Neutral Citation Number: [2010] EWCA Crim 1155
Case No: 200804703/D2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Date: Wednesday, 5th May 2010
 
B e f o r e:

LORD JUSTICE THOMAS

MR JUSTICE HENRIQUES 
 
MR JUSTICE OPENSHAW 
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R E G I N A 

v 
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STEVEN HENRY PENNER
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Mr J Lynn appeared on behalf of the Appellant  
Miss K Mallison appeared on behalf of the Crown  
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J U D G M E N T 

1.	LORD JUSTICE THOMAS:  The appellant, who appeals by leave of the Full Court in circumstances which we shall have to describe, was convicted of ten counts of making indecent photographs of children in the Crown Court at Reading before Mrs Recorder Arbuthnot and a jury.  He was subsequently sentenced to a community order for 3 years and a sexual offences prevention order for 5 years.
2.	There are two points that arise in this case: (1) the necessity of compliance of the Criminal Procedure Rules and (2) an understanding of the importance of evidence.
3.	The facts may be briefly stated.  On 3rd May 2007 the police executed a search warrant and seized two computers.  One was a laptop.  On it were 1307 indecent images at level 1.  They were on files that had been deleted.  It was not possible to say when they had been created, but the operating system of the computer showed that that system had been in use between March 2001 and January 2006.
4.	The prosecution also were able to show that a partial Internet profile history showed that browsers had visited five sites that might have contained such indecent images of children.  Examination of retrieved web pages by a "Wayback Machine" showed that there were images on these websites shortly after dates when those websites were accessed.  There was also an email found informing Steve Penner (the appellant's name) that his membership for "Forbidden‑dreams", one of the pornographic sites, had expired.  A link to "Forbidden dreams" was in the computer's list of favourites.
5.	A striking feature of this case is that the appellant declined to answer any questions in interview.  He then did not give evidence.  That was because the way in which the defence decided to conduct the case was to put the Crown to proof.
6.	The Criminal Procedure Rules have been in force in this country for some time.  They have abolished what is known as “trial by ambush”.  Sometimes it appears that people do not appreciate that and the duties that arise at the Plea and Case Management Hearing (PCMH).
7.	The Recorder, in what we would commend as an excellent summing‑up, identified five issues.  First:  were the photographs made?  If a question had been asked about that at the PCMH, it would have been answered, as it was at the trial, that plainly the photographs were made.  The second issue was: were they indecent?  Again, if that had been asked at the PCMH, the answer would have been clear:  they were.  The third issue was:  had they been made deliberately and intentionally?  About that there could be no doubt.  If that issue had been raised at the PCMH as it was the trial, there could have been little doubt about it.  The fourth issue, which was the real issue in the case was:  who made the photographs.  If that issue had been raised at the PCMH, it would have been identified as the issue in dispute.  The fifth issue was whether they were made in the United Kingdom.
8.	At the PCMH none of those issues were raised but, if they had been and if the counsel had been asked by the judge were the images made in the United Kingdom, plainly the answer, we are told, that would have been given was that there was no issue about that.  We have been told by counsel today that it did not occur to him that there was such an issue in this case, until he asked the defence expert a question as to where the images were made.
9.	What happened at the trial was, after the Crown had called evidence to the effect which we have set about, a submission of no case to answer was made.  Effectively two points were taken.  First, there was no evidence that it was the defendant who made them, and secondly, the Crown had failed to prove they were made in the United Kingdom.
10.	That is the first time the issue as to where they were made was, we are told, raised.  We shall come back to the significance of that in a moment.  The Recorder rejected that submission and left the case to the jury on the issues that we have described.  The jury convicted the appellant.  The question was raised at the end of the summing‑up about whether there was any evidence in relation to whether the computer was used inside or outside the United Kingdom and the learned Recorder correctly told them that there was no direct evidence.
11.	After the appellant had been convicted there was an application for leave to appeal, which was renewed to the Full Court.  The Full Court granted it on this basis: 
"Mr Lynn, who represents the applicant here as he did below, submitted at the end of the prosecution case that there was no evidence to support first that it was the defendant who made the photographs and secondly that they had been made in the United Kingdom.  The applicant is a Canadian national and there is some evidence to suggest that the computer may have been used whilst he was in Canada." 
12.	Leave to appeal was granted on the basis that this court should have an opportunity of considering that last point in the light of the way the case had been left to the jury.
13.	It is, we regret to say, clear that leave to appeal in this case was granted under a misapprehension by this court.  How it came about is not for us to say, but it appears to be the result of the way the case was put to them.  It is clear from our examination of the evidence in this case that there was no evidence before the jury that this appellant had been to Canada or that the computer may have been used in Canada.  The highest that a suggestion could have been made was that there was an application to an account called “post master”, which gave an address in Canada.  However that application, significantly, was dishonest, in that it represented the applicant to be female, it gave a dishonest date of birth and significantly indicated the that time zone was London Europe and the applicant’s income was £21,000 ‑ £35,000.  That was the only document before the jury upon which it could possibly be suggested that the applicant had some connection with Canada.  There was no evidence whatsoever that the computer had been taken out of this country.  We regret to say, therefore, that the renewed application and the grant by this court proceeded on the way in which the case had unfortunately been put to them.
14.	The reason why the court would not have granted leave, had it known the true facts, is obvious.  First of all, there was clear evidence before the jury that the computer was in the possession of the appellant.  The appellant did not give evidence at all to explain or give any account as to how the images might have come onto the computer.  As the computer was found in his possession without any explanation, it was plainly open to the jury to infer, in the circumstances of the case, that he had downloaded the images.
15.	The second question that then arose was:  was there any evidence to show that the images had been downloaded in the United Kingdom.  It was an obvious inference, in the absence of any evidence that the computer had been taken out of the United Kingdom, that the images had been made in the United Kingdom.  Leave to appeal was therefore granted by this court, it is now apparent, on a wholly false premise, namely there was evidence that the computer may have been used in Canada.  Therefore the appeal must be dismissed.  There was plain evidence before the jury on which this appellant was rightly convicted.
16.	We would, however, wish to return to the further observations we have made about importance of compliance of the Criminal Procedure Rules.  It is suggested, and we accept of course what counsel tells us, that the point as to where the images were made did not occur to him until he was in the middle of cross‑examination.  That is unfortunate because obviously it is right that the issues in this case should have been identified at the PCMH.  If there was an issue as to whether the computer had been taken out of the United Kingdom and the pornography had been downloaded outside the United Kingdom, that would have been a real issue in the case.  That should have been identified to the judge.  
17.	In this case it would have had an important consequence.  The relevant provisions of the legislation would have enabled the Crown to show that, even though they may have been downloaded outside the United Kingdom, if it was an offence in the country where the photographs were downloaded, that would not have made any difference.  The appellant could have been convicted on that basis even if the images were downloaded outside the United Kingdom.  It is not necessary to set out the statutory provisions at length contained in s.7 of the Sex Offenders Act 1997 and s.72 of the Sexual Offences Act 2003, but the presumptions in the Act would have helped the Crown's task in showing that the legislation was the same.
18.	So this case is an ample demonstration of why it is essential that counsel at the PCMH stage carefully examine and identify the issues.  As counsel in this case failed to do so, when the point, as he tells us, occurred to him in the course of cross‑examination, it was then his duty to have identified it to the judge, before going any further with his cross‑examination.  He should not have left the matter for half time.  He should have told the judge that there was a new issue and asked the judge how this matter should be dealt with.
19.	That would have enabled counsel for the Crown to take the opportunity of looking at the law and the presumptions and provisions of the Sex Offenders Act to which we have referred.  It is no longer possible to have cases conducted in the way in which this case was conducted by counsel for the appellant, where points occur to someone and then an attempt is made to ambush the prosecution by a submission of no case to answer.  The Divisional Court made clear in the Chorley Justices case [2006] EWHC 1795 (Admin) that trial by ambush was no longer permissible.  It is a regrettable fact that this court has again had to make that position clear.  It is important to do so in this case, because if counsel had identified the issue, even if it occurred to him late (in a proper manner and not by means of submission at half time) then the Crown would have had an opportunity, if there had been any evidence in this case, to correct and bring before the trial court proper evidence. It is no longer permissible for the ambush of the type that it might be suggested happened in this case, to be performed in the future.  We add those merely by way of observations.  The appeal fails simply because, had the true position been put before this court, leave to appeal would never have been granted.
20.	LORD JUSTICE THOMAS:  What is the funding position on this appeal? 
21.	MR LYNN:  The defendant did not have the benefit of a representation order until‑‑ 
22.	LORD JUSTICE THOMAS:  The Crown may wish to apply for costs of course.
23.	MR LYNN:  I did not complete the sentence.  He did not have the benefit of a representation order until he was granted leave. 
24.	LORD JUSTICE THOMAS:  What were the financial provisions?  I do not know if the Crown will apply for costs but we shall certainly consider an application to the Crown.  Is he in employment?
25.	MR LYNN:  He is.
26.	LORD JUSTICE THOMAS:  What are the means on the form?
27.	MR LYNN:  I do not believe a means form was submitted.
28.	LORD JUSTICE THOMAS:  Then obviously we shall have to consider whether he should be made to pay the costs of the appeal and the costs of the Crown.  Have you got costs? 
29.	MR MALLISON:  I have not.
30.	 MR JUSTICE OPENSHAW:  Does he not have to submit a means?
31.	LORD JUSTICE THOMAS:  I thought he had to but these regulations sometimes change.
32.	MR MALLISON:  I do not have a figure to hand and it will depend on the costing of, on this side of the court, the hours done.  Obviously the starting point is the fact that, as I speak, the position is that the appellant has the benefit of legal aid because someone‑‑ 
33.	LORD JUSTICE THOMAS:  He is in remunerative employment.  There is no reason in this case, having brought in the circumstances in which it has, that he should not pay every penny of the costs of the appeal of both sides, subject to his income.  There is no reason why the hard working tax payers of this country should pay a penny towards what has happened here today.
34.	MR MALLISON:  I need to make a phone call.
35.	LORD JUSTICE THOMAS:  Can you take instructions on his income now.
36.	MR LYNN:  I will indeed.  
37.	LORD JUSTICE THOMAS:  We will put this back while we hear the next appeal. If inquires can be made, you can make the enquiry and if we find out what the position is on the representation order, what means he has declared, it shall be convenient to deal with this now if we can.  
(Short Adjournment) 
38.	 
39.	LORD JUSTICE THOMAS:  We understand it may be difficult for us to do this now because there is no statement of means that has been asked.  Could we just enquire what is your client's earnings? 
40.	MR LYNN:  Well, what happened is that he lost his job as a result of this conviction.  He and his wife started a consultancy company.  He withdraws from the company £600 a month as his own remuneration.  Out of that, their rent is £1150 per month.
41.	LORD JUSTICE THOMAS:  He gets £600.
42.	MR LYNN:  But £700 of that they pay from the company because they run the company from their home.  I should add that he has two children, aged 4 and 1, by his wife, and he has a child by another lady, who he is paying 12 per cent of his earnings by way of child support.
43.	LORD JUSTICE THOMAS:  Yes.  What is the bottom line?
44.	MR LYNN:  The bottom line is that he is a man that I guess on the face it has around about, roughly speaking, has £200 or £300 a month disposable income.
45.	LORD JUSTICE THOMAS:  What are the Crown's costs? 
46.	MISS MALLISON:  The figure which includes VAT is £1233.75. 
(The Bench Conferred) 
47.	LORD JUSTICE THOMAS:  I think what we ought to do, which I think it will be academic to do anything other than this, is to order that he pays the Crown's costs in the sum of £1200, at a rate of £100 a month.  That may be‑‑ 
48.	MISS MALLISON:  It did not include their costs.  So, £1200 at the rate of? 
49.	LORD JUSTICE THOMAS:  £100 a month.  That is a year. Well within time.  What he better do, but I imagine that, because of the restrictions on recovering under a defence costs recovery order, that he better file a statement of means, but I suspect there will be nothing further to pay.  I am not saying that.  If there is sufficient means, we would want the matter referred back to us.  This does not concern the Crown, purely with regards the defence.  But I imagine on the figures you have given us, if he can serve a statement of means but I suspect that the recovery of the defence costs will be academic.
50.	MR LYNN:  I will ensure that is done.  Can I ask for two weeks? 
51.	LORD JUSTICE THOMAS:  He needs to state his capital as well.  It looks as if he does not have very much.  There are large exemptions.  So it is unlikely, I suspect, that there is no point in us making an order now you have given us those figures.  I suspect there is nothing further that can happen.  But we cannot do it now, but if it does transpire that he is above the limits, it should be referred back to us to decide what to do.  It does not look as if it will be.  Thank you both very much indeed.