Thompson v R

A sentencing court dealing with possession of indecent images of children must have reliable information about the quantity of images at each seriousness level. It cannot infer that a large number of unclassified images includes a large quantity at a higher level. The prosecution should provide a schedule or agreed representative counts, and specific counts should identify the image, its nature as a photograph or pseudo-photograph, and the estimated age range where possible.

A disqualification from working with children may not be made where the substituted sentence is not a qualifying sentence.

The appellant pleaded guilty at Basildon Crown Court to 12 counts of possessing indecent photographs or pseudo-photographs of children. Eleven counts concerned specified images and one count concerned 3,735 further images. He received concurrent sentences of two years’ imprisonment.

On his appeal against sentence, the central issue was whether the judge could treat the unclassified images as including a large quantity of level 4 material when the prosecution had supplied no breakdown by seriousness level. A further issue was whether an order disqualifying the appellant from working with children could be made after the sentence was reduced.

1. Appeal allowed. The court quashed the concurrent sentences of two years’ imprisonment and substituted concurrent sentences of nine months.

2. The sentencing judge had insufficient information to sentence the appellant by reference to a large quantity of level 4 material. The court applied the categorisation and sentencing guidance in R v Oliver [2002] EWCA Crim 2766. Although the specified images could be assessed, the prosecution had provided no schedule or other evidence showing the approximate number of the remaining 3,735 images at each level. The judge therefore had no proper basis for finding that a large quantity was at level 4.

3. The court gave procedural guidance for comparable cases. Where there are many images, an indictment should include a comprehensive count for the balance of the material. Specific counts should, where practicable, be representative. If that cannot be agreed, the prosecution should provide the defence and the court with an approximate level-by-level schedule sufficiently in advance of sentence. Specific counts should identify the image and state whether it is a real photograph or a pseudo-photograph.

4. Having regard to the deficient information, the deletion of the images, the absence of distribution, personal mitigation and the appellant’s conduct in custody, nine months’ imprisonment was appropriate.

5. No disqualification order was made under section 28 of the Criminal Justice and Court Services Act 2000. No order made below could be located, and the substituted nine-month sentence was not a qualifying sentence for such an order.

• Court of Appeal (Criminal Division): Allowed the appeal against sentence, quashed the concurrent two-year sentences and substituted concurrent sentences of nine months’ imprisonment.
• Crown Court at Basildon: Following guilty pleas to 12 counts of possessing indecent photographs or pseudo-photographs of children, imposed concurrent sentences of two years’ imprisonment on 28 November 2003.