Dodd, R. v

A jury must decide independently whether an image is indecent. The COPINE scale is a therapeutic categorisation and is not a legal test of indecency in a criminal trial. The accepted criminal justice scale is that in R v Oliver [2002] EWCA Crim 2766, while the seriousness level of an image is relevant to sentence only after a guilty verdict.

Where material referring to the COPINE scale is admitted because it may bear on an accused’s state of mind when downloading images, the jury must be clearly directed that it does not determine indecency. Irrelevant police opinion evidence and misleading jury material on that central issue can render convictions unsafe.

The appellant was tried at Birmingham Crown Court for making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. He was acquitted on counts concerning three images from one computer, but convicted on three counts concerning photographs embedded in a magazine file found on another computer.

The jury bundle repeatedly described all six images as level 1 and included material purporting to set out the COPINE scale. The images themselves were, at most, borderline indecent, although they appeared alongside sexualised text. The issues were whether the appellant had deliberately downloaded the images and whether the images were indecent.

On appeal against conviction, the central question was whether the presentation of the COPINE material, police descriptions and directions had prevented a fair and legally correct determination of indecency.

1. Appeal allowed. The cumulative errors in the indictment, jury bundle, evidence and summing-up fatally undermined the safety of the convictions. They may have misled the jury about its central task of deciding for itself whether the images were indecent.

2. The COPINE scale was not a legal test of indecency. It was a therapeutic rating system which had not been endorsed in full for criminal proceedings. The court held that the only accepted criminal justice scale was the scale in R v Oliver [2002] EWCA Crim 2766. In a contested trial, it was for the jury to decide indecency; the seriousness level of an image became relevant to sentence only if the jury convicted.

3. The appellant’s interview references to the COPINE scale could, if properly handled, have been relevant to his state of mind and to whether he deliberately downloaded the images. They required a clear limiting direction and were not relevant to the test of indecency. The simpler course would have been to delete them. Police opinion that the images were level 1 was irrelevant and inadmissible on the facts.

4. The erroneous use of the COPINE scale was aggravated by repeated level 1 descriptions in the jury material, exaggerated descriptions of otherwise innocuous photographs, and the absence of proper directions about the redacted images and the separation between downloading and indecency. The acquittals on the first three counts did not demonstrate that the jury had correctly resolved the distinct issue of indecency. No retrial was sought.

The court did not decide whether facially innocuous photographs can become indecent because of their surrounding text.

• Court of Appeal (Criminal Division): The appeal against conviction was allowed because the convictions were unsafe.
• Court of Appeal (Criminal Division): In a previous appeal, the sexual offences prevention order was varied: [2011] EWCA Crim 1772.
• Birmingham Crown Court: The appellant was convicted on 24 September 2010 of three counts concerning the images in the magazine file. He received an 18-month community order in November 2010.