Penner, R. v

A jury may draw an inference that a defendant made indecent images found on a computer in his possession where the surrounding digital evidence supports that conclusion and no account is advanced to displace it. In the absence of evidence that the computer was used abroad, it may also infer that the images were made in the United Kingdom.

The court additionally emphasised that parties must identify the real issues at the plea and case management hearing. A new issue arising during trial must be raised promptly with the judge. A defendant may not reserve it for a submission of no case to answer so as to ambush the prosecution.

The appellant was convicted at Reading Crown Court of ten counts of making indecent photographs of children. The police had seized computers containing deleted indecent images. The Crown also relied on internet-history, website, email and favourites evidence. He received a three-year community order and a five-year sexual offences prevention order.

At trial, the defence made a submission of no case to answer. It contended that the Crown had not proved either that the appellant made the images or that they were made in the United Kingdom. Leave to appeal was granted on the mistaken premise that there was evidence that the computer might have been used in Canada. The central questions were whether the evidence permitted the relevant inferences and whether the late territorial point could affect the conviction.

1. Appeal dismissed. The premise on which leave had been granted was false. There was no evidence before the jury that the appellant had visited Canada or that the computer had been taken outside the United Kingdom. A dishonest online application giving a Canadian address did not provide such evidence, particularly as it selected the London time zone and stated income in pounds.

2. There was ample evidence on which the jury could find that the appellant made the images. The computer was in his possession, the deleted images were found on it, and the associated browsing, email and favourites evidence connected it to relevant websites. No account was given at trial to explain how the images came to be on the computer. It was therefore open to the jury to infer that he downloaded them.

3. It was likewise open to the jury to infer that the downloads occurred in the United Kingdom. There was no evidence that the computer had left the jurisdiction. The Crown therefore had no evidential failure on the territorial element.

4. The court made further observations about case management. The real issue—who made the images—should have been identified at the plea and case management hearing. If a territorial issue emerged during cross-examination, counsel should immediately have told the judge and sought directions. That would have allowed the Crown to consider the presumptions in Sex Offenders Act 1997 and Sexual Offences Act 2003. The court approved the proposition in Chorley Justices case, [2006] EWHC 1795 (Admin), that trial by ambush is no longer permissible. These observations did not found the dismissal.

5. The appellant was ordered to pay the Crown’s costs of £1,200 at £100 per month.

• Court of Appeal (Criminal Division): dismissed the appeal. Leave had been granted on a mistaken factual premise that the computer might have been used in Canada.
• Reading Crown Court: convicted the appellant of ten counts of making indecent photographs of children and imposed a three-year community order and a five-year sexual offences prevention order.