O'CARROLL v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr Thomas Victor O'Carroll, is a United Kingdom national, who was born in 1945 and lives in Shildon. The applicant was convicted at the Southwark Crown Court on 17 July 2002 of three counts of being knowingly concerned in evading the prohibition on the importation of indecent material contrary to Section 170(2)(b) of the Customs and Excise Management Act 1979. Each count related to a photograph in an album which had been part of a consignment from Qatar addressed to the applicant in the United Kingdom. The applicant had signed a form declaring that he was not bringing in prohibited material in that way. Each photograph was of a young naked child, engaging in normal outdoor activity such as playing on a beach. The questions put to the jury in respect of each count were: “Considering each count separately, has the prosecution made you sure that: 1. On 5 October 2001 the defendant knowingly brought into this country the photograph of the child that is the subject of the count? 2. The child is under 14 years of age? 3. The photograph is indecent? [A photograph is indecent if in your judgment in offends against recognised standards of propriety] 4. The defendant deliberately failed to disclose his possession of the photograph because he believed that it was or might be indecent? If the answers to all four questions are YES, the defendant is GUILTY. If the answer to any of the above questions is NO, the defendant is NOT GUILTY.” The applicant was sentenced to nine months' imprisonment on 9 August 2002. On 11 October 2002 a single judge granted leave to appeal against sentence as it was arguable that the sentence was too long. Leave to appeal against conviction was refused, the judge considering that the trial judge's direction to the jury had been entirely satisfactory, and that the offence was sufficiently precisely defined so as to comply with the Article 7 of the Convention. In this latter respect he referred to Müller and Others v. Switzerland (judgment of 24 May 1988, Series A no. 133) and the domestic decision of R. v. Perrin ([2002] EWCA Crim 747). The applicant's appeal against sentence was allowed by the Court of Appeal on 26 November 2002. No alternative sentence was passed, although the applicant was still required to register as a sex offender under the Sex Offences Act 1997. A renewed application for leave to appeal against conviction was dismissed by the Court of Appeal on 29 July 2003. The Court of Appeal noted that: “whereas counsel's advice and grounds of appeal are set out in fourteen paragraphs over five pages, those arguments put forward by the applicant himself extend to 94 paragraphs over 27 pages. He is a dedicated enthusiastic and well-researched apologist for what he sees as innocent and non-exploitative pleasure in viewing photographs of juvenile nakedness. He raises many philosophical, social and artistic arguments about that which we regard as irrelevant to the two legal questions for us: (1) Was the conduct of the trial and the summing up correct? (2) Are the convictions safe?” The Court of Appeal dealt with the various grounds of appeal as follows: - The Court of Appeal did not accept that the concept of “indecent” material was too vague to allow a citizen to conduct himself in knowledge of what the law was. It recalled that the test of whether an article was indecent was an objective one, and that the quality of indecency was to be determined by looking at the article alleged to be indecent, and nothing else. To require absolute certainty in advance as to whether an article was or was not indecent would set an impossible task which could only be met in the rare case in which a second set of proceedings was brought in respect of specific material already found to have been indecent. - As to the ground of appeal that the judge was alleged to have dealt wrongly with the “context” of the photographs in that he had suggested that that was relevant to whether the photographs were indecent, and that he misdirected the jury that visibility of genitalia was a relevant consideration in determining whether the material was indecent, the Court of Appeal referred to the questions which the judge had put to the jury, in which he had stated that a photograph was indecent if it offended “against recognized standards of propriety”. As to context, the trial judge had said: “... here what you should do is to ignore context. Forget about context. Just look at the photographs of these young children, ignoring any context, and ask yourselves the question: Are they decent or indecent? The real question is ...: Are we sure they are indecent?” The Court of Appeal added that the extent of the display of genitalia was a factor which one could expect to be considered by the jury, and the judge's reference to it was not surprising. - As to the ground of appeal that in using the four questions put to the jury, the judge had reduced the statutory requirement of “knowingly” being concerned in importation to a belief that the photograph was or may have been indecent, the Court of Appeal considered that the statutory requirement of “knowledge” was met by the fourth question. - As to the ground of appeal that the applicant had been denied the right to silence because the judge had instructed the jury that they could draw adverse inferences from the fact that applicant had not given evidence, the Court of Appeal noted that the judge's direction under Section 35 of the Criminal Justice and Public Order Act 1994 had been absolutely orthodox. The defence had asked the judge to rule in advance that if the applicant gave evidence he could not be cross-examined about a number of matters, in particular matters which would reveal his general attitude to the “philosophical, social and artistic arguments” referred to above, and which could colour the jury's determination of the fourth question. To this, the Court of Appeal replied that the judge was wise to refuse to make any such ruling, as if he had done so, he would have given carte blanche to the defence “to give the sort of proselytising combative assertions which we find in the grounds of appeal through the defendant's evidence” According to Section 170(2) of the Customs and Excise Management Act: "Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion – ... (b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; ... he shall be guilty of an offence under this section and may be arrested." As the House of Lords found in the case of R. v Forbes ([2001] UKHL 40): “This provision extends to all cases involving the evasion or attempted evasion of a prohibition or restriction. It requires proof by the prosecutor of two things. First he must prove that the goods in question were the subject of a prohibition or restriction under or by virtue of any enactment which was in force at the time of the evasion or attempt at evasion. This is an essential element in any prosecution, but its proof in many cases is likely to be a formality. In the present case the fact that the video cassettes contained indecent photographs of children, which is prohibited indecent material, was agreed between the defendant and the prosecutor. The second thing which the prosecutor must prove is that the defendant was knowingly concerned in a fraudulent evasion or attempt at evasion of the prohibition or restriction.” A number of provisions create prohibitions on indecent photographs, including Section 1 of the Obscene Publications Act 1959 (obscene publications), Section 1 of the Protection of Children Act 1978 (indecent photographs of a child under the age of sixteen) and Section 42 of the Customs Consolidation Act 1876 (indecent photographs). Section 35 of the Criminal Justice and Public Order Act 1994 provides, so far as relevant, as follows: “(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question. (3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.” The applicant complained under Article 7 of the Convention that domestic law is not sufficiently precise to enable an individual to know in advance whether his conduct is criminal. He also complained under Article 6 that the trial was unfair for the same grounds as made in his appeal against conviction, that his appeal was refused in an ill-considered way, in particular that his grounds of appeal entitled “misdirection on standard of proof” and “infringement of right to silence” were not properly dealt with.