27 March 2006 the applicant was arrested and his van (in which he lived) was searched. Photographs, clothing and a notebook were seized. Further inquiries by the police led them to discover that he had photographed C, A and J. The prosecution case was that the photographs of C, A and J were indecent and taken for the applicant's sexual gratification. In choreographing the girls to strike poses for the photographs the applicant, it was alleged, caused them to engage in sexual activity. The prosecution relied on the photographs and also on clothing and a notebook which had been seized from his van to establish his state of mind. It was also alleged that certain poses struck by the girls were the same as those in which he had photographed grown women. It was said he was obsessed with young girls to the extent of going so far as to collect their clothing, including under clothing.
6. The defence case was that the photographs were not indecent. The girls posed themselves. As to the photographs seized from his van, he was compiling an artistic book of nude photographs of women. He had done all that was reasonable to ensure that his work was decent.
7. The issues for the jury were in respect of count 2 and 4 whether the photographs were indecent and in respect of counts 1 and 3 whether in causing the girls to pose the applicant caused them to engage in sexual activity.
8. When the applicant was interviewed he gave an account which was consistent with that which he gave subsequently at trial. He said he was embarking upon an artistic project. He denied obtaining sexual gratification from the photographs. He had always photographed C in her mother's presence because of her age. KMM, KLH and AH had lied about having their parent's permission.
9. For most of the trial the applicant represented himself. Before us he has been represented by Mr Chaize, who did not appear in the court below. The case at trial largely centred around counts 1 and 3 and also count 5 of which the applicant was acquitted. The allegations in these counts were that the applicant caused the child concerned to engage in an activity, namely posing for photographs, the circumstances being that such activity was sexual. The Crown relied on s.78(b) of the Sexual Offences Act 2003 which provides:

"For the purposes of this Act……penetration, touching or any other activity is sexual if a reasonable person would consider that –

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual."

10. Because of the nature of the poses it is said that the activity could be sexual and it was if the applicant had the requisite intent. In other words, did the applicant get the girls to pose as they did in order to obtain some sexual satisfaction? The prosecution adduced three different categories of evidence to enable the jury to infer that he did have the requisite state of mind. These were (1) photographs displayed in the interior of his van and items of girls underwear seized from the van, (2) evidence from KMM, KLH and AH and in particular indecent photographs that the applicant had taken of them and (3) extracts from a notebook belonging to the applicant that had been seized from his van.

Were the photographs indecent?

11. Before turning to the detail surrounding the evidence adduced to show the applicant's state of mind we should deal shortly with the grounds of appeal relating to counts 2 and 4. These counts alleged, in the case of count 2, that the applicant took an indecent photograph exhibit DCC14A of C and in the case of count 4 an indecent photograph exhibit KDH14 of A, in both cases contrary to s.1(1)(a) of the Protection of Children Act 1978. The Crown contended that counts 2 and 4 were sample counts which identified a single photograph from a series. In a pre-trial note, counsel for the prosecution, Mr Oldland, said that other exhibits not specified in the particulars relied on to prove these counts were:

Count 2: DCC14B – H.

Count 4: KDH5 – 8 and 10 – 19.

That is obviously an error with regard to count 4 because KDH14 is the photograph named in the indictment rather than one of the others in the series.

12. In respect of count 2 the jury was given a bundle (exhibit 1) containing seven photographs of C (not 8 as specified in the note). In respect of count 4 the jury was given a bundle (exhibit 2) containing 14 photographs of A and 2 of J. In each bundle the first photograph was the one named in the two counts.
13. The judge summed the case up in the way it had been put by the Crown. He said:

"I direct you that you have to assess each of the photographs in album 1 – those of (C) and those in album 2 – those of (A)…..in an objective way."

Then he said the jury had to consider two questions, first whether the applicant took the photographs and second whether the photograph they were assessing was an indecent photograph. He went on:

"For this purpose you look at each one. The prosecution must make you sure that at least one in the album relating to that child meets the test of indecency. The prosecution do not have to prove that all of the photographs of that child are indecent before you can find Mr Fox guilty on the count that you are considering to which the photographs relate; at least one has, in your judgment, to be indecent."

He repeated at 20D that they only had to be sure that one of the photographs of each girl was in indecent photograph. He said the same thing again at 28F. The jury was also given a list of questions which repeated that:

"You only need to be sure that at least one of the photographs…of the girls is indecent applying the recognised standards of propriety."

14. The difficulty seems to us to be this. Counts 2 and 4 clearly identify one photograph. The judge's direction leaves it open to the jury to convict the applicant provided they are satisfied that one of the photographs in each album is indecent, not necessarily the one named in the particulars of offence, and indeed different jurors might not have the same view about which photograph is indecent. Mr Oldland submits the photographs are so similar the point is without substance and that no objection was taken at the trial. We cannot accept either of these arguments. The judge made it clear that the jury were not expected to regard all the photographs as falling on one side of the line or the other. The jury should have been directed to focus on the first photograph in each bundle which was the one specified in the particulars of offence. Accordingly the convictions on counts 2 and 4 are unsafe and cannot stand.
15. There is a further point with regard to count 2. Although it was made clear in R v Stamford 56 CrAppR 398 at 405 that the issue of whether a photograph is indecent is entirely a matter for the jury to decide, it has to be of such a nature that a jury properly directed could conclude that it was indecent. We are very doubtful whether photograph DCC 14A of C crosses that threshold. However, since the appeal on count 2 succeeds on the other ground it is unnecessary to decide the point. We do not have the same doubts about KDH 14 in relation to A.

The applicant's previous convictions

16. The applicant gave evidence of his previous bad character. His offences were of theft and he had pleaded guilty in each case. One of the offences of theft was from his grandfather in 1987. There was an altercation during which the grandfather fell downstairs and sadly died. The applicant was charged with his murder but acquitted. He was given a conditional discharge for two years for the theft. Mr Chaize submits that none of his convictions was probative of either a propensity to commit sexual offences or to be dishonest. He says the applicant, who was representing himself, made a bad mistake and the judge should have stepped in or at the very least summed up in terms more favourable to the applicant then he did. He should have told the jury to disregard bad character. The judge pointed out that the applicant had not been in trouble for 17 years and directed the jury as follows:

"A person with a bad character is less likely, you may think, to tell the truth, but it does not mean to say that such a person is incapable of telling the truth. Indeed, Mr Fox argues that he is more likely to be telling you the truth now because he has owned up, as it were, in your presence to what he did all that time ago when he was a youngster; so you must decide to what extent, if any, his character helps you when judging his evidence. Whatever your view is a matter for you, but I should be inclined to disregard entirely those convictions for minor matters so long ago. He said himself he was "a silly young man".

The judge might have given a direction in somewhat stronger terms but the direction that he gave was perfectly adequate.

Evidence of the applicant's purpose

17. We now turn to the three categories of evidence admitted by the judge to show the purpose of getting C and A to pose for photographs. In January 2007, long before the trial was due to start, Mr Oldland notified the defence that the Crown would be relying on the contents of the applicant's notebook, his behaviour towards the three older girls whom he had photographed on 22 March 2006 and the contents of his van which showed an interest in pre-pubescent girls. He said in a written note provided to the defence that he relied on these matters:

"in order to establish the purpose in the defendant's mind when he posed (C, A and J) for photographs. The prosecution do not accept, as asserted by the defendant in interview, that this behaviour was for some sort of artistic project being conducted by the defendant."

A bad character application was enclosed with the note and it appears that the Crown was at that stage seeking to adduce the evidence either at common law or under the bad character provisions of the Criminal Justice Act 2003.

18. The application was heard by Judge Neligan on 21 September 2007 i.e. about a month before the start of the trial. He pointed out that all he was concerned with was admissibility and that he had to consider s.101 of the Criminal Justice Act 2003 and the various gateways in particular (d) 'an important issue between the defendant and the prosecution' and (f) 'to correct a false impression given by the defendant.' But he said admissibility was really governed by the decision of the Court of Appeal (Criminal Division) in R v Weir and Others [2006] 2 All ER 570, in particular the case of Manister at para 95:

"However, once it is decided that evidence of the appellant's sexual relationship with B did not amount to 'evidence of bad character', the abolition of the common law rules governing the admissibility of 'evidence of bad character' by s.99(1) did not apply. We have no doubt that evidence of the relationship was admissible at common law, in the particular circumstances of this case, because it was relevant to the issue of whether the appellant had a sexual interest in A. It was capable of demonstrating a sexual interest in early or mid teenage girls, much younger than the appellant, and therefore bore on the truth of his case of a purely supportive, asexual interest in A. It was not in our judgment unfair to admit the evidence (see s.78 of the Police and Criminal Evidence Act 1984)."

And at para 97:

"So far as C's evidence was concerned, the judge did not expressly rule on whether it amounted to evidence of "bad character" for the purposes of the Act, or was simply relevant as part of the background as to what was going on in the sister's family, involving the appellant. Unattractive as the alleged conversation was, we do not consider that it could safely be judged to amount to reprehensible conduct on the appellant's part. But his words, with their implied admission of sexual attraction to a 15-year-old C, were again, in our view, clearly relevant to the issue of whether the appellant was sexually attracted to A, and therefore admissible for the same reasons which apply to the sexual relationship with B. It was not unfair to admit C's evidence."

Accordingly, the judge decided the evidence in relation to the three older girls was admissible at common law. Then he added:

"Moreover, I am also satisfied that it can be admitted under the provision of s.101, but I need not separately decide that point because I am satisfied it is admissible at common law."

19. He then went on to consider s.78 of the Police and Criminal Evidence Act 1984 pointing out that the evidence was on the face of it prejudicial but that the fact that it was prejudicial to a defendant's case did not mean it had to be excluded. He allowed the evidence to be admitted, but said he would give the jury a very clear and careful direction how they were to treat the evidence so as to eliminate the applicant's apprehension of unfairness. Counsel then reminded the judge that the notebook was also the subject of the application and the judge said his rulings also covered it. Other than the notebook, the contents of the caravan do not appear to have been considered on this application.
20. The problem with Manister is that the observations of Kennedy L.J, to which the judge referred, and which we have cited, were premised on the basis that his sexual relationship with B did not amount to evidence of bad character. The judge does not appear to have applied his mind to whether each or all of the three categories of evidence sought to be admitted in the present case did or did not meet the statutory definition of bad character. All he said was that he was satisfied that 'it' i.e. the evidence of the three girls and the notebook could be admitted under s.101.
21. After the jury had been empanelled the applicant made a further application for the notebook to be excluded, arguing that it was written some years before when he was suffering from a mental disorder and it was not the product of his real mind when his health had recovered. He put some medical material before the court and submitted, inter alia, that there would be a breach of Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 if the notebook was admitted.
22. The judge rejected these submissions and said it was entirely for the jury what they made of it but, on the face of it, it showed that the applicant had at the time the photographs were taken an interest in pre-pubescent girls. He repeated it was highly relevant and admissible and he had seen nothing to revise his earlier ruling. He also repeated that the jury would require a very careful direction about it.
23. In our view the judge was in error in concluding that the evidence in relation to the older girls and the notebook could be admitted either at common law or as bad character evidence. The same is true of the contents of the van. The judge should have decided which route it was appropriate to go down. Section 98 of the Criminal Justice Act 2003 provides that:

"References in this Chapter to evidence of a person's "bad character" are to evidence of, or a disposition towards, misconduct on his part, other than evidence which –

(a) has to do with the alleged facts of the offence with which the defendant is charged, or

(b) is evidence of misconduct in connection with the investigation or prosecution of that offence."

24. Section 101 provides that evidence of bad character is admissible if, but only if, (our emphasis) it meets one of the seven criteria identified. Misconduct is defined in s.112 as "commission of another offence or other reprehensible behaviour."
25. Mr Oldland argues that all three categories of evidence are excluded from the definition of bad character, even if they otherwise qualified as misconduct, as defined, because they are to do with the alleged facts of the offence with which he is charged i.e. the two offences under s.8 of the Sexual Offences Act 2003. We cannot accept that submission which, if correct, would seem to us to eliminate from the bad character provisions a great deal of evidence relating to propensity or motive. The reference in s.98(a) to the facts of the offence seems to us to be to the actus reus. Here we are concerned with the applicant's intention and whether it was sexual – the mens rea.
26. Mr Oldland also relies on Manister, but the problem he faces is that the court there decided on the facts of that case that the judge was wrong to consider that an earlier sexual relationship with B was misconduct. True it is that B was 16 and Manister 34 when the relationship started but it was a perfectly legal relationship and did not involve the commission of any offence and Kennedy L.J said that the judge was wrong to conclude that the relationship between Manister and B without more amounted to evidence of a disposition towards misconduct on his part. In other words it did not qualify as "other reprehensible behaviour."
27. In our view there were in this case three very distinct categories of evidence the Crown was seeking to admit and the judge should have gone through each separately and carefully to see whether it fell within the bad character provisions of the Criminal Justice Act 2003 and if so he should have applied the provisions of the legislation. If it did not he then had to decide whether it was admissible at common law. As John Spencer put it succinctly in his book Evidence of Bad Character at para 2.20 on page 34:

"So, evidence of dubious behaviour which is bad enough to be described as "reprehensible" will constitute evident of "bad character" and, if sufficiently relevant to the issues in the case, will be admissible under sections 100 and 101 of the Act; and evidence of dubious misbehaviour which is not bad enough to earn this title will, if relevant, be admissible at common law, subject to the courts various discretionary powers to exclude."

The evidence in relation to the older girls

28. We take first evidence in relation to KMM, KLH and AH. We have seen the photographs of these girls and they are plainly of a higher order of indecency then those which are the subject of counts 1 to 4. As Mackay J pointed out in argument, it is now a criminal offence to take an indecent photograph of a person under the age of 18 (see s.7(6) of the Protection of Children Act 1978 as amended). The Crown Prosecution Service took the view that it was not in the public interest to prosecute the applicant in respect of these photographs which seems to us an entirely understandable decision. Nevertheless, on the Crown's case the photographs were indecent and taken for the applicant's sexual gratification and, in our view the girls' evidence and the production of the photographs qualified for consideration as bad character evidence and the judge should have applied the relevant provisions of the Act. Had he done so he would have had to consider, as he mentioned in his ruling on 21 September 2007, whether the evidence was admissible through gateway (d) to show the purpose for which he got C and A to pose and gateway (f) to rebut what he had said in interview namely that the posing of C and A was part of an artistic photographic project. These issues were not explored in any detail before us and it is unnecessary to resolve them in order to decide the appeal. Suffice it to say that in our view the Crown had a stronger case under gateway (f) than (d). Were the evidence admissible under (d) the judge would have had to consider s.101(3). Furthermore, s.78 of the Police and Criminal Evidence Act 1984 was also relevant when considering the cumulative effect of admitting more than one of the three categories of evidence if that course was taken.

The notebook

29. The jury was provided with a typed and edited version of the notebook. Did the fact that the applicant kept in his possession such a document fall within the description of other reprehensible behaviour? It certainly was not a criminal offence. There are references in it to such matters as smelling teenage girls' well worn knickers, school girls' furry pubic nests and looking up girls' skirts, as well as apparent memories or fantasies going back many years. The reader is inevitably left with the impression of a dirty old man, but the content of the notebook is evidence of thoughts rather than deeds. The judge said there were extensive entries that showed an interest in pubescent and pre-pubescent girls. The notebook was a private document which the applicant had no reason to expect would ever see the light of day. It is true that it contained many "dirty" sexual thoughts. Although one could exercise a moral judgment, we do not think that keeping such a private document expressing the author's thoughts can properly be described as a disposition towards reprehensible behaviour other than the commission of an offence. If we are wrong about that and the notebook were to fall within the bad character provisions, the court was required by s.101(4) to have regard to the time between the matters to which the notebook related (1998 to January 2003) and the offences (November 2005 to June 2006). This was considerable.
30. Was the notebook admissible at common law? Mr Chaize draws what he submits is an important distinction between the applicant's thoughts which are recorded in the notebook and implementing those thoughts. Does the probative value of the notebook outweigh its prejudicial effect? In our judgment the contents of the notebook were of limited, if any, probative value in deciding the applicant's state of mind when taking the pictures in counts 1 and 3 of the indictment some years later. On the other hand, their prejudicial effect was likely to be very considerable. There was additionally some medical evidence that the applicant was suffering from a mental disorder when he wrote the notebook. We do not think the notebook should have been admitted.

The contents of the van

31. The contents of the van do not seem to have been the subject of any ruling by the judge. We have seen the bundle of photographs exhibit 3. The relevant ones of the contents of the van are numbers 7 – 15. They include nudes, girls in various stages of undress and some of the poses were designed to make the girls look younger (i.e. they were wearing schoolgirl uniforms).
32. With three exceptions we do not think the photographs of the contents of the van or the clothing kept by the applicant were of any significant probative value. On the other hand the admission of this evidence was again likely to have been of significant prejudicial effect. The first two exceptions relate to photographs showing young women in blatantly sexual poses. One shows "Billy" sitting on steps with her legs apart with one knee raised so as to allow the photographer a clear shot of her genital area. This pose was similar to that adopted by A in photographs 1 and 2 of exhibit 2. There was also a photograph of "Louise" lying semi-clad on a bed in a distinctive sexual pose which was similar to the pose adopted by A in photograph 16 of exhibit 2. These photographs were in our view admissible at common law as similar fact evidence. The third exception is that there was one photograph of C displayed on the wall of the van next to pictures of older women in obviously sexual poses. This too was in our view admissible at common law. These three aspects of the contents of the van were probative to show the deliberate and intentional sexual nature of the posing.
33. It was important, in our view, that the judge assess each of the three aspects of the evidence sought to be admitted separately and decide whether (1) it should be admitted as evidence of bad character, and if so give his reasons under s.110 of the Criminal Justice Act 2003 and (2) if the evidence did not qualify as evidence of bad behaviour character whether it should be admitted at common law. It was then incumbent upon him when summing up to the jury to explain with care in respect of each aspect of the evidence how the jury should approach it and what it might or might not prove.
34. Despite his assurances that he would give the jury a clear direction how they should treat the evidence, his summing up was unfortunately deficient in this regard. He directed the jury that the prosecution relied on three sets of circumstances or facts to establish the applicant's intention. First that the contents of the van showed that the applicant had an interest in girls including pre-pubertal girls, he having written across pictures "I love sexy school girls." Then the taking of the pictures of the three older girls which, he said, according to the Crown's case, combined with the contents of the van to show the applicant's state of mind. Thirdly there was the notebook expressing his thoughts between 1998 and 2003 expressing his feelings at the time concerning young and pre-pubescent girls. He said to the jury that writing the entries in his notebook cannot have been for the purpose of his photographic project which he did not begin until 2004.

At 19f he said:

"In judging the defendants purpose at the time covered by the particulars of offence to each of counts 1, 3 and 5, considering the case against and for the defendant on each count separately, you are entitled to take into account any one or more of the following:

(a) the exhibits taken from inside the defendant's van; and/or

(b) the contents of the notebook; and/or

(c) the way in which each of (the three older girls) posed for the defendant to take photographs of them in March 2006."

35. What the judge should have done was to take each of the three aspects of the evidence that he admitted and carefully directed the jury's attention to what it could and could not prove. He did not do so, simply advising the jury it could help them to assess the applicant's state of mind when he took the photographs that are the subject of the indictment. Much of the evidence was prejudicial and, if it was admissible (which in our view for the most part it was not), the judge should have given the jury much clearer directions about its prohibitive value and what it did not prove. In so far as it was admissible as bad character evidence under the Criminal Justice Act 2003, it was incumbent on him to go carefully through the provisions of the Act.
36. We do not think the conviction on any of the four counts is safe and accordingly we grant leave to appeal and allow the applicant's appeal.