Fox v R.

A jury must determine whether an indecent-photograph count is proved by reference to the particular photograph charged. A direction permitting conviction if any photograph in a wider album is indecent renders the conviction unsafe.

Evidence bearing on a defendant’s sexual purpose must be assessed separately. The court must first decide whether each item is bad-character evidence under the Criminal Justice Act 2003 and, if so, apply the statutory gateways. Otherwise, it must determine admissibility at common law. A private record of sexual thoughts had little probative value concerning later conduct and carried serious prejudicial risk. Admissible similar-fact evidence also requires careful directions on its proper and limited use.

The appellant was convicted at Exeter Crown Court of two offences of causing a child under 13 to engage in sexual activity and two offences of taking an indecent photograph of a child. He received concurrent suspended sentences and related protective orders.

The prosecution alleged that the appellant directed two young girls into sexual poses for his gratification. To prove his purpose, it relied on photographs of older girls, material found in his van and a private notebook. On the indecent-photograph counts, the indictment identified one photograph of each child, but the jury were directed that they could convict if any photograph in the relevant album was indecent.

The appeal challenged the safety of the convictions, principally because of the jury directions and the admission and use of purpose evidence.

1. Appeal allowed. The convictions on all four counts were unsafe. Leave to appeal was granted and the appeal allowed.
2. Counts 2 and 4 each identified a particular photograph. The judge nevertheless directed the jury that conviction was permissible if at least one photograph in the relevant album was indecent. That direction permitted conviction without agreement that the photograph specified in the indictment was indecent. The jury should have been directed to assess the first, specified photograph in each bundle. The convictions on those counts could not stand.
3. The court did not decide whether the photograph charged in count 2 was capable of being indecent. It observed that, consistently with R v Stamford 56 CrAppR 398, indecency is for the jury, but the photograph must be capable of being found indecent by a properly directed jury.
4. The judge erred by treating the evidence about the older girls and the notebook as admissible at both common law and under the Criminal Justice Act 2003, without first deciding the correct route for each category. The exclusion in section 98(a) for evidence concerning the alleged facts of the offence concerns the actus reus. It did not remove evidence directed to the appellant’s sexual intention from the statutory bad-character scheme.
5. The photographs of the older girls were capable of being bad-character evidence and required consideration under the statutory gateways. The notebook, however, recorded private thoughts rather than deeds. Its limited, if any, probative value regarding the appellant’s later purpose was substantially outweighed by its serious prejudicial effect, and it should not have been admitted.
6. Most of the material from the van was likewise more prejudicial than probative. Three identified photographs were admissible at common law as similar-fact evidence because their distinctive sexual poses, or their display beside sexual images, could show deliberate sexual posing. The judge was required to assess each category separately and give precise directions on what it could and could not prove. The deficient directions, combined with the wrongful admission of material, made the remaining convictions unsafe.

• Court of Appeal (Criminal Division): allowed the appeal against convictions entered at Exeter Crown Court and held all four convictions unsafe.
• Crown Court at Exeter: on 7 November 2007, convicted the appellant of two sexual-activity offences and two indecent-photograph offences; on 7 January 2008, imposed concurrent 12-month suspended sentences and related orders.