D & Ors, R. v

Evidence that a defendant viewed, collected or made indecent images of children may be admissible through gateway D as evidence of a sexual interest in children. That interest is capable of making an allegation of child sexual abuse more likely to be true. The evidence is not automatically admissible. The court must consider its precise relevance and fairness, and the jury must not infer active abuse directly from possession of images.

Each statutory gateway under the Criminal Justice Act 2003 must be considered separately. Gateway F does not arise from a bare denial of the charge, and gateway C cannot replace a failed propensity argument. A jury should receive clear directions about the limited relevance of the evidence and the need to avoid prejudice.

Three defendants appealed convictions for sexual offences against children. Each denied sexual contact. In each trial, the prosecution relied on evidence that the defendant had viewed, possessed or made indecent images of children.

The appeals were heard together because they raised the common question whether such material could be admitted as bad character evidence through gateway D. The cases also raised issues about the false-impression and explanatory-evidence gateways. D challenged aspects of the admission and direction; P challenged the admission of images and internet searches; and U additionally challenged the sufficiency of evidence on one rape count and the jury directions on consent.

1. The appeals were dismissed. Leave to appeal was granted in each case. The court held that evidence of viewing, collecting or making child pornography is capable of demonstrating a sexual interest in children. That unusual character trait can be relevant through gateway D to whether allegations of child sexual abuse are true.

2. The evidence does not prove a practice of committing sexual abuse, and it does not permit a direct inference from possession of images to active abuse. Its admissibility depends on the facts, the strength of the link between the images and the allegation, and fairness. Judges should identify the relevant gateway, direct the jury as to the precise permitted use, and consider warning against allowing revulsion at the images to displace careful analysis. Images should generally be described neutrally rather than shown to the jury.

3. Gateway F was unavailable where a defendant had done no more than deny the allegation. It also ceased to apply where an impression given in interview was withdrawn or disowned before the jury. Gateway C applies only where the jury cannot properly understand the case without the bad-character evidence; it cannot be used as an alternative route for propensity evidence which does not satisfy gateway D.

4. In D’s case, a photograph whose subject could not be identified as a child from the defendant’s knowledge was wrongly admitted, and digital penetration alone did not show an unusual sexual interest. The conviction remained safe because other material, including photographs he had taken of an unclothed young girl, was properly admissible. In P’s case, showing pornography to a complainant formed part of the alleged offending and was independently admissible under section 98(a) of the Criminal Justice Act 2003. In U’s case, the quantity and nature of the images were properly admitted despite their later date, since such an interest was unlikely to have changed materially over the intervening years.

5. There was evidence capable of supporting U’s rape count concerning the complainant at age 15. Although a fuller direction on consent would have been preferable, consent has its ordinary meaning and is not confined to submission through force, fear or lack of physical strength. The jury could safely conclude, in the context of the alleged longstanding abuse, that there had been no real consent.

• Court of Appeal (Criminal Division) The court heard the three appeals together and dismissed each appeal against conviction.
• Trial court Each appellant had been convicted of sexual offences against children. The judgment does not identify the trial courts or provide citations for the convictions.