No: 200403951/A3 
Neutral Citation Number: [2004] EWCA Crim 3222
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 7th December 2004
 
B E F O R E:

LORD JUSTICE KENNEDY 

MR JUSTICE BELL 

MR JUSTICE HUGHES 

- - - - - - -
REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 89 OF 2004 
- - - - - - -
 
Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
 - - - - - - -
MR H DAVIES appeared on behalf of the ATTORNEY GENERAL
MR P BOGAN [MR K HOSSEIN-BOR] appeared on behalf of the OFFENDER
 - - - - - - -
J U D G M E N T
1.	LORD JUSTICE KENNEDY:  HM Solicitor General seeks the leave of this Court to refer to the Court a sentence which she considers to be unduly lenient and we grant that leave.
2.	In January 2003 Earl Webster Cox was arrested in Colorado.  His house was searched and computer equipment was seized.  Officers from the United Kingdom's National Hi-Tech Crime Unit were permitted to take a copy of the hard drive from the computer.  That resulted in investigations being made and a search warrant being obtained which was executed at the Huddersfield home of the offender at about 10.00 a.m. on 18th August 2003.  He is a single man born on 19th February 1959, so then 44 years of age.  He was present when the police arrived.  He was taken to the police station where he became ill and had to be transferred to hospital, but he recovered quite quickly and was fit to be interviewed later the same day.  At his home address the police officers had found computer equipment and 161 compact disks.  Examination of those compact disks showed that three of them contained a total of 174 indecent images of children.
3.	The connection between Colorado and Huddersfield was easily made because Cox in Colorado, using the name "Wizard",  organised passport-protected bulletin boards which enabled those interested in paedophilia to communicate with each other across the world and share information, but not images.  So, for example, a person with access to a bulletin board could post on that board, in computer-speak, a request for a particular type of pornography and to that request others might response.  In the lower court prosecuting counsel, Mr Rae, described bulletin boards as being like private members' clubs with administrators acting as officers of the club.  They are, he said, "the life blood of the paedophile community".
4.	One of Wizard's bulletin boards was the "Lost Property Community Board" which existed to enable administrators of other boards to discuss matters of common interest, and the Colorado material showed that in March 2002 the offender had been welcomed to the Lost Property Community Board as an administrator of the Ranchi board.  Cox, or Wizard, had close links to that board, but he was not an administrator of it.  It had, it seemed, its own head administrator and about six other administrators of whom the offender was one.  
5.	After his return from hospital on the day of his arrest, the offender was interviewed by two officers of the NHTCU for about one hour and 25 minutes.  He was offered the services of a solicitor, but declined.  It is clear from the transcript of that interview that it was carefully and courteously conducted by experienced officers.  It is also clear that the offender was co-operative, even if, as the prosecution later contended, he endeavoured to minimise his role as an administrator and to exaggerate his disenchantment with paedophilia.
6.	On the following day, 19th August 2003, the offender was interviewed for a second time.  On that occasion he did have a solicitor present and the interview lasted for about one hour and 20 minutes.  As on the first occasion, the offender was apparently co-operative throughout.  Examination of the offender's computer revealed what was posted on the Ranchi bulletin board on the day of his arrest.  The material was of the type to which we have already referred.  In addition, in the unallocated clusters of the hard drive there were two images of naked young girls, one of which had been partially erased.  That indicated that two readily available programmes for the eradication of material from the hard drives had been run and it was naturally suspected that the offender had run those programmes to thwart any inspection of his activities that might take place.
7.	During the course of his interview, the offender was asked about the Ranchi bulletin board and about his position as one of its administrators.  He said that the board operated at two levels: the public level as shown on the board on the day of his arrest and an underground level only accessible to those who had the address.  At the public level the board attracted attention not only from those who were sympathetic to it, but also from law enforcement officers, persons unsympathetic to any such enterprise and hackers who simply sought to challenge any form of security.  The head administrator decided how the board should be run.  The role of the offender was mainly to remove unwanted material from the board, whether it was in the form of postings, which had exhausted their useful life, or spam.  He had access to all levels, but at the underground level the need to remove material did not exist.  In order to discharge his duties as an administrator the offender visited the Ranchi board three to five times per day.  
8.	He said that at the time of his arrest about 30 per cent of the material on that board related to child pornography, the remainder being concerned with adult pornography.  When he joined the Ranchi board the percentage of child pornography was, he said, less, and he had no means of knowing the precise nature of the material to which the postings referred.  As Mr Rae said when opening the case for the prosecution in the Crown Court: 
"... what is essentially being distributed are what are described as URLS or 'earls', and these are web addresses, and from the title you can get an indication of the content but it is never a wholly descriptive title.  ... So somebody facilitating their distribution does not actually know if they are facilitating distribution level 1, 2, 3, 4 or 5."
Those numbers referred to the judgment of this Court in R v Oliver and others [2003] 2 Cr App R(S) 15 to which we refer later in this judgment.
9.	The offender could have obtained access to some of the material referred to in the postings on the Ranchi bulletin board, but access to some of the material would have required encryption software which he did not possess.  He maintained that he had no interest in child pornography beyond levels 1 and 2, and that assertion was consistent with what was found on the compact disks and on the hard drive of his computer.  He was, however, an active administrator, as was apparent not only from what he had admitted doing in relation to the Ranchi board, but also from his contacts with the LPCB, which, Mr Rae submitted, showed that he was trusted in the community which he served.
10.	The offender was sent to the Crown Court for trial by the Magistrates' Court on 27th August 2003.  On 10th May 2004 he was arraigned on an indictment which contained 20 counts.  Four days earlier, on 6th May 2004, Mr Rae signed a 30 page case summary which was intended, amongst other things, "to explain how the Crown puts the case in respect of the various allegations made".  Counts 19 and 20 can be disregarded as Mr Rae acknowledged in paragraph 23 of his summary "there is an argument that there is no evidence to support them".  Counts 17 and 18 related to the use of the two programmes run by the offender to eradicate material.  The use of each of those programmes was alleged to be an act tending and intended to pervert the course of public justice.  The offender never admitted using either programme for that purpose.  It was contended on his behalf that he used the programmes to prevent the hard drive on his computer from being overloaded.  Whether or not that was his motivation has never been investigated, because when he pleaded not guilty in relation to those two counts they were ordered to lie on the file on the usual terms.
11.	That left 16 counts which fell into three groups.  (1) Count 1, conspiracy to distribute indecent photographs of children which related to the offender's activities as administrator of the Ranchi bulletin board.  (2) Counts 2 to 10 inclusive, which each alleged that the offender made a level 1 indecent photograph of a child.  They were specimen counts relating to the images recovered from the compact disks.  (3) Counts 13 to 16 inclusive, which were the same as the preceding counts but related to the lesser number of images at level 2. 
12.	The documentation which was required by the defence was not disclosed as early as it should have been, and, even when the case summary was produced, it did not briefly encapsulate, as in our judgment it should have done, precisely how the Crown put its case in relation to the first count.  Nevertheless, Miss Dix-Dyer, for the offender, was able in the time available to advise her client, and, with the benefit of that advice, on 10th May 2004 he pleaded guilty to counts 1 to 16 on the following written basis of plea:
"1.  The defendant pleads on the basis that there is no evidence of him up-loading images.   His own interest is mostly level 1 with a few level 2 images.  As an administrator he was facilitating others to distribute what they want to distribute, namely website addresses of sites containing indecent images.  
2.  Only 30 per cent of the material on Ranchi was paedophilia and that when the defendant first went on the board it was less than it was at the time of his arrest." 
13.	There had been good liaison between counsel prior to the hearing and the pleas were accepted as tendered.  The case was then adjourned for the preparation of a pre-sentence report and was relisted for sentence at Bradford Crown Court on 11th June 2004.  On that day the Crown was represented by Mr Rae, who clearly has experience in the field, and officers from the NHTCU were present to assist him in court.  We mention that because a good deal of what was said to us last Friday by counsel now appearing for the Solicitor General, namely Mr Davies, seemed to amount to little more than a polite submission that either prosecuting counsel in the crown court failed to present the case as clearly as he should have done, or the Recorder failed to understand it.  
14.	Whichever way it is put we are not persuaded by it.  Mr Rae spent a considerable amount of time outlining the facts which we have set out in this judgment.  As already noted, he pointed out that the offender as administrator would have an indication of the content of the material on the Ranchi bulletin board, but would not actually know its level.  Foreshadowing Mr Davies in this Court, Mr Rae invited the attention of the Recorder to some of what was posted on the Ranchi board, saying at page 14 of the transcript of his opening:
"'Extreme Lolitas.com' I have said you cannot tell whether it is level 1 or 5 but if ever there was likely to be an indication of a higher level, the use of the term 'extreme' would hint at that.  I am not suggesting that the defendant has accessed them, I am using this as an example of postings within the paedophile community and what is contained within them."
15.	The Recorder then intervened to show that he understood that as relating to count 1.  Mr Rae continued:
"Absolutely, that is the only relevance of it, yes. As I say, my learned friend I know is going to address your Honour on the fact that he is in ignorance of the content.  I am not seeking to go behind that but I am seeking to indicate that the language used is ambiguous in this outline.  We have 'Underage-video.com; 'Pre-t-erotica; 'Pure Lolita; 'Boy erection 'Lolita Sweet; 'Lolitas for sale; 'Little pussy info; 'Pre-teen goddess; 'Lolita's factory' -- and what the Crown have to say about this is that by facilitating the distribution of these sort of messages on the Ranchi bulletin board that is the subject matter of count 1, the defendant is fulfilling the role that he admits to of being an administrator."
16.	For reasons which will emerge later in this judgment it is important to note Mr Rae's position, that he was not seeking to go behind the defence assertion, that the offender was in ignorance of the content of the material to which the posted messages referred.  Miss Dix-Dyer for the offender accepted the submission of Mr Rae that an administrator is not necessarily to be equated with a distributor, but left it to the court to say which was worse.  
17.	At page 3 of the transcript of her mitigation she set out her understanding of the way the case in relation to count 1 was put against her client:
"... he facilitated the posting of the websites by assisting in providing the medium by which others could post those website addresses.  Really, posting adverts for websites, although not specifically detailing what would be found there if one went to have a look."
She recognised that had to be a simplification and as such no one objected to it.
18.	The offender did have one potentially relevant conviction in 1997, when, for five offences of publishing an obscene article, he was fined £100 and was ordered to undertake community service for 80 hours.  Apparently that offending was concerned with adult videos and Miss Dix-Dyer invited the court to disregard it.  As she pointed out, there is no evidence in this case of financial gain, and the offender's life has been devastated by his arrest.  He was, as was clear at the time of his arrest, in relatively poor health.  At the time of sentence he was said to be suffering from angina and a blocked artery.  After his arrest he was released on bail, but press publicity made him a target and he had to flee his home.  He could not even risk returning for his possessions, so the landlord of the property disposed of his belongings and relet the property.
19.	Before we turn to the decision of the Recorder it is appropriate to remind ourselves of the relevant statutory provisions and of one guideline decision of this Court.  It is an offence contrary to section 1(1)(b) of the Protection of Children Act 1978 to distribute indecent photographs of children.  The penalty for such an offence committed after 11th January 2001 is up to ten years' imprisonment.  It is therefore an offence to conspire to distribute such photographs and for that offence the same penalty is available.
20.	In August 2002 the Sentencing Guideline Panel, at the request of this Court, offered advice as to the proper approach to sentencing for offences contrary to section 1(1) of the 1978 Act.  That advice was adopted by the Court, with some minor modifications, in R v Oliver.  The Panel had advised, and the Court accepted, at paragraph 9 of the judgment that:
"... the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it."
21.	As to the nature of the material, the Court set out five levels: 
"(1) images depicting erotic posing with no sexual activity; 
 (2) sexual activity between children, or solo masturbation by a child; 
 (3) non-penetrative sexual activity between adults and children; 
 (4) penetrative sexual activity between children and adults; 
 (5) sadism or bestiality."
22.	Turning to the nature of the offender's involvement, the Court said at paragraph 11: 
"... the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse.  Any element of commercial gain will place an offence at a high level of seriousness.  In our judgment, swapping of images can property be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material.  Widescale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims."
23.	The Court then turned to particular factors relevant to the level of sentence and set out guidelines, not to be construed as a straitjacket, from which a sentencer cannot escape.  For present purposes we can begin with paragraph 16:
"We agree with the Panel that the custody threshold will usually be passed where any of the material has been shown or distributed to others, or, in cases of possession, where there is a large amount of material at Level 2, or a small amount at Level 3 or above.  A custodial sentence of up to six months will generally be appropriate in a case where (a) the offender was in possession of a large amount of material at Level 2 or a small amount at Level 3; or (b) the offender has shown, distributed, or exchanged indecent material at Level 1 or 2 on a limited scale, without financial gain.  A custodial sentence of between six and 12 months will generally be appropriate for (a) showing or distributing a large number of images at Levels 2 or 3; or (b) possessing a small number of images at Levels 4 or 5. 
17. In relation to more serious offences, a custodial sentence between 12 months and three years will generally be appropriate for (a) possessing a large quantity of material at Levels 4 or 5, even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at Level 3; or (c) producing or trading in material at Levels 1 to 3.  Sentences longer than three years should be reserved for cases where (a) images at Levels 4 or 5 have been shown or distributed; or (b) the offender was actively involved in the production of images at Levels 4 or 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images.  An offender whose conduct merits more than three years will merit a higher sentence if his conduct is within more than one of categories (a), (b) or (c) than one where conduct is within only one such category.  
18.  Sentences approaching the ten year maximum will be appropriate in very serious cases where the defendant has a previous conviction either for dealing in child pornography, or for abusing children sexually or with violence."
The Court went on to point out that the level of sentence indicated was appropriate for an adult after a contested trial and the offender being without previous convictions.
24.	At paragraph 20 the Court turned to aggravating circumstances.  We need not list them all.  They include a large number of images and a sophisticated approach to trading.  Mitigating factors include, of course, a good character and an early plea of guilty.
25.	The Recorder, having taken time to consider the submissions made to him, said: 
"It is clear the prosecution cannot establish as to what sort of level, on what is sometimes called the Oliver scale going from 1 rising to 5, the material which was essentially contained within the websites given on this bulletin board, at what level these particular images centred.  But it seems clear to me, having regard to the addresses of the URLs, as I understand them to be called, and also the measures which were being taken to ensure that only those who wish could obtain access, that they exceeded Level 2.  Beyond that I am not prepared to go because I do not think it would be fair, having regard to the criminal standard of proof."
26.	He discounted the 1997 conviction as wholly dissimilar and imposed a sentence of 12 months' imprisonment in respect of count 1, one month's imprisonment in respect of counts 2 to 12 and two months' imprisonment in respect of counts 13 to 16, all sentences being ordered to be served concurrently.  The licence period was extended to four years under the provisions of section 85 of the Powers of Criminal Courts (Sentencing) Act 2000, an order was made disqualifying the offender from working with children and as a convicted sex offender he was required to register for ten years.
27.	On 9th July 2004 the Solicitor General signed the reference referring this matter to this Court, and the reference, which relates only to the sentence imposed in respect of count 1, was lodged with the Court of Appeal on that day.  As is usual, the factual basis for the reference was then considered by counsel who had appeared for the prosecution in the Crown Court and the final reference was signed on 24th August 2004.  Up to that point there can procedurally be no ground for complaint, but it did have to be borne in mind that the offender was due for release on 8th December 2004. 
28.	What happened thereafter is, to say the least, surprising.  The offender had decided to seek fresh representation, and we understand that Mr Bogan, who appeared for the offender before us, was not instructed until mid-November.  But before he was instructed the Solicitor General decided, in consultation with her advisers, to seek out fresh evidence which it was anticipated that this Court would be invited to receive and consider.
29.	That fresh evidence, in the form of four statements and a file of documentary material, was sent to the Court on 26th November, just one week prior to the date fixed for the hearing of the reference and 12 days prior to the respondent's anticipated date of release.  The reference had been expected to last one hour.  If the contentious issue of whether fresh evidence can be admitted in relation to a reference were to be considered, it was plain that the hearing was going to take far longer than the time allowed for it and thus that the reference was likely to be taken out of the list and relisted after the offender's release.  We do not regard that as acceptable and it must not happen again.  In the event, Mr Davies decided not to rely on the fresh material, and, even without it, the hearing of submissions lasted for most of the court day.  We will return to that topic at the end of this judgment.
30.	Mr Davies submitted that the culpability of the offender arises less from the material recovered from him, and more from his dedicated role for providing access for others.  We agree.  The sentencing judge was alive to this.  Mr Davies further submitted that distribution of child pornography is a matter of real concern.  Again, we agree.  Parliament and the Court in Oliver had express regard to distribution.  He invited our attention to the intrinsic nature and purpose of bulletin boards and drew our attention particularly to what was on the Ranchi bulletin board at the time of the offender's arrest.  We have already referred to that.  He submitted that if the activity was lawful, there would be no need for so much security.  That is only partially correct because a bulletin board dealing with pornography which is not unlawful might still attract the attention of those opposed to it and of hackers.  
31.	But the core of Mr Davies's submissions, as it seems to us, was that if the attention of the sentencing judge had been directed, as it should have been, to the content of the bulletin board at the time of the offender's arrest, he could then have inferred that the material which the offender was facilitating was to his knowledge not low level material, but extended to hardcore paedophilia up to level 5, or at least that he consciously took the risk that it might be material of that kind. 
32.	We accept that if the circumstances were such that the sentencing judge could and should have drawn either of those inferences then the sentence which he imposed was unduly lenient to a significant degree.  But it was not open to the sentencing judge to draw either inference in this case.  As Mr Bogan pointed out, reflecting something said by Miss Dix-Dyer in the Crown Court, the prosecution might have been better able to invite the court to draw the inferences if they had accessed some of the sites which were apparent on the bulletin board, but that may not have been technically feasible.  Mr Rae plainly came to the conclusion that the material on the bulletin board, although suggestive, was not sufficiently suggestive to make good what is now the prosecution case.  That is why he said that he could not go behind the defence assertion that the offender was in ignorance of the contents of the material to which the posted messages referred.  That concession having been made by responsible counsel in the Crown Court it is simply not open to Mr Davies on behalf of the Solicitor General to invite us to sentence on a different basis here.
33.	If the problem should ever recur, as it may, the moral surely is for the prosecution to avoid being drawn into unnecessary technicalities and to set out in simple terms in a few lines, and at an early stage, the gravamen of its case and the evidence on which it relies to prove it.  Such a formulation would be essential if the matter were to be made intelligible to a jury, and, as this case illustrates, it is also valuable when no jury is required.
34.	Mr Davies also invited to us clarify the Oliver guidelines, in particular as to whether anal and/or vaginal intercourse between children should fall within level 2.  That issue does not arise in this case, and, as we explained during the course of argument, if the matter is to be dealt with other than by reference to the facts of a particular case, it is not a matter now for this Court.
35.	We should also say something about the use of programmes designed to erase material.  We accept that in an appropriate case the use of some programmes may well assist a court to draw the inference that the material erased was illegal and that the reason for erasing it was to thwart the criminal investigation.  But if the prosecution includes in an indictment counts relating to the use of the programmes and then decides not to proceed with those counts after pleas of not guilty have been entered in relation to them, we find it difficult to envisage circumstances in which a sentencing judge could properly, without hearing evidence, infer that the programmes had been used to pervert the course of justice.  
36.	Once it is clear that we cannot in this case draw the inferences for which Mr Davies contends, the criticism of the sentence passed by the Recorder falls away.  He was entitled to find, as he did, that the prosecution had failed to demonstrate that the offender was to his knowledge facilitating the distribution of material at levels  significantly in excess of level 2.  The fact that he was a distribution organiser was an aggravating circumstance and an organiser facilitating the operation of many distributors may well be more culpable than an individual distributor even on quite a large scale.  So a sentence of two years' imprisonment would have been justified if the matter had been contested.  But if the sentence were to be higher that would be difficult to reconcile with the sentences suggested in Oliver for those who, for example, distribute images at levels 4 or 5, or are actively concerned in the production of such images.  Bearing in mind the plea of guilty and the mitigation which was available, we are not persuaded that the sentence imposed in this case was unduly lenient and we dismiss this application.
37.	We turn now to the length of hearing.  The Criminal Appeal Office was never advised by anyone on behalf of either the Attorney General or on behalf of the respondent that the hearing in this case would last more than the time allowed for it, namely one hour.  That is plainly unsatisfactory and we asked for an explanation.  We have now received a letter from the Attorney General's Chambers in which there is an apology for the failure to provide a proper time estimate in this case and a promise that in future the Legal Secretariat to the Law Officers will always provide a time estimate in relation to any case which is considered likely to take more than one hour to conclude.  We accept the apology and are content to proceed on the basis now envisaged, but we must also point out that advocates instructed to appear in this Court have a separate obligation to advise the Criminal Appeal Office if, in their opinion, the time allowed for a hearing is or becomes seriously inaccurate.  Accurate time estimates are essential if there is to be effective listing and effective listing is in the interests of everyone.