Law Report: 16 October 1997: Jury can decide age of child in indecent photograph

In a prosecution for possessing an indecent photograph of a child with a view to distribution contrary to section 1(1)(c) of the Protection of Children Act 1978, the judge did not need to direct the jury that they must find that the accused knew that the photograph depicted a person under 16; nor was it necessary, in the absence of direct evidence as to the child's age, for expert paediatric evidence to be adduced.

Regina v Land; Court of Appeal (Criminal Division) (Lord Justice Judge, Mr Justice Poole and Judge Rant) 10 October 1997.

The Court of Appeal dismissed Michael Land's appeal against his conviction on 31 January 1997 at Lewes Crown Court of two counts of possessing indecent photographs of a child with a view to their being distributed or shown contrary to section 1(1)(c) of the Protection of Children Act 1978. He did not appeal against his conviction of seven counts of having an obscene article for publication for gain.

The appellant and his partner ran a mail order business supplying obscene video tapes which depicted homosexual activity. Police raided his premises and found a large quantity of pornographic material, together with video machines and other equipment.

James Wood (Registrar of Criminal Appeals) for the appellant; Peter Walsh (Crown Prosecution Service) for the Crown.

Lord Justice Judge said that the appeal concerned the appellant's conviction for possession of indecent photographs of a child in two video cassettes, in which young adolescent males were depicted in varied and indecent forms of sexual activity. There was no direct evidence about the identity of any of the participants, nor of their ages.

The first ground of appeal was that the judge should have directed the jury that it was not enough, to establish an offence under section 1(1)(c) of the Protection of Children Act 1978, for a defendant to know that he possessed a photograph that was indecent: he had to know that the photograph depicted a person under 16.

The object of the 1978 Act was to protect children from exploitation and degradation. There was a statutory defence in section 1(4) which provided a framework protecting from conviction those whose possession of indecent photographs of children was not prurient. The defence was limited to persons who distributed or were either in possession of such material for a legitimate reason, or were ignorant of and had no reason to believe that they were in possession of or distributing indecent material.

The anxiety expressed by counsel for the individual who did not know that the material depicted someone who was in fact a child was misplaced. A glance would quickly show whether the material was or might be depicting someone who was under 16 and if it was or might be then prosecution would be avoided by destroying or having nothing further to do with it.

The second ground of appeal was that in the absence of direct evidence of the age of the participants, expert paediatric evidence should have been called to enable the jury to be informed of the variations in the onset of puberty in different adolescent males, particularly with persons of different racial origins.

Section 2(3) of the 1978 Act underlined that the question whether such a person was a child for the purposes of the Act was one of fact, based on inference, without need of formal proof. There was no basis for concluding that in the absence of paediatric or other expert evidence the jury was prevented from concluding that the indecent photograph depicted a boy or girl under the age of 16.

The purpose of expert evidence was to assist the court with information which was outside the normal experience and knowledge of the judge or jury. Perhaps the only certainty which applied to the problem in the present case was that each individual reached puberty in his or her own time. The jury was as well placed as an expert to assess any argument addressed to the question whether the prosecution had established that the person depicted in the photograph was under 16. The appeal would be dismissed.