Miles v R

Whether a photograph of a child is indecent is ordinarily a question for the jury. The jury must apply an objective standard of recognised propriety, rather than its individual views. Categorisation scales do not decide indecency at trial; they concern sentence only after conviction.

Photographic evidence may demonstrate a sexual interest in children and may therefore be relevant to allegations of sexual abuse. It cannot, by itself, prove physical sexual offending. A jury must assess its limited significance with all the evidence. A misdirection about that significance does not make convictions unsafe if the summing-up, read as a whole, fairly confines the evidence and the verdicts rest on strong independent evidence.

The appellant was convicted at Basildon Crown Court of sexual offences against two girls, including rape, sexual assault and assault by penetration, and of taking indecent photographs of children. He received a total sentence of 15 years’ imprisonment.

He appealed against conviction with leave on limited grounds. He contended that ten images recovered from his telephone were incapable of being indecent and should have been excluded. He also challenged the judge’s direction that, if count 15 were proved, the images could show a propensity to commit the other sexual offences. The central issues were the jury’s role in deciding indecency and whether the direction rendered the convictions unsafe.

Appeal dismissed. The convictions were safe.

1. The ten photographs were properly admitted. Whether the appellant deliberately took them and whether they were indecent were questions for the jury. The governing inquiry was the objective standard of recognised propriety stated in R v Stamford [1972] 2 QB 391.

2. Neither the categories considered in Oliver [2002] EWCA Crim 2766 nor the COPINE scale supplied a legal classification that displaced the jury’s function. The categories addressed seriousness for sentencing after guilt had been established. The Court followed the observation in Dodd [2013] EWCA Crim 660 that the jury decides indecency and that image seriousness arises only on sentence. The trial judge’s objective direction on indecency was satisfactory.

3. The judge did misstate the Crown’s case by suggesting that proof of count 15 could establish a strong tendency to commit the physical sexual offences. The proper use of such material was more limited. It could support an inference of sexual interest in young girls, but it could not alone prove the other allegations.

4. The misdirection did not distort the jury’s assessment when the summing-up was read as a whole. The judge warned that the photographs were only part of the evidence, that their importance must not be exaggerated, and that they could not alone establish guilt. The present case was materially different from R v D, P and U [2012] 1 Cr. App. R 97, because the images were alleged to have been taken of the very complainants in the indictment. The complainants’ detailed evidence was the central evidence, and the appellant gave no evidence in answer to it. The acquittals on two counts also showed that the jury had assessed the allegations separately.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction.
• Crown Court at Basildon — following a jury trial, convicted the appellant of multiple sexual offences and taking indecent photographs of children; imposed a total sentence of 15 years’ imprisonment.