Simons, R v

Evidence of other conduct cannot be admitted merely to show that an accused has a propensity to commit the charged offence. A denial of the other conduct does not make such evidence admissible as evidence of credibility.

Evidence capable of bearing on whether the charged conduct was accidental or innocent may be admissible for that limited purpose. The jury must receive a clear direction that it cannot use the evidence as proof of the charged offence simply because it suggests an interest or disposition. A conviction is unsafe where improperly deployed propensity evidence was prominent at trial and in the summing-up.

The appellant was convicted at Hull Crown Court of four counts of making, and one count of possessing, indecent photographs of children. Fifteen thumbnail images had been recovered from the free space of his computer hard drive.

The prosecution relied on evidence that, some years earlier, websites containing child pornography had been accessed using the appellant’s personal details, credit card and passwords. It used that evidence, together with titles of adult pornographic videos and DVDs, to show an interest in child pornography and to answer the defence contention that the images had arrived accidentally, through spam email, pop-ups or remote access by a Trojan.

On appeal, the central issues were whether the earlier website-access evidence was inadmissible propensity evidence and whether the jury had been adequately directed about its permissible use.

1. The appeal was allowed. The convictions were unsafe and were quashed. The court declined to order a retrial.
2. At the trial, the website-access material was put to the jury as showing that the appellant had an interest in child pornography. It was not alleged that the charged images had come from those websites. Used in that way, the material went only to propensity and was inadmissible under the applicable common-law rule stated in Makin v The Attorney-General for New South Wales [1894] AC 57.
3. The appellant’s denial in interview did not make the material admissible as evidence of credit. The questions and answers about the earlier website access should have been excluded from the interview. The court applied the reasoning in R v B(RA) [1997] 2 Cr App R 88: a denial of an irrelevant propensity allegation cannot justify rebuttal evidence of that propensity. Nor did Criminal Evidence Act 1898 section 1 provide an answer.
4. The evidence might potentially have been relevant, within an exception to the rule in Makin, to whether the presence or making of the images was accidental. It had not, however, been deployed on that basis, save perhaps in relation to the videos. In any event, the jury should have been told expressly that evidence of earlier website access could not itself prove the charged offences. The direction fell short of the careful limiting direction illustrated by R v Lewis (1983) 76 Cr App R(S) 33.
5. Although the appellant’s innocent explanation was unconvincing in light of the evidence about Trojans and unsolicited email, the website material and video titles had been prominent throughout the case and the summing-up. Their influence was significant. The court therefore quashed the convictions and, considering a further criminal trial unfair, made no retrial order.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction, quashed all convictions and made no retrial order: [2005] EWCA Crim 1284.
• Crown Court at Hull — on 22 July 2004, His Honour Judge Jack convicted the appellant of four counts of making and one count of possessing indecent photographs of children, imposing fines and prosecution costs.