D & Ors, R. v [2011] EWCA Crim 1474

[2011] EWCA Crim 1474Case Nos : 2010/6216/B2 & 2011/1009/D2 & 2010/0890/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17 May 2011
Strand
London, WC2A 2LL
B e f o r e:
THE VICE PRESIDENT
(LORD JUSTICE HUGHES)
MR JUSTICE RODERICK EVANS
MRS JUSTICE GLOSTER DBE
R E G I N A
v
D
P
and
U
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Mr P Smith appeared on behalf of D
Mr J O'Higgins appeared on behalf of P
Mr K Scholz appeared on behalf of U
Mr M Dunford appeared on behalf of the Crown
J U D G M E N T
Between
D & OrsDefendantRCrown
[1]THE VICE PRESIDENT: We have heard these three cases together because they raise connected questions. Each defendant was convicted of offences of sexual abuse of children, in each case said to have been committed over a substantial period. Each of them denied any sexual contact with the children at all. In each case the judge admitted, under the bad character rules contained in the Criminal Justice Act 2003, evidence that the defendant had viewed and/or made indecent photographs of children. Each of the defendants contends that the judge was wrong to admit that evidence.[2]As will be seen, although the cases therefore raise overlapping questions, they are not identical. The basis on which the evidence was admitted varies from case to case. These cases accordingly need separate consideration, although the overlap between them makes it helpful to have been able to consider them together.[3]In all the cases a number of different possible bases of admissibility were advanced on behalf of the Crown. We emphasise that it is necessary to address separately the different possible gateways for the admission of bad character evidence to be found set out in section 101(1). It is of course true that if evidence is admissible through any gateway, it may then be considered by the jury in any way to which it is legitimately relevant, whether it has primarily been admitted on that basis or not - see R v Highton and others [2005] EWCA Crim. 1985, [2006] 1 Cr. App. R 7 at 125, paragraph [10]. That, however, does not relieve the court of the duty of establishing which gateway or gateways are applicable. That exercise must be undertaken. It must be undertaken, first, in order to ensure that bad character evidence is only admitted when the statute allows it. It must be undertaken, secondly, because the decision as to the relevant gateway or gateways will normally be of great help in identifying the way or ways in which the evidence can legitimately be used - that is to say the issues to which it is relevant. As Highton itself makes clear, it is not law that once bad character evidence is admitted, having by definition passed at least one gateway, it can thereupon be used by the jury in any way the jury chooses. On the contrary, it may be used on any issue to which it is legitimately relevant but not otherwise.[4]The important question which is common to these cases is gateway D. If a defendant is charged with sexual abuse of a child, is the possession of indecent photographs of children capable of being admitted by way of bad character evidence on the grounds that it is evidence of a sexual interest in children and thus relevant to an important matter in issue between the defendant and the prosecution. That is the issue with which we deal first.[5]Note that the words of the gateway do not use the expression "propensity". That word appears in section 103(1) which makes it clear that included amongst the issues between the Crown and defence is the issue whether the defendant has a propensity to offend as charged.[6]Evidence that a defendant collects or views child pornography is of course by itself evidence of the commission of a criminal offence. That offence is not itself one involving sexual assault or abuse or indeed of any sexual activity which is prohibited. It is obvious that it does not necessarily follow that a person who enjoys viewing such pictures will act out in real life the kind of activity which is depicted in them by abusing children. It follows that the evidence of possession of such photographs is not evidence that the defendant has demonstrated a practice of committing offences of sexual abuse or assault. That, however, is not the question for the purposes of gateway D. The question under gateway D is whether the evidence is relevant to an important matter in issue between the defence and the Crown. Is it relevant to demonstrate that the defendant has exhibited a sexual interest in children?[7]It seems to us that this is a commonsense question which must receive a commonsense answer. The commonsense answer is that such evidence can indeed be relevant. A sexual interest in small children or pre-pubescent girls or boys is a relatively unusual character trait. It may not be quite as unusual as it ought to be, but it is certainly not the norm. The case against a defendant who is charged with sexual abuse of children is that he has such an interest or character trait and then, additionally, that he has translated the interest into active abuse of a child. The evidence of his interest tends to prove the first part of the case. In ordinary language to show that he has a sexual interest in children does make it more likely that the allegation of the child complainant is true, rather than having coincidentally been made against someone who does not have that interest. For those reasons, we are satisfied that evidence of the viewing and/or collection of child pornography is capable of being admissible through gateway D. We emphasise that it does not follow that it is automatically admissible. There is nothing automatic about any of these bad character provisions. They require an exercise of judgment, specific, in every trial. Moreover, to say that the evidence is capable of admission under gateway D is only the first part of the exercise for the court. The court must also direct its attention to whether it is unfair to admit the evidence and of course in some cases it might be.[8]The evidence with which we are dealing is evidence of propensity in the true sense of that word, by which we mean evidence of a character trait making it more likely that the defendant did indeed behave as charged. We are conscious that in the shorthand of the criminal courts the word "propensity" is sometimes applied, no doubt conveniently, to the case where there is evidence that the defendant has previously committed an offence similar to that which is now charged. Propensity may of course be proved by evidence of the previous commission of such an offence, and it may well be that that is the kind of propensity evidence most frequently adduced, but it is not limited to that kind of evidence. On the contrary, it may include any evidence that demonstrates that it is more likely that the defendant did indeed behave as he has been charged. It is however important that juries should be reminded that they cannot proceed directly from the possession of photographs to active sexual abuse. They must ask themselves whether this further step is proved so that they are sure. The exact direction will depend on the facts of each individual case. But it may be particularly important to remind the jury that the extra step does not follow and must be proved. One example might be a case where a young child had discovered the existence of the pornography and there is a realistic possibility that he or she has, as a result of seeing them, either invented or imagined an act of abuse against him or herself. That is but one example.[9]Accordingly, we recommend that when photographs of this kind are admitted for the purpose of demonstrating a sexual interest in children the jury should be told in terms that that is the issue to which it is relevant. As will be seen the juries in the cases before us were told that the evidence was relevant to precisely that question.[10]We also recommend, although the form of the summing-up must be governed by the facts and circumstances of each case, that judges should consider including a warning to juries in a case where there is such a risk not to allow any revulsion of the use of child pornography to overcome the duty as jurors to examine carefully the question of whether the evidence shows that the interest has been translated beyond viewing and into active abuse.[11]In none of the cases before us were the photographs in fact actually shown to the jury. It seems to us that that is a sensible practice which should generally be adopted. It is unnecessary that the jury should see the photographs and it would carry the risk, if they did, that some at least might find it difficult to avoid the effects of distaste. It seems to us likely that in most cases a suitable description of the general contents of the photographs which had in fact been found can be agreed and presented to the jury. Care should be taken that that description should be as neutral and dispassionate as possible. In one of the cases before us the jury was given, by agreement, the descriptions of category of pictures to be found in the Copine scale. That is one way of doing it, but it seems to us better as a general proposition if what the jury is told by agreement is linked to the photographs actually found, rather than to a more generalised description of categories.[12]Those foregoing conclusions appear to us clearly to be supported by those cases to which we have been referred. We do not suggest, and nor did counsel, that we have been provided with a complete encyclopedia of every relevant decision and nor would it be possible.[13]We were referred to R v Weir [2006] 1 Cr. App. R 19, page 303. There the charge was indecent assault of a 10-year-old school friend of the daughter of the defendant's girlfriend. A single act was charged but evidence was adduced of other occasions when he had exposed himself to the girl and had indecent conversations with her. The relevant bad character evidence was a caution for taking an indecent photograph of a child some four years earlier. We agree that the actual decision in that case was that the evidence did not cease to be admissible because when the Secretary of State made an order prescribing categories for the purpose of section 103(4)(b) of the Act, the offence relating to indecent photographs was not included in the list of sexual offences. The decision in Weir was based on the wording of section 103(2) which clearly shows that proof of propensity is not confined to evidence of offences falling into a category thus prescribed. We agree accordingly that the court was not being asked to decide as a matter of ruling whether the making of the photograph was capable of providing evidence of propensity to commit the sexual assault on the indictment. Nevertheless, it is apparent that the assumption that it could underlay the decision in Weir. Not only did it not occur to counsel appearing for the appellant that it could not, but more importantly it clearly did not occur to any member of this court. Unless the evidence provided evidence of propensity, the question about categorisation would never have arisen.[14]It is also to be observed that in another of the cases dealt with in Weir, Manister, the court adverted to the fact that evidence going to show a sexual interest in young children would be admissible. There might be scope for discussion as to whether a fully consensual and legal relationship with a girl of 16 would amount to showing a sexual interest in children, but the principle to be extracted from the court's treatment of Manister at paragraph [96] is clear enough when the evidence really does show a sexual interest in young children, as the collection of child pornography, properly so-called, seems to us clearly may.[15]We were referred also to R v A [2009] EWCA Crim 513. There the trial judge had limited the admitted bad character evidence to photographs, films and the like demonstrating a particular interest in incestuous relationships. Accordingly, this court, it is correct, did not have to decide as a matter of ruling the broader question of whether the collection of child pornography falling short of a particular interest in incest would also be admissible. But the tenor of the court's ruling and of the decision of the judge approved by this court plainly demonstrates that it could. The judge in that case had said this:
"... a reasonable jury would be entitled to consider the complainant's independent complaint and assess it in the light of the defendant's subsequent computer misuse, and conclude that the proposition that the complainant should make her complaints against an innocent man who just happened later in life to develop peculiar sexual preoccupations consistent with the complainant's complaint is profoundly unlikely."
That brief expression of principle was approved by this court and would apply mutatis mutandis equally to a demonstrated sexual interest in young children.[16]We do not think that there is anything in the case of Tully and Wood [2006] EWCA Crim 2270 which says otherwise. There the charge was robbery of a taxi driver and the issue was identity. The judge encouraged the Crown to apply to adduce and then admitted every single conviction that each of the two defendants had for any form of dishonesty. This court unsurprisingly said that so to act was not to apply R v Hanson but was far too wide. It said, and we agree, that the previous behaviour must bear a sufficient relationship to the offence now charged for it to be capable of showing a propensity to commit such offence and, moreover, to do so without unfairness.[17]Mr Scholz invites us in the present cases to treat a demonstrated sexual interest in children as analogous or equivalent to dishonesty as dealt with in Tully and Wood. That does not seem to us to be a legitimate analogy. Dishonesty is both far less particular and far less unusual than a sexual interest in young children. Nor, as it seems to us, is there anything to the contrary to be found in R v Clements [2009] EWCA Crim. 2726. There the defendant was charged with two sexual offences on adults. He had a previous conviction for consensual sexual behaviour, apparently amounting to kissing, involving a 14-year-old girl. This court held that that previous conviction was not properly admissible. The reason was that it was capable of showing nothing more than a very generalised history of exceeding sexual boundaries, moreover on a single occasion only. In a case where what was now charged were offences of an entirely different kind, unwelcome sexual force against adults, that was simply not sufficient. The circumstances of the previous incident were entirely different from what was charged and it was literally of no help to try to prove the offence now being tried. But in that case the previous incident did not show any unusual form of sexual interest which was relevant to the charges now before the court.[18]We were referred also to R v Terrell [2007] EWCA Crim 3079, [2008] Cr. App. R (S) 49 at 292. One of the issues in that case was whether a risk that a defendant might re-offend by again downloading pictures of child pornography carried with it a sufficient risk of serious harm for the purposes of the dangerous offender provisions of the Criminal Justice Act 2003 to justify a sentence of imprisonment for public protection - see paragraph [28] of the decision. This court held that it did not because there was too remote a connection between the commission of any such further offence and serious harm, by which the statute means death or serious personal injury, physical or psychological. But there the potential serious harm which had to be considered was to any child photographed. In this case we are not concerned with a future risk of serious harm to anyone who might be photographed. We are concerned with whether the viewing of amounts of child pornography is or is not capable of demonstrating the kind of sexual interest in children which might lead a defendant to commit particular past offences charged. The question is entirely different from Terrell which is irrelevant.[19]For all these reasons, our general conclusion is that the possession of child pornography may, depending on the facts of the case, demonstrate a sexual interest in children which can be admissible through gateway D upon trial for offences of sexual abuse of children. It will not always be so. There may be a sufficient difference between what is viewed and what is alleged to have been done for there to be no plausible link. It may be right to exclude the evidence as a matter of discretion, particularly if its probative value is marginal. But that it is capable of being admitted under gateway D we entertain no doubt.[20]As we shall see, the judges in the cases before us also admitted the evidence in question on a number of other bases. We add these brief general observations.[21]In two cases the judge was ask to admit the evidence on the basis that it went to correct a false impression - that is to say gateway F. This gateway is in our experience too often invoked. Before it is invoked attention needs to be paid to section 105 which explains it. First, it needs to be remembered that a defendant who has on proper analysis done no more than deny the offence is not by doing so giving a false impression to the court for the purposes of gateway F. If that were true, virtually every defendant would be within gateway F. Gateway F and section 105 are in broad terms concerned with attempts to mislead the court in a way which goes beyond denying the offence, even if the offence subsequently be proved. Second, the false impression must be one which is given to the court - see section 105(1)(a). It is correct that it may be given via a police interview, but only if that interview is to be given in evidence - see section 105(2)(b). If, however, the defendant withdraws the impression or dissociates himself from it, gateway F ceases to apply - see the precise terms of section 105(3). Third, we caution that if evidence is admissible only under gateway F and not also under gateway D, considerable care would be required in summing up because the jury would have to be warned that the evidence is not capable of being used as evidence of propensity.[22]In one of the cases before us the judge was asked to admit the evidence on the basis that it was important explanatory evidence, that is to say gateway C. This gateway is even more open to misuse. It is designed to deal with the situation in which a jury cannot properly understand the case without hearing evidence which amounts to or includes evidence of bad character. A simple example is that the offence alleged was committed when the defendant was in prison or police custody, or involved alleged revenge for a supposed wrong done in the course of some previous criminal venture. Gateway C is, we emphasise, not a substitute for gateway D. It is not possible to dress up a failed case of gateway D as gateway C.[23]With those general observations we turn to the particular cases before us. D[24]D was charged with Sexual abuse offences alleged to have been committed against his niece over the period of about two to three years when she was aged about 11 to about 14. He was a man of approximately 40 at the time. He lived in a caravan on land adjoining the girl's house where she lived with her parents (his sister) and subsequently he lived in a flat of his own that she visited.[25]On his computer when he was arrested a number of things were found. First, there was a large quantity of Level 1 pictures of unclothed young girl children. Secondly, there was a single photograph of an act of digital penetration of a female. The photograph did not show much of the female in question and her age was not apparent from the photograph and could not be divined. Thirdly, the defendant had two photographs which he himself had taken of a school friend either of his niece or of another member of the family. The girl in question was about 14 or perhaps 15 and the photographs were of her unclothed. Fourthly, a computer examination revealed a number of searches made by the defendant on the Internet, plainly for child pornography, under search criteria commonly encountered in such cases such as "Lolita".[26]The Crown applied to admit this evidence on a number of different bases. First, under gateway C as important explanatory evidence. Second, under gateway D as showing a sexual interest in young girl children. Thirdly, under gateway F as evidence to correct a false impression said to have been given by the defendant either in interview or in court in two respects:(a) in denying that he had any interest in pubescent girls and(b) in saying that the relationship between himself and his niece was a close but entirely innocent one, loving and decent. Lastly, and fourthly, the Crown applied to admit the evidence under gateway G on the grounds that the defendant made it part of his case to suggest that far from having abused his niece, he had had to resist her attempts to seduce him.[27]The judge concluded that large quantity of Level 1 photographs ought to be excluded. The other evidence however he admitted under gateways D, F and G, but not C (important explanatory evidence). The important ruling is his ruling as to gateway D. For the reasons which we have already given, we are satisfied that this evidence was properly admitted under gateway D.[28]The judge however erred, as we think, in admitting the evidence of the single photograph of digital penetration. It was impossible to tell from the photograph whether it was one of a child or a grown woman. It is true that the officer who had examined the photographs was able to say that it was in fact a child, but he could only say that because he had seen the same image elsewhere than on the defendant's computer and with it had seen a whole series of the same subject. It was that information, not available to the defendant, which revealed that the subject was a child. The defendant had pleaded guilty to the possession of this photograph for the very good reason that it was in fact an indecent photograph and it was in fact a photograph of a child. The judge seemed to think that once it was established it was in fact a child that concluded the question of its admissibility. That was wrong, it did not. Admissibility depended not only on showing that an offence had been committed, but on showing that the defendant had an unusual sexual interest in children and if you could not decide that he knew that it was a child it could not serve that purpose. Nor do we agree that the mere fact that it showed digital penetration, which was one of the activities that it was alleged D had carried out against his niece, was sufficient to make it admissible. We do not think that it can reasonably be said that digital penetration is by itself an unusual sexual activity. That said, the photographs which the defendant had himself taken of the school friend were undoubtedly in the category of behaviour which did tend to show a sexual interest in children. They were admissible for the reasons which we have explained.[29]We agree that there was an apparent inconsistency between the ruling that the Internet searches for "Lolita" and the like were admissible, whereas the product of them, the large number of Level 1 photographs, were not. The right conclusion would have been that both those things were admissible evidence. The clear construction of the searches were that they were searches for indecent photographs of girl children. Accordingly, given the admissibility of this evidence, the fact that the single additional photograph was before the jury when it did not carry the implication contended for, does not, we are satisfied, affect the safety of the conviction.[30]The Crown had advanced its case under gateway C, important explanatory evidence, as follows:
"The evidence will assist the jury in deciding as to an important issue in this case, namely whether the defendant has an interest in sexual activity with underage girls..."
We have, we think, said enough to demonstrate that that is an assertion of propensity which goes to gateway D and has nothing to do with gateway C. The judge, as we have said, did not admit the evidence under this heading. There would not be the slightest difficulty in understanding this case without the bad character evidence. It would simply be a case which lacked additional relevant admissible evidence. The application was to treat C as if it were the same as D and that must not be done.[31]As to gateway F (false impression) the Crown relied upon the fact that in interview when the defendant was asked if he had an interest in teenage girls and said he had not. First, there is some doubt about whether that was in fact before the jury in any event, but even if it had been it was mere denial. So was his assertion that his relationship with his niece was not of an ordinary but close uncle and niece.

The judge dealing with this aspect of the case said this:

"It seems to me that that evidence should go before the jury if only because it demonstrates that he had an interest in young pubescent children but also because it goes to correct a false impression which was created by the defendant which is that he is a perfectly honourable uncle of [the girl], who is the complainant in the trial, and that his relationship with her at the time was loving, decent and that he would have no truck with of any kind of activity which involved indecency at all."
For the reasons which we have given the latter part of that proposition is wrong. This was either evidence admissible under D as propensity or it was not, but it was not admissible under F.[32]As to G, however, an attack on another person's character, that gateway it seems to us was clearly passed. The defendant had asserted to the police and he maintained at trial that far from abusing his niece he had had to discourage her when she made inappropriate approaches to him. Accordingly, admission under gateway G was correct. It was however, for the reasons we have already given, important that if admitting the evidence under G the judge should also address D, as he in fact did. Because that would determine how the jury was to be directed. If bad character evidence goes only to explain that the source of an attack on the witness is himself someone with reprehensible behaviour in his background, but that reprehensible behaviour is not relevant to an assertion of propensity, the judge will have to say as much to the jury and be careful in limiting the use which can be made of the material. However, for the reasons given, that did not arise here because this evidence passed gateway D as well as gateway G.[33]In due course the judge directed the jury in line with the basis on which he had admitted the evidence. He left them to consider whether the single photograph demonstrated an unhealthy interest in digital penetration and he left them to consider whether the taking of the photographs of the school friend demonstrated an unhealthy sexual interest in young girls, and lastly he left them to consider whether the evidence amounted to correction of what the defendant said about his relationship with his niece being a perfectly ordinary one.[34]For the reasons which we have explained that was incorrect in some respects. The single photograph did not take the case any further. However, the direction as to the potential relevance of an unhealthy interest in young girls was precisely correct. The reference to correcting a false impression will have meant nothing to the jury beyond the fact that the evidence was potentially relevant to whether the defendant's case was true or not which, for the reasons explained, it was. In the end the judge said nothing additional to the jury about gateway G which, given the potential relevance under D, it was not necessary to do. That omission is of no assistance to the defendant. This was a case in which the evidence against the defendant was very strong. The taking of photographs of another girl of similar age unclothed was highly material. There was an email referring to the defendant loving the complainant too much, which was very powerful evidence. His suggestion that she had attempted to induce him into sexual activity with her in the absence of any hint of encouragement was more than improbable.[35]We have concluded that although the directions given by the judge were in some respects erroneous, the safety of this conviction is not affected, given the plain admissibility of the important evidence of photographing a young girl naked and the advantage which had been gained by the exclusion of the bulk of the photographic evidence. Accordingly in the case of D we grant leave but we dismiss the appeal. P[36]The defendant was charged with offences of sexual abuse of his two stepsons. The elder, M, had been aged about 13 to 16 at the time alleged, which was 1999 to 2002 in broad terms. His younger brother was very much younger and aged only three to six in the same period. A variety of sexual behaviour was alleged involving both boys. It included masturbation and in the case of the elder boy buggery and attempted oral penetration. As part of his account of the history, M recounted that the defendant used to show him pictures of child pornography. When he made his complaint he said that the defendant's computer ought to be looked at. When it was looked at there were some 57 pictures of child pornography. They were of both boys and girls, but they included a boy touching an adult's penis, boys masturbating and boys performing oral sex on each other. In addition, the Internet search history disclosed searches made in terms which included "nude boys" and "pre-teen nudist".[37]The judge was asked by the Crown to admit the evidence on three bases. First, as support for what the elder boy said about having been shown such pictures and then secondly under gateways D and F. Mr O'Higgins on the appellant's behalf says that the elder boy's account of being shown pornography was an after-thought and not closely related to the offences. We have looked at the relevant interview given by the boy to the police and are satisfied that it was clearly part of the history and was admissible to support what the boy said. The showing of pornographic pictures to the elder boy was, we are satisfied, evidence which had to do with the alleged facts of the offence. Accordingly, that evidence was not bad character evidence - see section 98(a). It was not evidence going only to demonstrate, by reference to previous misbehaviour, what was going on in the defendant's head at the time of the current offences, unlike R v Fox [2009] EWCA Crim. 653.[38]Thus it was admissible independently of the bad character provisions to support the boy's evidence of being shown pornography. For the reasons which we have given, the evidence of the internet searches and their product was also admissible through gateway D because it demonstrated a sexual interest in young children.[39]As to gateway F, the Crown had relied upon the fact that when interviewed by the police the defendant had first denied ever watching such images and secondly said that his sexual preference was for females. We do not think that the evidence was admissible on this third basis through gateway F. The denial of watching pornography adds nothing but a circular argument. If watching the pornography did not tend to prove that he had behaved as the boy had alleged, his denial that he had watched it would simply be irrelevant. He had indeed said that he preferred females, but the judge was invited on his behalf to edit that out of the interview in order that it should not be adduced. That would have withdrawn any false impression given in the interview and dissociated the defendant from it and thus brought into operation section 105(3). As to that, the judge said this:
"Even if it were edited out, it does not alter the fact that that is what the defendant said and that was his reaction when these allegations were put to him."
That proposition fell into error because it ignores section 105(3). It also ignores the central proposition to be found in section 105(1)(a) that gateway F arises when a false impression is given to the court. However, since this evidence was clearly admissible through gateway D and since when the judge came to sum it up she summed it up as potentially relevant to whether the defendant had a sexual interest in children and thus treated it as if it had been admitted through gateway D, in the end no unfair damage was done to the defendant's case.[40]The judge had indicated that given her ruling under gateway F and at common law, she did not need to deal with the question of propensity. For the reasons which we have given she did need to deal with propensity, but in the end she summed up on that basis in any event.[41]For those reasons in the case of P we give leave but dismiss the appeal. U[42]The third defendant, U, was charged with a series of rapes and indecent assaults allegedly committed against his two stepdaughters. The period of the complaints differed. The elder girl complained of events when the defendant lived with her mother and also after they separated when she visited him and one or other of his new partners. Her complaints spanned a period from about 1993 to about 1997 when she was roughly between the ages of 8 and 11. The younger complainant had ended up living with the defendant and a new partner. Her complaints spanned a much broader period. They began in about 1992 or 1993 when she was aged about four or five and they were alleged to have continued until about 2003 or 2004, by which time she was 15 or 16. There was a gap at some point at age something somewhere between 8 and 12 or 13, when she was living elsewhere.[43]The complaints surfaced only in 2008. The defendant was then arrested and during a search of his house the police found in the loft a computer hard drive and a substantial number of DVDs. Between them they contained some thousands of still indecent pornographic images of children and some 68 videos of similar material. The children depicted ranged in age from as young as about one to something like 13. In due course the defendant pleaded guilty to ten counts of making indecent images of children.[44]The Crown applied to adduce the child pornography evidence on two bases: gateway D and gateway G. The application under gateway G appears to have been founded upon the suggestion that the defendant had made an attack on the character of the girls by suggesting not only that they had made false complaints, which would not of course by itself be sufficient, but also that they had put their heads together to do so and perhaps that they had done so from financial motive. No more need be said about the application under G, because firstly it is not clear to us how far the grounds for making it existed but, more importantly, secondly, we are satisfied that the judge did not in fact admit this evidence under G but rather under D. That we think is apparent from the terms of his ruling which makes no reference at all to gateway G but does make explicit reference to gateway D. With respect to Mr Dunford's careful submissions for the Crown, we do not think that the fact that the judge added in the middle of his ruling that it seemed to him that the prosecution were right, means that he was acceding to an application about which he said nothing. We do draw attention to the fact that section 110 of the Act does require reasons to be given for the admission of bad character evidence and the debate which has been had in this case as to the exact basis of admission is in part a consequence of the reasons being somewhat exiguous. But that said, on careful analysis we are quite satisfied that what happened was that the judge admitted the evidence under D but not under G.[45]For the reasons which we have already given, we are satisfied that this evidence was admissible and properly admitted under gateway D. It is true that the making of the images found appears to have been in 2008 or thereabouts and that that was some years after the two complainants had ceased to live with the defendant and thus when any offences could have been committed. But a sexual interest in young children is a characteristic which is unlikely to change over years. The jury was entitled to find that this evidence tended to show that the complaints were not false but rather were made against a man who would indeed have had the sexual interest in these two children which they said he had. A similar point was made in this court in relation to the timing of the abuse and pornography in R v A.[46]This is the case in which in the event the jury was given an agreed series of definitions of the Copine levels of pictures. For the reasons which we have earlier explained, although there was nothing wrong with that, especially since it was done by agreement, we would recommend attention being given in other cases to a different way of dealing with the content of pictures.[47]There are two other grounds of appeal unrelated to the admission of the evidence of child pornography. First, Mr Scholz contends that the judge was wrong to leave to the jury count 9. Count 9 was one of a sequence of four specimen counts relating to the younger girl, each charging rape. None related to a specific incident, unlike the first two counts concerning her which had reached back to a time when she was four, five or six. These four rape counts were conventionally drafted, one for each year when the girl was 13, 14, 15 and 16. Count 10, relating to the year when she was 16, was removed from the jury by the judge at the close of the Crown case, as we understand it eventually with the concurrence of the Crown, because the complainant's evidence did not sufficiently support the contention that the conduct of which she complained had persisted into her 17th year (when she was 16). As to the previous year (when she was 15) charged in count 9, Mr Scholz's submission is that the same applied. The judge disagreed. Mr Scholz asks us to say that he was wrong.[48]There is certainly no doubt that this complainant, like others in her position, was extremely hazy about dates. She had originally said when asked in-chief how long the behaviour had gone on that it was until she was about 14 or 15. She was reminded in cross-examination of part of the contents of her police interview. There she had said at one stage that at a particular address occupied by the defendant there had come a time when he had, as she put it, tried it on there, but she had by then stood up to him and successfully prevented intercourse from taking place. In the police interview she had said that the last occasion when he had had intercourse with her had been about a year or perhaps a year and a half before that occasion of resistance.[49]In a case in which there were very few firmly established dates, it was possible to demonstrate that the defendant had moved into the address in question at a time when the girl was just before16. From that Mr Scholz constructed the proposition in the course of cross-examination that a year and a half before that would take the last rape back to a time when she was 14. So it might, although only if she was right in her estimate of time which was extremely uncertain. It would only do so, however, if one counted back from the time when the defendant moved into the house and it is apparent from the girl's interview that she had not been counting back from then, rather from an occasion some time when he lived there. At another point in her interview she had indeed put that occasion as when she was17. In re-examination she confirmed, so far as she was able to, those last propositions.[50]It seems to us that there was evidence there that the behaviour in question had persisted into her 16th year (when she was 15) and we are very conscious that the judge had seen her and not only the words on the page of a transcript but the way in which she expressed herself. The complainant was not the only person who was uncertain about dates. So, it was quite apparent, was the defendant at a number of points. If we ask ourselves whether there was simply no evidence on which a jury could properly conclude that this had gone on until the girl was 15, our answer is that that there was such evidence.[51]Lastly, Mr Scholz invites our attention to the directions given by the judge as to consent in relation to this same younger complainant. The allegations of rape involving her related to a time when she was 13, 14 and 15. There were allegations of rape involving the younger child which were said to have taken place when she was significantly younger, 11 or younger. The judge gave the jury a standard direction as to the meaning of consent at the outset of his summing-up. There is no complaint about that. It made it clear that consent had its ordinary everyday meaning, it made it clear that consent was not the same thing as giving in or submitting, whether out of fear or an absence of the strength to resist. Thirdly, it made it clear that in relation to a child a lack of consent may be established if the jury is satisfied that although the child did not dissent her understanding and lack of knowledge was because, in view of her age, she was incapable of giving consent or of exercising any judgment on the matter. Mr Scholz realistically concedes that the last part of that direction was specifically applicable in this case to the older complainant, J.[52]After the jury had been in retirement for some time. They returned with a note which we have seen. It begins with the short expression giving the initial of the older girl and the word "rape", and then it said in relation to the other younger complainant this:
"The question as to whether consent was given or not - age, query, age of consent. Guidelines of consent under the age of 16 years."
The judge very properly invited counsel to see the note and to make submissions upon it. At that stage Mr Scholz invited him to give the jury some expanded assistance on the meaning of consent and he had in mind, although we understand he had not the case before him then, the kind of direction to which this court referred in the now quite old case of R v Olugboja [1981] 3 All ER 443, particularly at 448. That would have involved reminding the jury that it was not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission induced by force, fear or fraud, that absence of consent went wider than that, that consent was a common word and that it was different from submission.[53]The judge elected to repeat word for word the direction which he had previously given. That did include the proposition that consent was not the same thing as giving in or submitting to sexual intercourse because of fear or because of the lack of physical strength to resist. As Olugboja shows, in fact that was rather narrower than any expanded direction which the judge might have given had he been referred to that case because absence of consent is not limited to cases of fear or lack of physical strength to resist. Consent should be given its ordinary English meaning.[54]The judge gave that direction before inviting the jury to return such verdicts as it had. The jury thereupon immediately returned verdicts in relation to all the rape counts affecting the older girl, whose offences were said to have taken place when she was quite young. With hindsight we think it would have been better if those verdicts had been taken before the supplemental direction was given because then the judge would have seen that it was no longer necessary or helpful to tell the jury about the case of a child who did not understand the meaning of the act and was incapable of giving consent or exercising any judgment on the matter. The younger girl at 13, 14 or 15 would have been in a position to exercise some judgment. Her evidence however, when she had been asked about it, had been that she had not been consenting. She objected to what the defendant (her stepfather) was doing.[55]It seems to us that it might have been preferable if the judge had acceded to Mr Scholz's application to give the jury a little more help than the bare terms of the direction which he had formally given them. However, had he done so, he would have had to remind them first of all that force or fear was not the only instance of absence of consent, but much more he would have had to remind them about what the girl had said, and, as it seems to us importantly, about the fact that the background to these allegations was, if the girl was truthful, that the defendant's abuse of her had begun when she was four, five or six. The nature of the relationship thus established, even if there was subsequently a gap in offending, was absolutely critical to the question of whether she was in a position in later years to give real consent to what went on. There was, we are satisfied, proper evidence that she had not consented in the ordinary sense of the word and there is, as it seems to us, nothing unsafe about the jury's conclusion that that was indeed the position. There was of course argument to be had about whether she was truthful and indeed about whether even if she was truthful about the acts there had been lack of consent, but those were matters for assessment by the jury and we see nothing unsafe in the conclusions at which they arrived.[56]Accordingly, in the case of U, who has been granted leave, we dismiss the appeal against conviction.[57]MR SCHOLZ: May I raise one matter and that is how this case should be reported as I anticipate it will be. You will have noticed when the full court granted leave, the single judge having refused, the case was referred to then as SU.[58]THE VICE PRESIDENT: Yes, why?[59]MR SCHOLZ: It is simply because the complaint related to his stepdaughter and if he is named the stepdaughter's identity would automatically follow.[60]THE VICE PRESIDENT: Would it? In what name was he tried?[61]MR SCHOLZ: He was tried in his own name, but the stepdaughters -- he only has two stepdaughters of that age.[62]THE VICE PRESIDENT: Yes.[63]MR SCHOLZ: And if a person knows his identity--[64]THE VICE PRESIDENT: That is potentially possible in a large number of cases, but they do not live anywhere near him, do they. Is there any reason why anyone should know they are his stepdaughters, apart from close family who are going to know anyway.[65]MR SCHOLZ: Only that the report would make it known they are his stepdaughters. I simply do not know. Of course their mother took the name of U at some stage, but I do not know whether she might have changed it. That is also another aspect. I raise it just simply because--[66]THE VICE PRESIDENT: Do the girls go by that name now?[67]MR SCHOLZ: No, I do not think they do.[68]THE VICE PRESIDENT: I was going to ask the same question of Mr O'Higgins about his case, but thank you for raising it Mr Scholz. What is your case? In what name were you tried?[69]MR O'HIGGINS: He was tried in his full name.[70]THE VICE PRESIDENT: Yes, although in that case there is a shared surname, is that right?[71]MR O'HIGGINS: There is but as an adult. The child complainant is now an adult.[72]THE VICE PRESIDENT: Yes, but the fact that they are an adult does not mean -- they are complainants in sexual offences and they are entitled to anonymity and they must not be identified either directly or indirectly. But generally speaking one does not anonymise every case on the basis that the relationship will or could be followed through sufficiently to identify.[73]MR O'HIGGINS: In this case the defendant's name is P and M took his name. As in Mr Scholz's case, the judgment will make reference to the relationship between the appellant and him.[74]THE VICE PRESIDENT: Yes. Do you want to say anything, Mr Dunford?[75]MR DUNFORD: I do not think there is anything I can usefully add. Obviously the Crown would not wish them to be identified.[76]THE VICE PRESIDENT: They must not be identified and there must be a direction that they are not. The only question is whether on a law report for the use of judges in other cases, supposing it is of use to judges in other cases, it would offend that prohibition.[77]MR DUNFORD: Perhaps out of an abundance of caution my submission would be perhaps it would be preferable to use initials.[78]THE VICE PRESIDENT: I understand that. 79. Out of an abundance of caution we shall say that it must be reported as D, P and U, which is the order in which we dealt with them, and we make it clear to anybody here what is already very well known, that any report of this case, whether in law reports or elsewhere, must not identify the complainants directly or indirectly.

Cited in 18 later judgments

and 9 more of the most senior