Rai, R v

Where the elements of an offence of making indecent images of children have been admitted by agreed facts, a later challenge to the number or classification of images will not make the conviction unsafe without a proper basis for disturbing that agreement. The age of a person depicted is a matter for the jury, not expert opinion.

A defendant relying on the statutory defence in Protection of Children Act 1978, section 1B(1)(a), must prove that making the images was necessary for the specified criminal-investigation purpose. A very late renewal of an application for leave to appeal requires good reason and will be refused where the proposed fresh evidence affords no ground for allowing the appeal.

The applicant, a serving police sergeant, was convicted at the Crown Court at Southwark of four counts of making indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. He relied at trial on the section 1B defence, contending that downloads were made during research for law-enforcement training.

His initial application for leave to appeal was refused by a single judge and was not renewed. More than three years later, he sought an extension of time, permission to substitute new grounds, and leave under section 23 of the Criminal Appeal Act 1968 to adduce digital-forensic evidence. He contended that the agreed number of images was seriously overstated and that counsel had not properly used notebooks said to support his research account.

1. The court refused the application for an extension of time, permission to amend the grounds, leave to appeal, and leave to adduce fresh evidence. The proposed grounds disclosed no basis on which the convictions could be regarded as unsafe.

2. The prosecution elements of the offences had been admitted at trial. Whether a downloaded image is indecent and whether it depicts a child are matters for the jury if genuinely disputed. Following Land [1998] 1 Cr App R 301 and Hill [2003] EWCA Crim 42, the age of a depicted person is not a matter for expert evidence. The proposed fresh experts could therefore not give admissible opinion evidence on age or indecency.

3. The applicant was far too late to contend that he had not understood or assented to the agreement as to the images. He had admitted downloading images, had ample opportunity to instruct those acting for him, and had not raised such an objection in his earlier grounds of appeal. The precise number did not matter because he had not then asserted that the agreed figure was seriously inaccurate.

4. The applicant also failed to establish that any download was necessary for the purpose required by section 1B(1)(a) of the Protection of Children Act 1978. The jury had been entitled to reject his research explanation, including his account of the notebooks. Although aspects of the trial preparation and the original expert’s work were unsatisfactory, they did not undermine the safety of the verdicts.

5. Applying the approach in Johnson [2016] EWCA Crim 1613, the court held that a long extension required good reason. No substantial injustice would result from refusal, and the explanation for the delay was incomplete and unsatisfactory.

• Court of Appeal (Criminal Division): refused the applicant’s late applications to renew leave to appeal against conviction, amend the grounds, and adduce fresh evidence.

• Single judge: refused leave to appeal against conviction on 18 December 2013. The refusal was not renewed at that time.

• Crown Court at Southwark: convicted the applicant on 10 September 2013 of four offences under section 1(1)(a) of the Protection of Children Act 1978, and sentenced him on 7 October 2013.