Factual and Procedural Background
On 2 April 2013, in the Crown Court at The City, before Judge Cottle and a jury, the Appellant was convicted of six counts of indecency with a child contrary to section 1(1) of the Indecency with Children Act 1960 and one count of indecent assault under section 14 of the Sexual Offences Act 1956. He was acquitted on other counts. On 4 June 2013, the Appellant was sentenced to twelve months' imprisonment on each count, suspended for two years.
Two applications were before the court: first, by Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988 seeking leave to refer the sentence as unduly lenient; second, by the Appellant for leave to appeal against conviction, referred to the Full Court by the Registrar.
The allegations related to conduct between 1972 and 1987, primarily involving photographic and physical acts with children. The Appellant, an artist and photographer, had a history of photographing children, often naked, and lived in The State at a property known as Barley Splatt. Earlier investigations took place in 1993 and 2006, including seizure of the Appellant’s computer which contained numerous "pseudo images" created via computer software depicting highly explicit and prejudicial imagery involving children.
Previous trials relating to similar charges had collapsed or been stayed due to procedural issues or abuse of process claims. The trial before Judge Cottle relied heavily on witness testimony from individuals who were children at the time of the alleged offences, detailing multiple incidents of indecent acts and photography.
The Appellant denied any sexual interest, claiming artistic intent and describing the pseudo-images as sketches illustrating moral corruption, intended for a publication that never materialized. The defence also presented character witnesses supporting the Appellant’s reputation in the artistic community.
Legal Issues Presented
- Whether the Attorney General should be granted leave to refer the sentence as unduly lenient.
- Whether the Appellant should be granted leave to appeal against conviction, including issues concerning the legal definition and ingredients of the offence of indecency with children under the Indecency with Children Act 1960.
- The admissibility and relevance of the pseudo-images as evidence of bad character.
- The propriety of the addition of further counts to the indictment during trial.
- Whether the jury directions, including those on good character and possible inconsistent verdicts, were appropriate and lawful.
Arguments of the Parties
Appellant's Arguments
- The Appellant challenged the legal sufficiency of evidence for counts involving photographs, arguing that the acts did not amount to indecency under the Indecency with Children Act 1960.
- He contended that the judge erred in allowing the addition of counts 10, 11, and 12 to the indictment, as these were not supported by proper evidence.
- The Appellant argued that the pseudo-images were irrelevant, highly prejudicial, and created long after the alleged offences, thus should not have been admitted.
- He claimed the good character direction was improperly limited and diluted by the judge’s reference to the pseudo-images.
- The Appellant suggested that some verdicts were inconsistent, particularly acquittals on certain “tasting game” counts.
Attorney General's Arguments
- The Attorney General submitted that the sentence was unduly lenient, failing to properly take into account the seriousness, extent, and impact of the offending.
- It was argued that the judge erred by suspending the sentence without sufficient exceptional circumstances as required by statute.
- The Attorney General challenged the Appellant’s justification of the photographic posing as artistic, asserting that this did not justify suspension or mitigation.
- Regarding the evidence, the Attorney General maintained that the pseudo-images were relevant to establish sexual interest and were properly admitted.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Colin Leslie Francis (1989) 88 Cr App R 127 |
Clarification of the offence of indecency with children requiring the act to be with or towards the child. |
Used to assess whether the photographic acts met the statutory definition of indecency; court found the judge’s directions consistent with this precedent. |
| Director of Public Prosecutions v Burgess [1971] QB 432 |
Interpretation that "with or towards a child" is a single phrase requiring involvement of the child in the gross indecency. |
Supported the court’s view on the necessary ingredients of the offence and the jury directions given. |
| R v Sutton (1977) 66 Cr App R 21 |
Distinction between indecent assault and prosecution under Indecency with Children Act for acts in indecent situations not amounting to assault. |
Referenced to explain why certain photographic acts are charged under the Indecency with Children Act rather than Sexual Offences Act. |
| R v B [2011] EWCA Crim 1630 |
Relevance of evidence of later created indecent images to prove earlier offending and sexual interest. |
Justified admission of pseudo-images created in 2006 as relevant to the Appellant’s sexual interest during the earlier offending period. |
Court's Reasoning and Analysis
The court first addressed the legal definition of the offence of indecency with children under the 1960 Act, affirming that the act must be one of gross indecency with or towards a child under 14, involving the child in the act. The court found the judge’s directions to the jury were correct and sufficiently comprehensive, including the requirement that the Appellant intended to derive sexual satisfaction from the act.
The court rejected the Appellant’s submission that the Crown failed to provide evidence for the photographic counts and found no prejudice resulting from the amendment of the indictment to include counts 10, 11, and 12 as gross indecency charges rather than indecent assault.
Regarding the pseudo-images, the court acknowledged their highly prejudicial nature but concluded they were relevant evidence of the Appellant’s sexual interest in children and properly admitted with appropriate judicial directions to limit prejudice. The court found no misdirection on this point.
On the good character direction, the court held that the judge’s approach was clear and fair, properly allowing the jury to consider the impact of the pseudo-images on the Appellant’s character without unfair dilution.
The court found no inconsistency in the jury’s verdicts, explaining that the acquittals on certain counts were consistent with the evidence and the standard of proof required.
In relation to sentencing, the court considered the mitigating factors—Appellant’s age, lack of previous convictions, and artistic reputation—against significant aggravating factors: the number of victims, abuse of trust, serious impact on victims, and the nature of the offences. The court concluded the original suspended sentences were unduly lenient, particularly given the serious offence in the bath incident and the sexual purpose behind the photographic offences.
The court set out an increased sentence structure: 18 months’ imprisonment for the serious bath incident, nine months concurrent sentences for the photographic offences, and six months concurrent for the indecent assault, totaling two years and three months’ imprisonment, with no suspension.
Holding and Implications
The court granted the Attorney General leave to refer the sentence and QUASHED the original suspended sentences imposed on the Appellant. It substituted a total custodial sentence of two years and three months’ imprisonment, reflecting the seriousness of the offences and the aggravating factors present.
The court refused the Appellant’s application for leave to appeal against conviction, holding that the convictions were safe and supported by ample evidence and proper jury directions.
This decision directly affects the parties by increasing the custodial sentence and upholding the convictions but does not establish a new legal precedent beyond affirming existing principles concerning the interpretation of the Indecency with Children Act 1960 and the admissibility of evidence relating to bad character and subsequent indecent images.