Baddiel, R v

For the purposes of section 63 of the Criminal Justice and Immigration Act 2008, whether an image is pornographic depends on the purpose reasonably inferred from its nature. The identity and subjective purpose of the photographer, sender or recipient are irrelevant. The contextual treatment of a series of images does not alter that conclusion.

Convictions relating to images on one device are not unsafe merely because the defendant was acquitted of corresponding counts concerning another device. The jury may draw a logical distinction where the evidence, the defendant’s account and the available defence differ between the devices.

The appellant was convicted in the Crown Court at Harrow of possessing three extreme pornographic images found on his mobile telephone, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008. He received a conditional discharge and costs. He was acquitted of three corresponding counts relating to the same images on his laptop.

The images had been sent without request in a WhatsApp group and were automatically stored on the telephone. They were later deleted. The laptop files were automatically transferred and there was no evidence that they had been accessed. The appeal challenged, first, the construction of the statutory definition of a pornographic image and, secondly, the safety of the telephone convictions in light of the laptop acquittals.

1. The court dismissed the appeal. It rejected the appellant’s renewed application for leave on the first ground and rejected the statutory-construction ground for which leave had been granted.

2. Under sections 63(2) and 63(3) of the Criminal Justice and Immigration Act 2008, the question is whether the image is of such a nature that it must reasonably be assumed to have been produced solely or principally for sexual arousal. The statutory definition identifies the class of images whose possession is criminalised. It does not require the court to identify the producer or assess whether the photographer, sender or recipient had that purpose. The relevant inferred purpose may be the sexual arousal of any person who comes to possess the image.

3. Sections 63(4) and 63(5) allow the context of a series to show that an individual image is not pornographic when the series as a whole was not produced principally for sexual arousal. That contextual provision did not make the identity or purpose of the person who assembled or sent a later series relevant. Section 63(8) merely defines an image, including data capable of conversion into one, and did not assist the appellant’s construction.

4. The telephone convictions were not unsafe. The evidence concerning the telephone and laptop differed materially, as did the appellant’s accounts, conduct and the defences available in respect of each device. The time between receipt of the images on the telephone and their later transfer to the computer entitled the jury to distinguish responsibility for possession on the two devices. The verdicts were therefore jury verdicts properly open on the evidence.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and refused the renewed application for leave on the first ground.
• Crown Court at Harrow — convicted the appellant of three offences under section 63(1) of the Criminal Justice and Immigration Act 2008, and acquitted him of three corresponding laptop counts.