Regina v Hashim Hussain

For offences involving indecent photographs or videos of children, indecent does not mean unlawful. The jury must apply current recognised standards of propriety, including where the image records consensual sexual activity by a 16- or 17-year-old. That approach accommodates changing standards without requiring a different direction for lawful or consensual activity. A prosecution may use an annotated slow-motion video as a presentational aid, provided its nature and source are clear, the material is confined to the prosecution case in brief and neutral terms, and the jury understands that disputed identification remains for it to decide. Any claimed statutory anomaly is for Parliament to correct, not the courts by strained interpretation.

The applicant was convicted in the Crown Court at Manchester of taking and possessing indecent moving images of two girls aged 16 and 17, under section 1(1)(a) of the Protection of Children Act 1978 and section 160(1) of the Criminal Justice Act 1988. He sought an extension of time to renew his application for leave to appeal.

He challenged the use of a colour-coded, annotated slow-motion video identifying the alleged cameraman and argued that the statutory concept of indecency should not apply to consensual sexual activity which was lawful. The central questions were whether the trial presentation was unfair and whether the conventional jury direction on indecency remained appropriate.

1. Renewed application refused. The court granted no extension of time because the proposed grounds disclosed no arguable basis for suggesting that the convictions were unsafe.

2. The annotated slow-motion video was a permissible working document and presentational aid. Under R v Jurecka [2017] EWCA Crim 1007, [2017] 4 WLR 205, such material may be placed before the jury if its nature and source are made clear. It should be confined to a convenient reminder of the party’s factual case and, in brief and neutral terms, the inferences said to arise.

3. The prosecution was entitled to colour-code the figures and identify the features relied on to establish the identities of those shown, including the cameraman. Where identification is disputed, the jury must be told that the presentation is only the prosecution case and that it must decide whether the identification is proved. Specific contrary arguments should be identified clearly. Naming the persons whom the prosecution alleged were represented by the colour-coded figures did not unfairly prejudice the applicant, and did not prevent him from maintaining that he had not admitted being the cameraman.

4. For the offences under section 1(1)(a) of the Protection of Children Act 1978 and section 160(1) of the Criminal Justice Act 1988, the prosecution had to prove that the image showed a person under 18 and was indecent. The word indecent did not mean unlawful.

5. Whether an image is indecent remained a matter for the jury, applying the direction approved in R v Stamford [1972] 2 QB 391, (1972) 56 Cr App R 398. The jury must apply recognised standards of propriety and consider whether right-minded people would regard the image as indecent. The same approach applied where the image depicted consensual sexual activity by a 16- or 17-year-old.

6. The court identified possible protective reasons for criminalising such filming and noted that Parliament had made specific provision for some matters involving victims aged 16 to 17. In any event, any anomaly was for Parliament to correct. The court would not impose a strained interpretation or require a direction inviting the jury to consider absence of consent where no non-consensual activity was alleged.

• Court of Appeal (Criminal Division): The applicant’s conviction followed a trial in the Crown Court at Manchester. A single judge refused leave to appeal. The Court of Appeal refused an extension of time and refused the renewed application, holding that no arguable ground showed that the convictions were unsafe.