Neal, R. v

The question whether a photograph is indecent is determined by an objective standard. A jury must apply recognised standards of propriety, or the standard of decency set by ordinary right-thinking members of the public. It must not decide the issue by its own wholly subjective views.

A material failure to give that direction may render convictions unsafe where a correctly directed jury might have acquitted. Where a directed acquittal removes a highly prejudicial count but leaves related counts for decision, the jury should be discharged if there is a real risk that knowledge of the removed material will prejudice its assessment of those counts.

R v Neal concerned convictions at Snaresbrook Crown Court for possession of indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988.

The appellant had also faced a count concerning an extreme pornographic image under section 63(1) of the Criminal Justice and Immigration Act 2008. The Recorder directed an acquittal on that count because there was insufficient evidence that the statutory injury criterion was met. The jury nevertheless convicted on five remaining counts concerning photographs reproduced in books available from reputable retailers.

On appeal, the issues were whether the jury had received a correct direction on indecency, whether it should have been discharged after seeing the material in the acquitted count, and whether a retrial would be in the interests of justice.

1. Appeal allowed. The convictions on counts 1 to 5 were quashed. The Recorder's directions did not sufficiently require the jury to apply the objective test of indecency.

2. The governing test was whether the images would be regarded as indecent under recognised standards of propriety, or by the standard set by ordinary right-thinking members of the public. Although jurors are representative of the public and are custodians of contemporary standards, they must not decide the issue by their personal subjective views. The Recorder's invitation to decide whether the photographs were indecent “to your minds”, read with the earlier direction, failed to state that requirement with sufficient precision: see R v Stamford [1972] QB 391 and R v Graham-Kerr (1989) 88 Cr App R 302.

3. The defect was material. There was a real possibility that a properly directed jury would have acquitted. The wide availability of the books made a correct and careful direction particularly important.

4. The jury also ought to have been discharged when count 6 was withdrawn. Having seen the highly prejudicial DVD, there was a very real risk that it would be prejudiced when assessing the different photographs charged in counts 1 to 5. That provided an additional reason why the convictions could not stand.

5. No retrial was ordered. Although the indecency question could in principle be decided by a properly directed jury, a retrial was not in the interests of justice. It was unfair to prosecute an individual purchaser for possessing photographs in widely available books. If the indecency of those publications were to be tested, proceedings against a publisher or retailer were the appropriate course.

• Court of Appeal (Criminal Division) — allowed the appeal in [2011] EWCA Crim 461, quashed the five convictions and refused a retrial.

• Snaresbrook Crown Court — directed an acquittal on count 6, convicted the appellant on counts 1 to 5, and imposed a community order with a two-year supervision requirement.