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WRIGLEY, R v. [2000] EWCA Crim 44 (26th May, 2000)
Case No: 99/01497/Z5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BIRMINGHAM
(HIS HONOUR JUDGE D P STANLEY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Friday 26th May 2000
B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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REGINA
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and -
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CHRISTOPHER
BERNARD WRIGLEY
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Ms Lindsey Kushner QC (instructed for the Appellant)
John Mitting Esq, QC (instructed for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 3rd February 1999, at a retrial in
the Crown Court at Birmingham (His Honour Judge Stanley) the appellant was
convicted of one offence of distributing indecent photographs of children
(Count 2) and one offence of possessing indecent photographs of children for
distribution (Count 3). He was sentenced to three months' imprisonment on
Count 2 and to six months' imprisonment concurrent on Count 3, the total
sentence therefore being six months. It was compulsory that he register as a
sex offender for seven years. He was acquitted on Count 1 (distributing
indecent photographs of children). He now appeals against conviction with the
leave of the Full Court.
2. The appellant had just completed a four year undergraduate degree at Keele
University. On 25th July 1995, acting on information received, the police with
a warrant searched the appellant's rooms and found 32 disks containing 677
indecent images of children, young boys. Evidence was to show that the
appellant had down-loaded those images onto those disks, and that he was using
a computer, the Internet, and e-mail to communicate, swap, and discuss the
images from that store with two American paedophiles, one known as Sonny
Delight and the other John Kinloch.
3. The offences were created by the Protection of Children Act, 1978. The
short title of that Act is:
"An Act to prevent the exploitation of children by making indecent photographs
of them; and to penalise the distribution, showing and advertisement of such
indecent photographs."
Section 1(1) of that Act is the offence creating section and reads as
follows:
"(1) It is an offence for a person
(a) to take, or permit to be taken [or to make], any indecent photograph [or
pseudo-photograph] of a child ...; or
(b) to distribute or show such indecent photographs [or pseudo-photographs];
or
(c) to have in his possession such indecent photographs [or
pseudo-photographs], with a view to their being distributed or shown by himself
or others; or
(d) to publish or cause to be published any advertisement likely to be
understood as conveying that the advertiser distributes or shows such indecent
photographs [or pseudo-photographs], or intends to do so."
4. The scheme of the indictment was that Counts 1 and 2 alleged breaches of
Section 1(1)(b) of the Act, namely Count 1 charged the appellant with having:
"... distributed or shown indecent photographs or children, namely photographs
on file lvb 2."
These were indecent images allegedly sent to Kinloch. Kinloch was called to
give evidence. It is clear that he was not a satisfactory witness, and the
appellant was acquitted on that count. Count 2 used similar wording to allege
the distribution of indecent photographs to Sonny Delight.
5. Count 3 was the principal count, at the heart of the case, dealing with the
appellant's store of indecent photos to be found on the 32 disks found by the
police search. The offence charged was under 1(1)(c):
"to have in his possession such indecent photographs ... with a view to their
being distributed or shown by himself or others"
6. Though there was an issue on Count 2 as to whether the material was
indecent, that issue is not relevant to this appeal. The real issue on Counts
2 and 3 was whether the appellant had made out the statutory defence to be
found in Section 1(4) of the Act:
"Where a person is charged with an offence under subsection (1)(b) or (c), it
shall be a defence for him to prove-
(a) that he had a legitimate reason for distributing or showing the photographs
... or (as the case may be) having them in his possession; ..."
7. The scheme of the Act therefore is that while bare possession of such
indecent photographs is not an offence, it is an offence to take them or to
show them to anyone else or to possess them with a view to their being shown to
anyone else. But all of that is subject to the statutory defence (the burden
of proof of which lies on the appellant) that he possessed them for a
legitimate purpose.
8. Counts 2 and 3 turned on the legitimate purpose defence. The first ground
of appeal complains of a misdirection in the summing-up in relation to it. The
possession of indecent photographs was admitted by the appellant, and he had in
reality acknowledged that they were there in his possession so that as and when
it was appropriate he would exchange photographs or send photographs to
interested paedophiles.
9. The issue here was whether the appellant could prove on the balance of
probabilities that he had a legitimate reason for possessing the indecent
material, namely genuine academic research. His defence was that he was
conducting an informal pilot study as to whether there was material for a PhD.
This required him to pose as a paedophile while he evaluated the different
responses to specific indecent pictures of two different sorts of paedophile,
namely Sonny Delight (who he categorised as an "active fixated paedophile") and
John Kinloch ("non-active fixated paedophile"). The Crown's response to this
was that his reason was to satisfy his own interest in indecent material
featuring young boys: in his own words (but, he would say, while posing as a
paedophile) "I love young boys".
10. There were evidential difficulties in the academic research defence.
First, he had not discussed such a research program with any of his tutors.
Second, he realised it would be difficult to get permission to use pornographic
pictures. Third, a number of his tutors, when he came to them after his
arrest, advised him to take his research material to the police. But he did
not do so. He said he had destroyed most of it, because he did not wish it to
fall into the wrong hands, ie the police's. What he said remained were entries
in his diary or note book which could not be dated. The Crown's case was that
there were no research documents to destroy, in fact he had had to create some
(which he duly did). And fourth, when originally interviewed, he told a
totally different story, as summarised below.
11. Before coming to what he said in that interview, there is no doubting his
interest in children, nor his academic abilities, nor his interest in the
Internet and human response to questions from computers. His suggested PhD
study was not strictly speaking relevant to his undergraduate course work, but
sufficiently close for academics to take it seriously. The Crown's case was,
of course, that this was just a smoke-screen to conceal his real prurient
interest in young boys.
12. From the nature and the wording of his correspondence with Sonny Delight
and Kinloch there was - taken at face value - ample evidence that he was a
paedophile. His answer was, of course, that he was simply pretending to gain
their confidence in the interests of his research. He did not entrust the
police with this information at his first interview. He had told them that he
was not interested in men at all, but was in children. He had an affinity with
children, but it was not a sexual one. As to the indecent photographs, he was
just looking "... to find out about myself ...". The police gave him the
opportunity to say he needed the material for his research, but he said nothing
about it - not trusting the police, he was later to say. The judge was
entitled to comment, as he did, that if what he said about trying to discover
his personal sexual orientation was true "... then any question of legitimate
reason is perhaps blown out of the water."
13. It will be seen that the issue was whether the collection was made and the
material supplied was for genuine academic research.
14. It was common ground that a correct direction was initially given on this
topic, at 16A of the summing-up:
"What he has to do is to persuade you that he probably did have a legitimate
reason. If that is the case, he is entitled to be found not guilty, because he
will have discharged the burden of proof. But if he does not, then provided
the prosecution have made you sure of the other ingredients of the offence, of
course you must find him guilty.
There is another little complication to all of this, because, as Mr Mitting
rightly said to you, if you conclude that the defendant had, as it were, a
secret purpose of gratifying his own sexual curiosity in addition to a
legitimate reason for doing what he did then he is still entitled to rely on
the statutory defence. Putting in the way that Miss Kushner did, that the
statutory defence of a legitimate reason overrides and, as it were, suppresses
any coexistent motive that he may have had to gratify his own sexual
curiosity."
15. That was Miss Kushner QC's defensive position, but the appellant's case
was that he had no sexual interest whatsoever in young boys at the relevant
dates, so the "dual reason" (a legitimate reason = research, and an
illegitimate reason = prurient interest) was never run.
16. That direction dealt with the construction of the statute, and made the
law clear. It did not deal specifically with the resolution of the
controversial issue posed by the statutory defence on each count. That was
done when each count was considered.
17. On Count 1, the question of legitimate reason did not arise (see page
29E). As to Count 2, the appellant had to deal with the pictures he sent to
Sonny Delight. He explained that this was necessary because if he only
received pictures from Sonny Delight, he might be suspected not being a
paedophile but a law enforcement officer: accordingly: "... he sent these for
a legitimate reason as part of my research". As to Count 3, the jury were
again reminded that:
"... his legitimate reason is that he was carrying out genuine academic
research. Just to [point] up the conflict between the prosecution and defence,
the prosecution case is: not a bit of it. The reason purpose for possessing
them was to satisfy his interest in that type of material". (27B-C)
18. The Crown's case was first, that while genuine academic research could be
a legitimate reason, here the reason for the collection was not academic (ie
that the original response to the police in the first interview was right), the
reason for the collection was Mr Wrigley's search for his personal
gratification and/or his sexual orientation.
19. It is against this background that we must consider what follows next
after the approved passage at 16A, quoted above:
" Let's just point up one of the features about this. The prosecution [case]
here is that he may have had a genuine academic interest in the subject about
child sexual abuse. But their case is that this was not the real reason for
him being in possession of these pictures at that time that he was in that part
of 1995 that you are considering. The prosecution's case is that the academic
interest was merely a provisional one, a future one, and that it has been used
by Mr Wrigley as a cover to enable him to satisfy his primary purpose
which was, if you like, a secret prurient interest in child pornography.
So you have to make a decision as to what was actually going on in his mind
from the evidence which you have heard. Where it comes to considering whether
he had a legitimate reason then you will know that he has to prove that he had
a legitimate reason."
20. The complaint is made that the judge confused a clear direction by
introducing the concepts of "provisional" and "future" purposes, namely whether
(as the judge was later to remind the jury at 73E)
"... whether he was just messing about out of his own personal curiosity with
obscene material, with merely some thought that it might be woven into some
research at some stage, or whether he had actually been doing a serious pilot
study for a legitimate reason."
21. It may be, we know not, but it seems likely that the judge departed there
from his note (this was a careful and structured summing-up) and anticipated
what he was to say about the second interview with the police where the
appellant admitted (see the passage quoted at p 73H to 74D) that he had
evidential difficulties in proving his research because he "... had not in fact
got around to doing that [ie, using it for research] so I've been caught
out."
22. Here Miss Kushner has identified an untidiness - at page 16D the judge
appears to have skipped forward without identifying the passage. In our
judgment there is nothing wrong with what we find at pages 73 and 74 - there he
is dealing with the issue and the competing contentions. The judge was
defining the issue, but he was not prejudging it. He was reminding the jury of
the Crown's case.
23. But greater difficulties are caused by the passage at page 16. The
emphasis there was on the time when the collection occurred - a time the
Crown were saying was before there was any idea of research. So it could not
have been the real reason for the appellant's having the indecent photographs.
That is a legitimate point, but it is out of context.
24. Miss Kushner complains that the effect of the passage at page 16 is to
undo the good done by the accurate summary of the law which preceded it, and to
give the impression that, in a dual legitimate reason category, if the academic
reason is not the "real reason" or his "primary purpose" but is "provisional"
or "future", so the jury might convict even though satisfied that the research
was genuine. She submits that it is a misdirection leaving the conviction
unsafe.
25. We are not so persuaded. While conceding that that passage is unhappy in
context, it is unreal to construe oral summings-up as though they were
statutes. The outline and the common-sense of the direction were plain. The
issue was clearly identified. Counsel did not ask for it to be clarified. The
jury did not ask for further help. They gave every indication of having
approached their task carefully and thoroughly. We are not persuaded that this
conviction might be unsafe. The case was a strong one. The summing-up had
this rogue passage in it, but while it might have puzzled the jury, we do not
believe that it contradicted the clear directions both before it and after it
when dealing with the individual counts.
26. Next, Miss Kushner raises the question as to whether it was necessary for
the judge to sum this case up as a dual purpose case - the suggestion being
that the jury should have been told in terms that if they were satisfied that
the appellant had the material both for the legitimate reason of academic
research and for the illegitimate reason of his personal prurient purpose, they
should acquit. That ground of appeal does not seem to appear in the Perfected
Grounds, but we deal with it.
27. There was no application to the judge to put the matter in this way, and
that was not surprising given that the appellant's defence depended on his
credibility which was four-square founded on his frequent and emphatic denials
that he had any sexual interest in small boys - he was only pretending to.
28. Secondly, the judge made the proper analysis of the statutory defence -
namely that the appellant had to prove that his academic interest was his
legitimate reason. The Crown met that by contending that his sexual interest
in small boys was his reason. That was the proper and the clearest way to put
the real issue in the case before the jury.
29. The second ground of appeal concerns the judge's decision to permit the
Crown to cross-examine the appellant on his 1990 notebook. The matter was
dealt with by the judge in his summing-up, and arose in this way.
30. At the time of his trial in 1999, Mr Wrigley was 29. He was giving
evidence about 1995, when he was 25. His diaries reflected him at the age of
20. The diaries contained material showing a sexual interest in young boys
which, as counsel put to him, "... ordinary people would find odd". Such
entries in the diary were not used by the Crown in the first trial. Mr Mitting
regarded them as probative, going to disprove the appellant's assertion that he
had the material for research. But Mr Mitting also recognised their potential
for prejudice.
31. In the second trial, the appellant was being cross-examined that the
reason he was displaying and receiving indecent photographs of boys on the
Internet was his prurient interest in young boys and had nothing to do with
academic research. In answer the appellant held up his notebook which he said
contained what was left of his research notes and said:
"This book and everything in it, everything I have ever written, and everything
I have ever done is with one goal, one objective, and that is to reduce the
incidence of sexual abuse of children."
32. The Crown regarded that as a straight lie on the principal issue in the
case, and asked for permission to put certain entries from the diaries showing
a fixation with young boys' genitalia , eg "What a turn-on!!".
33. The judge found that the diary entries revealed a sexual interest which
the appellant was expressing and recording, in young boys. The detail of the
entries did not matter. The purpose of introducing the material was to
challenge and test:
"Mr Wrigley's claim that he had no interest sexually in little boys and to
challenge his very broad assertion that everything he had ever done and ...
written was ... to reduce the incidence of child sexual abuse."
34. In using the diary, the Crown made it plain that they were not suggesting
that the appellant had ever laid hands on a child. But what emerged from that
cross examination was summarised by the judge, who made it clear that it went
to credibility on that issue:
"What he was saying is that he was in something of [a] turmoil in 1990 and that
he thought he had this sexual interest in children but he was examining and
finding out about it. Certainly by 1992/93 he was quite sure that he did not
have a sexual interest in young boys of the sort of age we have been
considering, and that by the time we reach 1995 there was absolutely no sexual
interest in it at all. There was really no question of him having a secondary
purpose at all. His only motivation at that time, having become interested in
that field in that rather convoluted way that he has explained to you,
following the path of his own life through these influences that exerted
themselves, that he had no sexual interest in them but he was very committed to
examining the causes of and finding solutions to the problem of child sexual
abuse.
So that material from the 1990 diary may have an effect upon your view of his
character and it would be unreal to say to you you cannot take it into account
at all. It is part of the evidence you have now heard and must have a bearing
on your assessment of his as a witness. You will have to decide whether he may
be telling the truth that he had overcome this perceived sexual interest in
little boys or whether it was, as the prosecution suggest, still a serious
driving force in his life in 1995. He is entitled to ask you to use what you
know about his good character in his favour when considering this very
important issue. I hope that is plain enough to you. [We interpose there to
emphasise that his good character had gone before the jury, with both the
credibility and propensity directions]
The one thing you must not do is to say, `Look at what he wrote in 1990. How
disgusting. He must be guilty of these offences with which he is charged
relating to 1995.' That would be a wholly unfair and wrong approach, it would
be using the material for an improper purpose. The prosecution rightly kept it
out of the case until there was a particular issue where it was necessary to
confront Mr Wrigley on that issue. Having done so, you then have to make an
assessment as to the value, that is, to you when reaching a conclusion about
what was going on in his mind in 1995."
35. As that excerpt shows, the material was relevant to support what the
appellant had told the police in his first interview (but subsequently
disavowed) as to what his purpose for collecting the material had been.
36. In our judgment, the material as used was plainly relevant and admissible.
Whether to permit the cross-examination was a matter properly within the
discretion of the trial judge. Mr Mitting has described what he submitted was
the calculated dramatic effect of the appellant's declaration. The judge had
to decide whether "... it was necessary to confront Mr Wrigley on that issue".
He concluded that it was. His approach to the exercise of that discretion
cannot be faulted. He, and not this Court, was in the best position to judge
what fairness (to defence and prosecution) required in the balance of this
trial, and it cannot be said that his conclusion was perverse or irrational.
37. Accordingly, we dismiss this ground of appeal, and the appeal itself.
© 2000 Crown Copyright
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