Attorney General's Reference No. 36 of 2013

An offence under section 1 of the Indecency with Children Act 1960 requires a grossly indecent act involving a child. The jury must decide whether right-minded people would regard the act as obviously indecent towards the child. Proof that the defendant actually obtained sexual satisfaction is not a further ingredient.

Later-created sexualised images may be relevant evidence of an earlier sexual interest. Their timing affects weight, which is for the jury. A suspended sentence is inappropriate for grave historic child sexual offending where substantial aggravating features outweigh age, previous good character and the passage of time.

The offender was convicted at Truro Crown Court of six offences of indecency with a child and one indecent assault, arising from conduct between 1972 and 1987 involving four children. He received concurrent sentences of 12 months’ imprisonment, suspended for two years.

The Attorney General sought leave under section 36 of the Criminal Justice Act 1988 to refer the sentence as unduly lenient. The offender applied for leave to appeal against conviction. His challenges concerned the ingredients of indecency with a child, amendments adding further counts, the admission of later-created pseudo-images as bad-character evidence, the good-character direction, and alleged inconsistent verdicts.

The central issues were whether the convictions were safe and whether the suspended sentence adequately reflected the seriousness of the offending.

1. The application for leave to appeal against conviction was refused. Section 1 of the Indecency with Children Act 1960 required proof of an act of gross indecency involving the child. The judge’s direction correctly required the jury to be sure that the act was one which right-minded people would regard as obviously indecent towards the child. Actual sexual satisfaction was not a necessary additional element. In any event, there was evidence from which the jury could have inferred sexual satisfaction if that had been required.
2. The amendments substituting counts of indecency with a child for unsustainable counts of indecent assault caused no prejudice. Although the prosecution’s original charging decision was unsatisfactory, the trial judge was entitled to ensure that justice was done and had properly considered the absence of prejudice.
3. The pseudo-images were admissible. Their highly prejudicial character was controlled by limiting the images shown and using a schedule for the remainder. They were relevant to whether the offender’s interest in the children was sexual rather than artistic, including on the tasting allegations. Their creation after the charged conduct affected the weight of the evidence, not its admissibility: R v B [2011] EWCA Crim 1630.
4. The good-character direction, read as a whole, was adequate. The acquittals on the tasting counts did not make the convictions inconsistent; the jury could rationally assess the differing evidence of each complainant.
5. The Attorney General’s reference was allowed. The original sentence was unduly lenient. The offences involved multiple young victims, serious abuse of trust, sexual exploitation, lasting harm and a lack of contrition. The offender’s age, former good character, artistic reputation and the age of the offences did not justify suspension. The court quashed the suspended sentences and substituted 18 months for the bath incident, consecutive nine-month terms for the photography offences, and a concurrent six-month term for indecent assault, producing a total of two years and three months’ immediate imprisonment.

• Court of Appeal (Criminal Division) — in [2013] EWCA Crim 2574, granted the Attorney General leave to refer the sentence, held it unduly lenient, quashed the suspended sentences and substituted immediate imprisonment. It refused leave to appeal against conviction.
• Crown Court at Truro — convicted the offender on 2 April 2013 and, on 4 June 2013, imposed concurrent 12-month sentences suspended for two years.