DM, R. v [2011] EWCA Crim 2752

[2011] EWCA Crim 2752Case No 201005716 D3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SWINDON CROWN COURT
Mr Recorder Richard Smith QC
T20097202
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/11/2011
Before
LADY JUSTICE RAFFERTY DBEMR JUSTICE MACKAYHIS HONOUR JUDGE LORAINE-SMITH (SITTING AS JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION
Between
D.M.Appellant
Miss A Ezekiel (instructed by Crown Prosecution Service) for CrownKirsty Brimelow QC and Ben Silverstone (instructed by Jeary & Lewis Solicitors) for AppellantHearing Hearing date: 5 TH OCTOBER 2011
Judgment
[1]On 8th September 2010 at the Crown Court at Swindon DM (23) was convicted of 2 counts of making indecent photographs of a child contrary to s.1(1)(a) of the Protection of Children Act 1978 and on 15th October 2010 conditionally discharged for 24 months on both counts, the terms concurrent. His appeal against convictionraises two issues. First, whether the conviction is compatible with his rights under the European Convention on Human Rights and Fundamental Freedoms (“the Convention”). Second, whether the prosecution were properly instituted with valid consent from the Director of Public Prosecutions.[2]LC, born on 19th January 1992 and thus 17 at the time of the alleged offences, was the Appellant’s neighbour. Her evidence, by pre-recorded witness interview, was that the two had done no more than acknowledge each other in the street. On 4th September 2009 at a friend’s house she drank 3 or 4 small vodkas with lemonade then went to a public house where she added 4 single vodkas with lemonade. The Appellant with his father was there. She and the Appellant drank “shots” together, and exchanged telephone numbers. She did not recall, when it was put to her, sharing with him her aspirations to pornography stardom. She denied that she either led him on or flirted with him.[3]As arranged he went to her home later that evening. There they smoked cannabis, LC went to sleep on a sofa and her mother told the jury that LC appeared tipsy and that she observed to the Appellant that LC was “out of it” before herself retiring. Later her mother found the appellant had left and LC was naked asleep on the sofa. She put a blanket over her. LC was unable to recall with certainty what occurred whilst the Appellant was in her home. She said she had heard “like a camera thing or something going off a couple of times, but I just, I didn’t, I couldn’t work out, I didn’t know what was going on, I didn’t think about it, it was just, I could hear it, and then that was it and then I woke up this morning and I had no clothes on and I was just laid on the sofa with a duvet over me…I could just tell my body…I could just tell that something had happened”. She said she did not recall the Appellant waking her up and had no recollection of any sexual intercourse. The following morning, her vagina was painful and her mother told her that someone had taken advantage of her. LC said that she herself knew something had happened before her mother spoke. Her mother called the police.[4]The Crown’s case was that appellant had intercourse with LC whilst she slept, then made a brief video and photographed her while she was undressed. The defence was that he thought her 18 because she had been in a public house drinking alcohol. Intercourse was consensual as was the photography.[5]On 5 September 2009, the Appellant was arrested and interviewed. His account remained consistent throughout. At the public house LC had danced provocatively and the two flirted. They exchanged telephone numbers with the expectation he would go to the house to smoke cannabis. There was a loud reference to her wish to be a pornography star. Later when as arranged he reached her home, she sat on the sofa and her mother commented that she was “out for the count.” Her mother left, he sat on the sofa, woke LC by squeezing her thigh and shaking her a little, she moved her foot into his groin and massaged his testicles. He responded by rubbing her vagina over her trousers. She helped him to remove her trousers and unbuttoned his jeans. He touched and kissed her breasts, touched her vagina, and she did not object when he penetrated her, rather she made sounds of pleasure. They mutually undressed each other and had intercourse.[6]LC had opened her eyes and sexual activity had been consensual. She had tired of his efforts and when he was keen on further congress, affably told him to “fuck off.” He stopped but ejaculated after he had withdrawn. He masturbated himself to ejaculation, semen reaching her arm and cardigan. He then took the photographs of her vagina, breast, and her, naked (including one video) found on his mobile telephone. He later realised the photographs would cause problems with his girlfriend and he would probably have deleted them but next day was arrested. He was stunned. His father gave evidence that in the public house the appellant and LC flirted. Outside the public house she had broadcast that she wanted to be a pornography star.

The Statutory Defence

[7]At the close of evidence the Court heard submissions as to directions. The Appellant argued for the defence raised by s1A(4) Protection of Children Act 1978 (“the 1978 Act”) submitting that since he had adduced evidence of consent he would not be guilty unless it were proved that LC did not consent and that he did not reasonably believe she did. A “one night stand” should be caught by s.1A. Counsel agreed there was no authority for such a bold interpretation. The court found that so to read the provisions would require not merely interpretation but rewriting and it rejected the submission that the Act should be read to include a set of circumstances beyond those specifically provided for in s1(1). As to Articles 8 and 10 European Convention on Human Rights (“ECHR”) counsel had submitted that, absent re-reading, the statute infringed on particularly Article 10, because there was a lack of clarity for defendants unsure of someone’s age. The Court saw no force in that argument because the legislation was clear and exact and case law was against it. The jury would be directed that it had to be satisfied the Appellant deliberately made the photographs and that at the relevant time the subject was, as was agreed, under 18 and that by the relevant standards it found the photographs indecent.

Grounds of Appeal

[8]Grounds of Appealare that the Recorder erred in not interpreting s.1A of the 1978 Act as applicable to a brief sexual relationship or “one night stand”, an interpretation compatible with the applicant’s rights under Articles 8 (private and family life) and 10 (freedom of expression) ECHR, and that there was no evidence of the Director of Public Prosecution’s (“DPP”) consent to prosecute offences pursuant to the Protection of Children Act 1978. The lack of scrutiny was in breach of the applicant’s rights pursuant to Art 6 of the ECHR.

The legal framework

[9]S1 Protection of Children Act 1978 reads where relevant as follows:
“1. Indecent photographs of children (1) Subject to sections 1A and 1B, it is an offence for a person- (a) to take, or permit to be taken or to make, any indecent photograph or pseudo photograph of a child; or (b) to distribute or show such indecent photographs or pseudo-photographs; or (c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself to others; or (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so. (2) For the purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photographs if he parts with possession of it to, or exposes or offers it for acquisition by, another person. (3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions. (4) Where a person is charged with an offence under section 1(b) or (c), it shall be a defence for him to prove- (a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or (b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect them to be indecent (5) … S1A reads where relevant as follows: Marriage and other relationships (1) This section applies where, in proceedings for an offence under section 1(1)(a)………the defendant proves that the photograph….was of the child aged 16 or over, and that at the time of the offence charged the child and he – (a) were married or civil partners…., or (b) lived together as partners in an enduring family relationship. …… (4) If ….under section 1(1)(a)… sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph…being taken…, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty…. unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.” (1) Subject to sections 1A and 1B, it is an offence for a person- (a) to take, or permit to be taken or to make, any indecent photograph or pseudo photograph of a child; or (b) to distribute or show such indecent photographs or pseudo-photographs; or (c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself to others; or (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so. (2) For the purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photographs if he parts with possession of it to, or exposes or offers it for acquisition by, another person. (3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions. (4) Where a person is charged with an offence under section 1(b) or (c), it shall be a defence for him to prove- (a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or (b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect them to be indecent (5) … S1A reads where relevant as follows: Marriage and other relationships (1) This section applies where, in proceedings for an offence under section 1(1)(a)………the defendant proves that the photograph….was of the child aged 16 or over, and that at the time of the offence charged the child and he – (a) were married or civil partners…., or (b) lived together as partners in an enduring family relationship. …… (4) If ….under section 1(1)(a)… sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph…being taken…, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty…. unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.”
[10]Prior to 1 May 2004, a child was a person under 16. For the purposes of the Act, a child is a now a person under 18 (s7(6)), an amendment made by s45(2) Sexual Offences Act 2003 (“the 2003 Act”).

Articles 8 and 10

[11]The relevant provisions of Article 8(1) ECHR are:
“Everyone has the right to respect for his private and family life...” qualified by 8(2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society …….for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The relevant provisions of Article10(1) are:
“Everyone has the right to freedom of expression….”qualified by 10(2) “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society………….for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others……”

The primary Ground, breach of the Appellant’s Article 8 and 10 rights

[12]The submission advanced is that whereas sexual relations between Appellant and complainant may have been consensual and thus lawful, the jury was precluded from considering whether the photographs were consensually taken. There was no evidence of intended distribution, indeed the Appellant would probably have deleted them. The statutory defence under s.1A Protection of Children Act 1978 applies to 16 and 17 year olds married or “living together as partners in an enduring family relationship” a limitation arbitrary, unjustified and not proportionate. An unmarried and non-cohabiting 16 or 17 year old has the capacity in law to consent to intercourse but not to the taking of photographs during intercourse, whereas a married or cohabiting counterpart has both. The taking of a consensually given image, following lawful consensual sexual relations cannot require the imposition of criminal liability so as to protect children from sexual exploitation, particularly in the light of the safeguards provided in ss 1(1)(b), (c) and (d), where no defence of consent need arise. The argument that such a photograph must be subject to criminal liability so as to prevent future pornographic use is speculative; Articles 8 and 10 are engaged: R. v Smethurst [2002] 1 Cr. App. R. (6); interference with the Appellant’s rights is not necessary in a democratic society for any of the legitimate aims listed in Article 8(2) or 10(2); the legislation makes no allowance for the private lives of 16/17 year olds sexually active whilst living with their parents; and the Appellant’s Article 8(2) and 10(2) rights are violated as a consequence of prosecution: A.D.T. v UK [2001] 31 E.H.R.R. 33.

Development of submissions by the Appellant

[13]The Appellant accepts that the protection of children from sexual exploitation is necessary and a “pressing social need” as defined in Smethurst where compatibility of s1 of the Act with Articles 8 and 10 was considered and no contravention found. Confronted with that profound difficulty the Appellant points out that when Smethurst was decided the definition of a child was “a person under 16” whereas LC was three months shy of 18. For the Appellant Miss Kirsty Brimelow QC reminds us that it is no offence to have sexual intercourse with a person aged 16 who is reasonably believed to have consented, nor to take an indecent photograph of such a person who is reasonably believed to have consented, provided s/he was married to, or was a civil partner of, the defendant, or the two were “living together as partners in an enduring family relationship”. Even within a statutorily defined position of trust, so the argument proceeds, a special defence applies under s24 of the 2003 Act, if, immediately before the position of trust arose, a lawful sexual relationship existed between defendant and complainant. Although the context differs from the present, where there was no more than a “one night stand” and Miss Brimelow QC did not attempt to clothe it in the garment of a relationship, the s24 defence she submits is closely analogous to that for which she contends.[14]She took us to the three-stage test for proportionality set out in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Landsand Housing [1999] 1 AC 69 and R (on the application of Daly) v Secretary ofState for the Home Department [2001] UKHL 26: the legislative objective must be sufficiently important to justify limiting a fundamental right, the measures designed to meet the objective rationally connected to it, and the means used to impair the right or freedom no more than necessary to accomplish the objective.[15]Lord Bingham in Huang v Secretary of State for the Home Department [2007] UKHL 11 said that De Freitas may have omitted one important feature:
“…the need to balance the interests of society with those of individuals and groups…”
[16]The Appellant argues that here neither the second nor third De Freitas test is met. Further, he submits that the Recorder’s interpretation of s1A fails to strike a fair balance between the rights of the individual and the interests of the community. For example, offences of child pornography and prostitution enjoy a potential defence of reasonable belief that the complainant was over 18. This does not apply under section 1(1)(a), nor is a defence of consent available.[17]Miss Brimelow suggests it is irrational that a child as statutorily defined should be capable of consenting to sexual relations but incompetent to consent to the photographing of an equivalent act unless in a marriage, civil partnership or an enduring family relationship. So to predicate consent, and to provide for an irrebuttable presumption in all other cases, does not accord with modern understanding of how the law treats sexual relations.[18]S45 of the 2003 Act inserted s1A into the 1978 Act, providing a defence to the abuse of position offences where immediately before the position of trust arose, a sexual relationship existed between A and B. S45(3) makes clear that s1A(1) was intended to counterbalance the tightening of the legislation represented by s45(2), in which “child” was redefined to “below the age of 18”. By carving out a defence of consent, Parliament must, so the argument goes, have recognised the potentially draconian consequences of such a raising of the age, the defence intended to except from liability those who could rely on a real issue of consent.

The Respondent

[19]For the Respondent Crown Miss Ezekiel began her submissions by reference to the summing-up. The judge directed the jury that, in respect of the indecent photographs offences, the Crown had to prove three things: i) That the Appellant deliberately and intentionally took the photographs. ii) That at the time the photograph was taken, LC was under 18. iii) That the photograph under consideration was indecent.[20]He said:
“The defendant’s motives and intentions as to taking the photograph and its subsequent use or non-use are irrelevant as to …….whether it is ……. indecent. That question, is it indecent,…, has to be judged solely by the standards to which I have referred. Equally, whether or not the defendant thought the complainant may have consented to the photographs having been taken, it being his evidence that in respect of the three photographs she still was asleep at the time, is irrelevant. The questions are, as I remind you, put shortly, was it deliberately and intentionally taken of someone under 18 and its content indecent.”
The Crown argues that this both encapsulates the correct approach and throws into relief quite how bold a submission is that advanced by Miss Brimelow.[21]In Graham-Kerr [1988] 1 WLR 1098, the Court of Appeal considered whether the circumstances in which an alleged indecent photograph was taken and the motivation for taking it were relevant to an offence under section 1(1)(a) of the 1978 Act. (At that time a ‘child’ was under 16.) The Court held that the only matters for the jury were: Did the defendant take the photograph deliberately and intentionally?If yes, was it indecent? It went on to say “A photograph is a permanent matter. The question…. is whether the photograph itself is indecent. Photographs… may last a large number of years, pass from hand to hand… 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…, cannot be …relevant..[22]In R v Price [2006] EWCA Crim 3363 the Court of Appeal held that distribution or showing of indecent photographs of a child contrary to s 1(1)(b) of the 1978 Act is an offence of strict liability subject only to the statutory defences, an approach “…plainly justified by public policy considerations. There are good reasons to discourage the careless transmission and distribution of this kind of pornographic material.”[23]The amendments made by the 2003 Act to the 1978 Act and the Criminal Justice Act 1988 are consistent with the approach in the 2003 Act (where a ‘child’ is under 18) to offences involving sexual exploitation of children as follows: “Abuse of position of trust(i) S16 – sexual activity with a child.(ii) S17 – causing or inciting a child to engage in sexual activity(iii) S18 – Sexual activity in the presence of a child(iv) S19 – Causing a child to watch a sexual act Familial child sex offences(v) S25 – Sexual activity with a child family member(vi) S26 – Inciting a child family member to engage in sexual activity Abuse of children through prostitution and pornography(vii) S47 – Paying for sexual services of a child(viii) S48 – Causing or inciting child prostitution or pornography (x) S49 –Controlling a child prostitute or a child involved in pornography (xi) S50 – Arranging or facilitating child prostitution or pornography Each is committed if the child is under 13 or if the child is under 18 and the defendant does not reasonably believe that the child is 18. (i) S16 – sexual activity with a child. (ii) S17 – causing or inciting a child to engage in sexual activity Familial child sex offences (vi) S26 – Inciting a child family member to engage in sexual activity (viii) S48 – Causing or inciting child prostitution or pornography (x) S49 –Controlling a child prostitute or a child involved in pornography (xi) S50 – Arranging or facilitating child prostitution or pornography

Familial child sex offences

[24]The Crown, contending that the proportionality tests are met, relies on Smethurst, R v G [2008] UKHL 37, various other offences provided for under the Sexual Offences Act 2003 (“the 2003 Act”) and two international instruments, the United Nations Convention of the Rights of the Child (“UNCRC”) and the EU Framework Decision 2004/68/JHA (“the Framework Decision”). The conclusion in Smethurst that “the requirement to protect children justifies the terms of the offence as understood by this Court in Graham-Kerr” was reached without consideration of qualifying age discrepancies (16 as opposed to 18) since none then existed. There was no consideration of the circumstances under which the taking of a consensual photograph of a person who had attained the age of consent in respect of sexual acts could give rise to criminal liability in the light of Arts 8 and 10. On the Appellant’s analysis, provided the defendant did not have an indecent purpose, consent would be irrelevant: and no liability would accrue. By contrast, consent is central to this appeal. Smethurst concerned photographs of a complete stranger, whereas the Appellant argues that LC agreed to the taking of photographs, or that he reasonably believed she had agreed. Further, this appeal fastens on s1A, which provides a defence of consent in respect of 16 and 17 year-olds. Since such did not exist at the time of Smethurst, this aspect of the Appellant’s submissions is unanswered by the court’s reasoning.

Discussion and conclusion

[25]The UNCRC in Article 1 defines a ‘child’ as ‘below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. It obliges (Art 34) State Parties to take appropriate measures to prevent exploitative use of children in pornographic performances and materials. Art 1(a) of the Framework Decision on combating the sexual exploitation of children and child pornography, binding on the UK, defines a child as below the age of 18. Article 3 provides that each Member State shall take the necessary measures to ensure that conduct including the intentional production of child pornography is punishable. Article 3.2(b) provides that a Member State may exclude from criminal liability conduct relating to child pornography where, in the case of the production and possession, images of children having reached the age of sexual consent are produced and possessed with their consent and solely for their private use. However, even where consent has been established, it is not considered valid, if for example superior age, maturity, position, status, experience or the victim’s dependency on the perpetrator has been abused in achieving it. The age of consent in Member States varies from 13 to 18 years.[26]A new draft Directive to repeal and replace the Framework Decision awaits a vote in the European Parliament. It aims to establish minimum rules concerning the definition of criminal offences and sanctions in the area of sexual abuse, exploitation, and solicitation of children for sexual purposes and of child pornography, and to strengthen the prevention of crime and protection of victims. Article 5(2) concerns acquisition, Article 5(6) production of child pornography. Article 8(3) provides that it ‘shall be within the discretion of Member States to decide whether Articles 5(2) and (6) applies [sic] to the production, acquisition or possession of material involving children having reached the age of sexual consent where this material is produced and possessed with their consent and solely for private use for the persons involved, insofar as the acts did not involve any abuse.[27]In Smethurst, at a time when a child was defined as under 16, the Court considered whether s1 of the 1978 Act were compatible with the Convention, in particular Articles 8 and 10, and considered Graham-Kerr, decided prior to the Human Rights Act 1998. At paragraph 22, the Court observed:
“…the difficulty is that the [1978] Act is designed to protect children from being exploited. Unless there is a prohibition against the taking of indecent photographs, there is no way in which the children can be protected from being exploited. The balance has been drawn by Parliament in the way indicated by s1 of the Protection of Children Act 1978.”
[28]In Smethurst, the appellant argued that, in light of the HRA 1998, the offence in s 1(1)(a) of the 1978 Act should be read as imposing an additional ingredient that the photographs were intended for an indecent purpose. The Court identified his difficulty as “…once the photographs come into existence, the harm may be done.The person in possession may circulate them. If they are then used for indecent purposes, that person can then say, ‘well, it’s the person to whom I supplied the photographs who has used them for indecent purposes, not me, and therefore I am not guilty of an offence’. Parliament did not consider that an offence which would allow a person to produce deliberately taken photographs which were indecent without committing an offence provided sufficient protection for children.”[29]It concluded that s1 was not in breach of Articles 8 and 10 and a reconsideration of its interpretation unnecessary since “…the requirement to protect children justifies the terms of the offence as understood…in Graham-Kerr. It is there for the prevention of crime, for the protection of morals, and in particular for the protection of children from being exploited, which is undoubtedly a matter which is necessary in a democratic society.”[30]In R v G [2009] 1 AC 92, the House of Lords considered whether the prosecution were in breach of Art 8, the majority concluding that Article 8 confers a qualified right, any interference must be necessary and proportionate for one of the purposes mentioned in Article 8(2), that prosecutorial policy and sentencing do not fall under Article 8, and that it was not engaged by the continuation of the prosecution. G had admitted sexual intercourse with a 12 year-old girl but claimed it was consensual. She denied she had consented but was terrified of attending court so his basis of plea prevailed. G did not relate to consent, since a 12 year-old is incapable of consenting. By contrast, the present case involves a 17 year-old girl, a 22 year-old man and consensual sexual intercourse,[31]Following an appeal to the European Court of Human Rights (G v UnitedKingdom (Application no. 37334/08)) the court decided that G’s application was inadmissible The applicant complained inter alia that the criminal proceedings amounted to a disproportionate interference with his rights under Article 8. The court held that the measures were intended to protect young and vulnerable children from premature sexual activity, exploitation and abuse and the interference with the applicant’s private life pursued the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. When determining whether an interference were ‘necessary in a democratic society’, the court will take into account a margin of appreciation left to the national authorities. Its scope varies according to context. In G it had to be wide as there was a need to protect the complainant and other children in her position against premature sexual activity, exploitation and abuse. The authorities did not exceed the margin of appreciation by deciding to prosecute, particularly since the legislation permitted a broad range of sentences and mitigating circumstances were taken into account.

Compatibility

[32]S3(1) HRA imposes an obligation so far as possible to read and give effect to primary and to subordinate legislation compatibly with Convention rights. The approach to be taken was considered by Lord Bingham in Sheldrake v DPP [2005] 1 AC 264 at paragraph 30 as follows: i) The interpretive obligation under section 3 is a very strong and far-reaching one and may require the court to depart from the legislative intention of Parliament. ii) AConvention-compliant interpretation under section 3 is the primary remedial measure and a declaration of incompatibility under section 4 an exceptional course. iii) The need for a declaration of incompatibility would rarely arise. iv) There is a limit beyond which a Convention-compliant interpretation is not possible.[33]S3 cannot be used to go against the grain of the legislation (Ghaidan v Godin-Mendoza [2004] 2 AC 557).[34]In Regina (F (A Child)) v Secretary of State for the Home Department [2011] 1 AC 331, Lord Phillips considering proportionality identified questions the court should ask referring to de Freitas. These were whether: i) The legislative objective is sufficiently important to justify limiting a fundamental right. ii) The measures designed to meet the legislative objective are rationally connected to it. iii) The means used to impair the right or freedom are no more than is necessary to accomplish the objective.[35]The Respondent thus submits that the principles to be derived from legislation, case law and other materials are: i) The offences created under s1 of the 1978 Act are of strict liability, motivation for and circumstances surrounding the making or taking of a photograph irrelevant. ii) An offence under s1 of the 1978 Act is committed where the child is under 18 and thus includes those capable of consenting to sexual activity. iii) Section 1A provides a defence to an offence under section 1(1)(a) of the 1978 Act in limited circumstances which do not apply to the Appellant. iv) The Court has previously held that the offences set out in s1 of the 1978 Act are not incompatible with Arts 8 and 10 of the Convention (Smethurst). v) Whether, since the amendment to the 1978 Act, the offence when applied in relation to indecent photographs of a child aged 16 or 17 is a breach of Articles 8 and 10 of the Convention and any consequent question of incompatibility is addressed by the Regina (F (A Child)) questions.(a) What is the extent of the interference with the Convention rights?(b) How valuable is the inclusion of indecent photographs of a child aged 16 or 17 or the restriction of the defence in section 1A in achieving the legitimate aims?(c) To what extent would that value be eroded were a child aged 16 or 17 excluded from the 1978 Act or the ambit of the defence widened? vi) So far as possible, the 1978 Act must be read and given effect to compatibly with Convention rights. If this is not possible, the Court may make a declaration of incompatibility, which does not affect the validity, continuing operation or enforcement of the provisions of the 1978 Act and consequently would not affect the Appellant’s conviction.

Conclusion on the primary Ground of Appeal

[36]As this review of legislative provision and of jurisprudence makes clear, we cannot accede to what Miss Brimelow acknowledged was a bold submission. The Appellant had no right to take indecent photographs of a child under the age of 18. The 1978 Act did not impede him from engaging in sexual intercourse with a person who, like LC, is aged 17. He was not permitted and had no right to make such a person the subject of pornography. Even if the defence in section 1A of the 1978 Act were available, since it was the Appellant’s case that LC was asleep at the time the photographs were taken, the question of consent did not arise.[37]The provisions of the 1978 Act are no more than is necessary to accomplish the objective. As our review makes plain the 1978 Act is drafted and interpreted so as to provide an effective protection of children whilst balancing rights under Article 8 of the Convention. Without the prohibition on the taking of indecent photographs there can be no effective protection, and Parliament has identified circumstances in which the taking of such a photograph should not be criminalised. Without the limit to the exception, there cannot be the same degree of certainty about the genuine nature of the commitment in a relationship which can easily be terminated and may be very short-term. A defence which includes a ‘brief sexual relationship’ would diminish the protection provided and would risk the re-introduction of issues as to the circumstances in which the photograph was taken and the motivation for taking or making it.[38]The measures with which the court has been concerned are necessary for the prevention of crime, protection of morals and in particular for the protection of children from being exploited: Smethurst. The legislation does not criminalise consensual sexual activity between the Appellant and a child aged 16 or 17, rather the 1978 Act strikes the balance between keeping interference by the State in the private lives of individuals to the minimum and maintaining under the law maximum protection for children from sexual abuse and exploitation.[39]There is nothing in this Ground.

The secondary Ground of Appeal: Consent to Prosecution

[40]In accordance with s1(3) of the 1978 Act, consent is required for the institution of proceedings under that Act. The Appellant was charged on 17 November 2009. On 3 March 2010 as permitted by s1(7) Prosecution of Offences Act 1985 a Crown Prosecutor gave it. The Appellant submits that the timing demonstrates that no proper consideration was given to whether it were appropriate to prosecute him for offences under the 1978 Act, thus demonstrating that the consent requirement does not provide an effective safeguard against inappropriate prosecutions and his Conventions rights were not scrutinised, a belated involvement and insufficient safeguard. That “the proceedings can only be instituted by or with the consent of the Director of Prosecutions” (Smethurst) is said by Miss Brimelow to be no more than a rubber stamp to a charging decision made in the same way as for any other alleged offence Whilst the image evidence was admissible as to the rape, once acquitted of rape, she argues that inevitably on a finding that LC may have consented to the sex, convictions in relation to the taking of a photograph and video clip were disproportionate to his rights to sexual interaction in private.[41]The Respondent’s submission is that notwithstanding the acquittal on the allegation of rape, the victim had complained and was to maintain throughout that advantage had been taken of her and she had been raped in her home. The photographs were discovered when the Appellant’s phone was as a consequence examined. There is no proper basis for the suggestion that a prosecution in relation to the photographs and the rape was inappropriate. The Full Code test was applied by a Crown prosecutor on 17November 2009 (Richard Thomas). He undertook the proper scrutiny before deciding to prosecute. He considered the evidential and public interest aspects. As a matter of good practice, consent ought to have been given on 17November 2009. Mr Thomas’s marking as “not relevant” the issue of DPP’s consent was incorrect but rectified when consent was obtained on 3 March 2010 by Crown prosecutor Rachael Marshall in advance of the first hearing of substance, the Plea Case Management Hearing. There was no earlier occasion on which the appellant was asked to answer the charge.[42]This Ground has caused us no anxiety. The Respondent’s submissions are well founded. The decision to prosecute was justified in the circumstances of the case in which LC complained that advantage had been taken of her and she had been raped. There is no conceivable basis for the contention that the prosecution should have been discontinued once the Appellant had been acquitted of rape, the only remedy for which Miss Brimelow could begin to argue. She with commendable candour conceded that were she not to succeed on her primary Ground she could not succeed on this, her secondary. We agree.[43]There is nothing in either of these Grounds and the appeal against conviction is dismissed.

Cited in 1 later judgment