Neutral Citation Number: [2004] EWCA (Crim) 669

Case No: 2004 00140 A4
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BASILDON
HH JUDGE LOCKHART

Royal Courts of Justice
Strand, London, WC2A 2LL

Date:  26 March 2004
Before :

LORD JUSTICE THOMAS
MR JUSTICE HOLLAND
HIS HONOUR JUDGE MICHAEL BAKER QC
(Sitting as an Additional Judge of the Court of Appeal) 
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Between :

	RICHARD THOMPSON	Appellant	
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	THE  QUEEN	Respondent	

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Mr N Casey for the Appellant

Hearing dates : 16,17 March 2004
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 JUDGMENT 
LORD JUSTICE THOMAS: 
1.	On 31 October 2003 the appellant pleaded guilty to 12 counts of possession of indecent photographs or pseudo photographs of children contrary to s. 160(1) and (2A) of the Criminal Justice Act 1988; 11 of those counts related to specific images while the last count related to 3,735 other images in the defendant’s possession.  On the 28 November 2003 he was sentenced by HH Judge Lockhart at Basildon Crown Court to 2 years imprisonment on each count, such sentences being concurrent with each other.  He appeals against that sentence with leave of the Single Judge.
2.	The facts can be briefly summarised. The appellant was a man of 52 years of age. He ran his own business of fitting windscreens to buses. He was married with 3 children.  One of those was aged 11, but the others were adults. 
3.	On 26th March 2003 a search warrant was executed at the appellant’s home address. His computer was seized. When it was examined, it was found to have contained over 3,700 indecent images of children which had been downloaded from commercial sites on the internet, but subsequently deleted.  When being interviewed he initially denied knowledge of the images but at a second interview in July 2003 admitted possession of the images.  He said he had downloaded them from the internet, but then deleted them.  
4.	As a consequence of his arrest and the discovery of the indecent photographs, he has been rejected by his family. He was of previous good character.  There were two reports before the court which sentenced him; one of those was from a social worker who had been conducting individual sessions which he had attended.  There was before us, in addition, a report from the prison at which the appellant was serving his sentence.  This was a positive report which showed he had been making good use of his time in prison.
5.	In sentencing the appellant the learned Judge referred to the photographs which he had seen which related to the 11 specific counts.  He described them as showing:
“in very unpleasant focus and close up, young girls engaging in sexual activity – intercourse – with other people (some adult, certainly).  It is gross behaviour to be adopted towards any young child.  In this case, two of the children were aged between five and six.  It really does not bear thinking about as to what those little girls are going to make of their lives in later years, because each of them is a victim.  Whether they will ever be able to recover from this is something that none of us will know”.
6.	He then referred to the fact that not only was he dealing with those specific images, but
“with another 3,735 cases – some of which (and I do not know how many) being category 4, in other words towards the more serious end of the scale of offending of this sort.”
7.	In his reference to category 4, the learned Judge was referring to the guideline case of R v Oliver [2002] EWCA Crim 2766, 2003 2 Cr.App.R.(S.) 15 where at paragraph 10, Rose LJ giving the judgment of the Court categorised the levels of pornographic images of children as:
“ (1)	images depicting erotic posing with no sexual activity;
(2)	sexual activity between children, or solo masturbation by a child;
(3)	non-penetrative sexual activity between adults and children;
(4)	penetrative sexual activity between children and adults;
(5)	sadism or bestiality.”
8.	The Court made clear that among the factors to be taken into account in sentencing in such cases were whether the images were photographs or pseudo-photographs and  the quantity of images at the different levels that the defendant had in his possession:
“15. Possession, including down-loading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children.  But there may be exceptional cases in which the possession of a pseudo-photograph is as serious as the possession of a photograph of a real child: for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph.  It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect.  It will usually be desirable that a charge or count in an indictment specifies whether photographs or pseudo-photographs are involved.
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“17.  In relation to more serious offences, a custodial sentence between 12 months and three years will generally be appropriate for (a) possessing a large quantity of material at levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at level 3; or (c) producing or trading in material at levels 1 to 3”…..
9.	In this particular case:
i)	The indictment did not identify whether the photographs in question were real photographs or pseudo-photographs, but it was accepted on the appellant’s behalf that the images were real photographs.
ii)	Save for one count, the indictment did not identify by its “jpg” or similar reference which count in the indictment related to which image; again counsel was able to agree which the images were when we viewed them.
iii)	In respect of the count in the indictment which covered possession of 3,735 other photographs, there was no information whether by way or schedule, admission or otherwise, as to the number of photographs which fell into each of the levels identified by this Court in Oliver. 
iv)	Although the charge sheet which was provided to us to enable us to identify the photographs when we viewed them gave an indication of the age of the children in question by reference to “under 5” in one case and “under 10” or “under 12” or “under 16” in other cases, there was nothing before the Judge which contained any agreement on the age of the child. Again it was accepted on behalf of the appellant that the Judge had correctly identified the age of the children in two of the images as referred to in paragraph 5 above.
10.	Although three of the issues to which we have referred were resolved by counsel’s acceptance on behalf of the appellant of the position described,  the position was different on the important issue as to the  breakdown of the 3,735 images into the quantities at the different levels. Enquiries made on our behalf confirmed that the prosecution had not provided any schedule listing the 3,735 images and no question was raised by the Judge as to the deficiency in the information provided in respect of these images; it seems to us that the Judge allowed himself to be placed in a very difficult position in this case by not requiring to be told of the approximate number of images at each level contained in the count relating to the 3,735 images, so that he could properly proceed to sentence in accordance with the guidelines set out in Oliver.
11.	In the light of the experience of some of the members of this constitution of the court and questions we raised with counsel, it appears that the situation that arose in this case is not uncommon. We would therefore suggest that in each case of this kind the following practices should be adopted in the drafting of indictments.  The same practices might also be adopted in the selection of images for presentation in summary proceedings:
i)	In cases where there are significant numbers of photographs, in addition to the specific counts, the inclusion of a comprehensive count covering the remainder is a practice that should be followed. 
ii)	The photographs used in the specific counts should, if it is practicable, be selected so as to be broadly representative of the images in the comprehensive count.  If agreement can then be reached between the parties that (say) 5 images at level 2, 10 at level 3, and 2 at level 4 represent 500 level 2, 100 level 3 and 200 level 4 images in the comprehensive count of 800 images, the need for the judge to view the entirety of the offending material may be avoided. 
iii)	Where it is impractical to present the court with specific counts that are agreed to be representative of the comprehensive count there must be available to the court an approximate breakdown of the number of images at each of the levels.  This may best be achieved by the prosecution providing the defence with a schedule setting out the information and ensuring that the defence have an opportunity, well in advance of the sentencing hearing, of viewing the images and checking the accuracy of the schedule. 
iv)	Each of the specific counts should in accordance with what was stated by this court in Oliver make it clear whether the image in question is a real image or a pseudo-image; the same count should not charge both.  As this Court pointed out in Oliver, there may be a significant difference between the two and where there is a dispute, then there should be alternative counts.  In the majority of cases there will be no doubt as to whether the image in question should be dealt with either as a real image or a pseudo-image.
v)	Each image charged in a specific count should be identified by reference to its “jpg” or other reference so that it is clear with which image the specific count is dealing.
vi)	The estimated age range of the child shown in each of the images should where possible be provided to the Court.
12.	We make these observations because, in our view, the Judge was placed in a position as regards this appellant where he had no information (apart from the 11 images set out in the counts dealing with specific images) as to the approximate quantity of  the images at the different levels.  There was no basis on which he could find on the information before him that there were any at level 4. Counsel for the appellant has taken the point that as the prosecution failed to identify the levels of the 3,735 other images and no request was made by the Judge prior to sentence for those to be identified, it would not be right to make an assumption against his client as to the number of images at the different levels which were encompassed within the 3,735 other images.  
13.	It is because we see the force of that submission that we have set out the good practice in paragraph 11 above which we consider should have been followed in this case.
14.	Taking into account the unfortunate lack of information before the court, the fact that all the images were deleted from the computer by the appellant, that he was not in any way involved in distribution and that the images were used for his own personal purposes and the personal mitigation to which we have referred, we consider that the sentence passed by the learned trial Judge was too long.  On the information before him, the Judge could not properly conclude that the appellant was in possession of a large quantity of material at level 4.  In the circumstances, we consider that the appropriate sentence for this offence should have been 9 months imprisonment.  We accordingly quash the sentence of imprisonment of 2 years and substitute one of 9 months.
15.	There is one other matter.  The Judge also stated in his sentencing remarks:
“I make a Restraining Order in the terms as represented to me and I order that on release from prison you will register under the Sex Offenders Act …”.
16.	We enquired into the Restraining Order that is said to have been made by the learned Judge.  No copy of the order was recorded on the court computer system and none could be found on the file.  Enquiries were made of the court and of the Crown Prosecution Service (as counsel who had appeared for the prosecution at trial was overseas).  None could recall to what the Judge was referring.  This is another unfortunate aspect of the case.  It is accepted on behalf of counsel for the appellant that an order should have been made disqualifying the appellant from working with children, having regard to the sentence he passed and to S.28 Criminal Justice and Court Services Act 2000.  It may be that the judge was referring to this but no such order was made.  We do not ourselves make such an order because the sentence of 9 months which we substitute for the sentence at trial is not a qualifying sentence for such an order.