It is not a matter for the court to decide whether photographs are indecent as a matter of law; as long as they are deemed capable of being so, the question of indecency should be left to the jury.
On 1 November 2013 the appellant was convicted of several counts of rape and sexual assault against his two stepdaughters and one count of taking an indecent photograph of a child. The stepdaughters were aged 11-15 at the time of the offences.
The appellant's telephone was seized on arrest; on it were 14 photographs of the complainants, which the Crown alleged were indecent. The Crown sought to adduce them to establish that the appellant took a sexual interest in young girls. The defence applied to exclude 10 of the photographs, on the basis that, among other things, they were incapable of being indecent.
The judge refused the application and admitted the images, on the basis that they were capable of being indecent at the lowest level of the categories identified in Oliver  EWCA Crim 2766.
The appellant argued that the convictions were unsafe on two grounds, one of which was that the judge erred in not excluding the photographs. He stated that they were not indecent per the Oliver categories, and that following the case of Dodd  EWCA Crim 660, this was the scale to be used by the court in determining indecency.
In Dodd, the appellate court had held that it was wrong in law for a jury to receive photographs alongside a schedule which indicated which category on the COPINE scale (created by the COPINE project) they were said to fall into.
The appellant argued that, following Dodd, it is for the court to assess whether the images fall within one or more of the categories that were identified in the case of Oliver.
Held: The comments by Hallett LJ in Dodd were not to be construed as meaning that the categories laid out in Oliver should be used by the court to determine the question of indecency. Dodd is authority for the fact that the Oliver scale should be used by the court for sentencing purposes, not for determining the question of indecency. Providing any scale at all in Dodd had removed from the jury the question of whether they were in fact indecent. This was still a matter to be determined by a jury, in applying the test stated in R v Stamford  2 QB 391 at 398.
The court's responsibility lies simply in determining whether the photographs are capable of being deemed indecent by a jury. Hallet LJ in Dodd is authority that, where that hurdle is surmounted, whether or not they are in fact indecent is a matter for the jury, not the court.
The appeal was dismissed.
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