Kenneth Edward O’Neill and Andrew Michael Joseph Prichodsky Court of Appeal 26th June 1972

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers.  National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on triggers [E] from SurvivorsJustice [F] blog.

Redaction Some reports have had victims names redacted and some assault details redacted. This is a difficult balance-  normally I would think that  I should not “censor” details but on consultation with various people I have taken the decision to redact. This is mainly to protect victims, their friends and relatives from unnecessary detail and to stop the gratification of those who seek salacious details. In addition to the obvious “victims redaction” I have thus “assault redacted” on descriptions of assaults but not on the charges themselves. It appears to make no large difference to the vital information for researchers that these documents contain. That information is mainly names of the perpetrators, past addresses, and the charges they faced – on which newspapers are pathetically inaccurate. If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

For An Index / Timeline of Court Appeal Documents on Cathy Fox Blog [1]

This post is relevant to Paedophilia around Piccadilly Part 4- Playland Trial and Cover Up [2]

[1972] EWCA Crim J0626-5

No. 3971/B/71

No. 3978/B/71

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Monday, 26th June 1972
Before:

Lord Justice Roskill, Mr. Justice Milmo and Mr. Justice Bridge

Regina
v.

Kenneth Edward O’Neill

and

Andrew Michael Joseph Prichodsky

(From the Shorthand Notes of Cherer & Co., 34 Essex Street, Strand, London,
WC2R 3AT. Telephone Number: 01-583 4121. Shorthand Writers to the Court.)

MR. K. McHALE appeared on behalf of the Appellants.

MR. K. RICHARDSON appeared on behalf of the Crown.

JUDGMENT

(Revised)

LORD JUSTICE ROSKILL : These two Appellants, Prichodsky and O’Neill were
granted leave to appeal by the full Court on 2nd March 1972 against
sentences of three years’ imprisonment passed
upon them on 10th August last year at the Central Criminal Court by Judge
Clarke. Each Appellant had pleaded guilty to an offence under section 2
subsection (1) of the Obscene Publications Act 1959 as amended. The
indictment to which these two men pleaded contained two counts: the first
was a count of conspiracy to contravene the provisions of that statute as
amended. To that count these men pleaded not guilty and the charge was not
proceeded with. It was the second count to which they pleaded guilty, and
it is to be observed that the language of the count alleged was that on the
9th day of December 1970 (that date is important, as I will explain in a
moment) within the jurisdiction of the Central Criminal Court they had for
publication for gain a number of obscene photographs. This count charging
each man with a single offence of possession on a single date of the
relevant articles was limited to certain photographs. There was also a
second indictment alleging drug offences which was ordered to remain on the
file marked not to be proceeded with without the leave either of that Court
or of this Court.

When the matter came before the single Judge, leave to appeal was refused.
When it came before the full Court, leave was granted for a number of
reasons which appear in the judgment which I gave on that occasion. This
Court has now had the opportunity of considering the matter fully with the
help of counsel for both the Appellants, Mr. McHale – who appeared for one
of them at the trial – and also of Mr. Richardson who appeared for the
Crown today as he did at the trial. We asked for the assistance of counsel
for the Crown, because the Court was uncertain on the last occasion as it
did nothave any transcript, what had happened and why certain statements
had got into the committal documents which, it seemed at first sight, were
not relevant to the single charge against these men.
The history of the matter requires to be related in chronological order.
Before 9th December – the date I have already mentioned – namely on 14th
October 1970, the police searched a flat, 19 Elm Court, Harrowby Street in
Marylebone, and on that occasion seized a number of films and other
articles. The warrant under which they searched on that occasion was not a
warrant under the Obscene Publications Act 1959, but was, it seems, a
warrant under one of the Drugs statutes. On 9th December 1970 there was a
second search, not at that flat but at another flat at Ealing, which was
occupied by the two Appellants. That search was also not conducted by
virtue of a warrant under the Obscene Publications Act 1959, but under a
warrant which entitled the police to search for allegedly stolen goods.
Further material was then seized. There was a third search on 20th January
1971 to which it is not necessary to allude in detail.

It is right to point out two things. First, there was no charge against
either of these two men in relation to anything which had been found on the
initial search which had taken place at Harrowby Street on 14th October.
The charge related, as I have already pointed out, to photographs found on
9th December 1970 at Ealing. Secondly, there was no charge at any time or
of any description against either of these two men alleging unlawful
homosexual acts by both or either of them with anyone else below the age of
21, whose names have been mentioned in the course of these proceedings.

That being the position, it behoved the learned Judge before whom this
matter came, to examine closely what was the evidence in support of the
single charge to which these two men had pleaded guilty. The matter was
opened fully and clearly by Mr. Richardson for the Crown. When Mr. McHale
was mitigating on behalf of his
then client, who was Prichodsky, the learned Judge, as he was entitled to
do, intervened with a number of questions. When one looks at page 25 of the
transcript, one finds that at D the learned Judge said: “When he was taking
pictures of boys between the ages of 9 and 16, are you saying that your
client did not appreciate that that was a wrong thing to do, that he was
doing it not realising that it was wrong?” to which counsel replied: “My
Lord, I have obviously failed to convey that which I was attempting to
convey. I sought to draw a distinction between the photographs which were
taken at the flat which were intended to be marketed, and those which were
seized at an earlier date, and are, therefore, not eligible for
consideration for the offence which was committed in December. Your
Lordship may think it is undesirable that such photographs should be taken,
but they are not the subject matter of photographs which were in his
possession on the date in question in this charge, for the purpose of
publication”. The learned Judge then went on: “Is this not right: that on
the 8th of December, 9th of December 1970, were not photographs found in
his possession of boys between the ages of 9 and 16, which he had taken
himself?” to which Counsel replied: “Yes, my Lord, there were some such
photographs”. It is right to say that from beginning to end of the case
there was never any evidence that any boy involved was of such tender years
as 9 years of age; one boy was of the age of about 14. The learned Judge
went on: “That is all I am concerned with here. That is what I have to deal
with, and the evidence of the other photographs is evidence which shows
that he has been doing the same thing on previous occasions”, to which
counsel replied “Not marketing”. The learned Judge then said “But having
for the purpose possibly, in the future, of gain, and that is a habit that
he has been doing”.
At pages 27 and 28 the learned Judge again intervened with the same phrase:
“Are you saying that on the evidence here, there being in possession of
your client a number of obscene photographs for publication for gain, I
must limit myself when I deal with the alleged gravity of this offence to
the mere fact that he had those photographs in his possession, and that in
point of fact I must banish from my mind the fact that he and his
companion, for the purpose of getting those photographs, went to the West
End of London and lured boys between the ages of 9 and 16 into his room and
persuaded them eventually to undress and have the photographs taken? Are
you saying I amnot entitled to take that into consideration? It is a simple
question” to which counsel replied “My Lord, it is not as simpleas all
that, because it makes several assumptions of fact which are not right”. At
the bottom of the same page the learned Judge uses the same phrase again,
at G: “This client of yours was in possession of these photographs, and how
they came to be in his possession, whether he bought them from somebody
else, whether he took them himself from boys that he had lured from the
middle of Piccadilly, aged 9 to 16, is of some relevance”. Finally when
passing sentence the learned Judge at page 34 said: “I am satisfied on the
evidence that you went and found those boys, took them to your rooms, and
eventually seduced them into providing you with those photographs. You then
set up an organisation whereby you would market those photographs for
profit. I have been told a lot by counsel about the question of obscenity
and indecency, but the only cliche that comes to mind in this case is that
this is hard core pornography at its worst, coupled with a very strong
element of corruption of youth, in the provision of those photographs for
the purpose of marketing for gain”.
It is right to say that there were in the committal papers a number of
statements of young men who had been allegedly involved in unlawful
homosexual acts with one or other or both of the Appellants. There was also
evidence how at least one if not two boys had been persuaded, to use a
neutral word, to go to the flat where these photographs were taken. It is
also right to say on that material there was evidence on which charges
might have been laid either of indecent assault or procuring acts of gross
indecency or of acts of gross indecency or possibly even of buggery or
attempted buggery. There was also evidence which might have been the
subject of charges of incitement to unlawful homosexual offences. But not a
single charge of that kind was made. Mr. Richardson has given the reason
and one can readily understand the prosecution may have felt that that
evidence though available was not sufficiently reliable to justify the
making of such charges.

But those charges not having been made, it became essential, in the view of
this Court, that the learned Judge should put right out of his mind
anything which suggested that these men had been guilty of any other
offences than the single offence with which they were charged. The language
used by the learned Judge which I have quoted and what he said in passing
sentence suggests to this Court that he did not exclude considerations of
this kind from his mind.

I have mentioned so far only the question of alleged homosexual offences. I
should also again mention the raid on 14th October 1970, when certain
material – I will not use any adjective – was seized and no charge
followed. It has been submitted by Mr. McHale that the learned Judge ought
to have put right out of his mind anything that was obtained by the police
on that earlier date.
In the view of this Court that bald proposition cannot be supported. There
is no doubt that the learned Judge had first of all to have regard to what
was found on 9th December 1970, and Mr. McHale tells us that the plea of
guilty that was tendered to the single charge was intended, to use his
phrase, to be a limited plea only to certain of the photographs that were
seized on that occasion. The charge being limited to certain photographs,
those photographs were the matters presumably to be taken into account. It
seems to be beyond doubt that there was other material which had been
seized on that occasion which was not in the possession of either or both
the Appellants for the purpose of gain.

This Court is not going to say for one moment that in no case can the court
of trial look at what happened before. Every relevant circumstance has
always to be taken intoaccount. We do not propose in this case to embark
upon the somewhat hazardous enterprise of attempting to define precisely
what the relevant circumstances are which can be taken into account in a
case such as the present. Circumstances will always vary between one case
and another. But where the circumstances alleged to be relevant amount in
effect to allegations of other crimes, either crimes of a homosexual
character or of crimes other than possession of the offending photographs
for publication for gain, which have notbeen charged, then clearly the
limit has been overstepped, however widely the limit is defined. That is
what would seem to have happened in this case judging from the language
which the learned Judge used. It seems to this Court that the learned Judge
in passing the maximum sentence in this case clearly took into account
matters which he ought not have taken into account.

It is right to recall what was said recently in this Court by the Lord
Chief Justice, Lord Widgery in giving judgment in the
appeal of * Richard Neville, James Anderson, Felix Dennis and Oz
Publications Ink. Ltd. * . reported in 56 Criminal Appeal Reports 115, at
pages 130 and 131 . The Lord Chief Justice towards the end of the judgment,
when considering the question of sentence, said this: “That means” – by
“That” his Lordship means the result of quashing the convictions on some
counts and allowing the others to stand – “that all we are concerned with
in the end is the proper sentence in the revised situation which now
prevails. The penalty-imposed by the learned trial Judge for count 3 was
six months in the case of each of the individual appellants, and a fine of
£100 for the appellant company. Counsel for the appellants has drawn our
attention to the fact, which is undoubtedly true, that prison sentences for
offences of obscenity have been very rare in the past. What the reason for
this is is something on which we do not wish to speculate, but it is true
that to send a man to prison for offences in this classification has been a
relatively unusual thing in the past. However, those of us who sit
regularly in this court are only too familiar with the fact that when a
particular offence becomes prevalent, and a wave of it appears, the only
course which can be taken is to increase the sentences in order to adjust
for the increase in the incidence of the offence. That is one of our
responsibilities which we must exercise to the best of our ability. We
would therefore like to make it quite clear in general terms that any idea
that an offence under the Obscene Publications Act 1959 does not merit a
prison sentence should be eradicated. There will be many cases in future in
which a prison sentence is appropriate if the court imposing the sentence
thinks fit, and any general impression to the contrary should not be
retained”.

It is right to say that that judgment was given on 5th
November 1971, after the sentences which are now the subject of this appeal
had been passed. This Courtthought it right to say in that case that there
could be offences against the Obscene Publications Act 1959 which merited
prison sentences. In the view of this Court the learned Judge was quite
right in taking the view that the instant case was such a case. It was
without doubt a case in which the Appellarts were quite deliberately
embarking upon a plan which, thanks to the intervention of the police did
not get very far, for providing much obscene material for publication for
gain, though all that they had in their hands for that purpose on 9th
December 1970 was a comparatively small number of photographs together with
a comparatively small amount of photographic reproduction equipment
not itself the subject of any charge.

It is impossible to suggest – indeed I did not understand counsel to suggest
– that a prison sentence was wrong in principle, having regard to the
nature of this case. In the view of each member of this Court the proper
sentence in the present case would have been about eighteen months’
imprisonment. Each Appellant has in fact served the equivalent of such a
sentence or thereabouts. Bearing in mind that the view of this Court is
that eighteen months was a proper sentence in this case, we accordingly
propose to substitute such sentence as will secure their release today.

I have mentioned that all this material was seized under warrants other
than warrants under the Obscene Publications Act. Accordingly the
provisions of that statute in relation to forfeiture of this material do
not apply. But counsel for the Appellants has agreed that the mass of
material which was seized on these various occasions – which the Court is
told amounts to as much as six sacks of material, though it is not
suggested that anything like that quantity was held for gain or publication
for
gain – should be destroyed. One Appellant has asked that certain personal
photographs which are said to be included in this material should be handed
back to him. If this is feasible no doubt it will be done. All these sacks
of material will by-agreement be destroyed.

The appeal will accordingly be allowed to the extent of quashing the three
year sentences and substituting in each case such sentence as will result
in the release of these men today.

Please note that victims of abuse may be triggered by reading this information. The Sanctuary for the Abused [A] has advice on how to prevent triggers.  National Association for People Abused in Childhood [B] has a freephone helpline and has links to local support groups. Other useful sites are One in Four [C] and Havoca [D]. Useful post on triggers [E] from SurvivorsJustice [F] blog.

Links

[1] Cathy Fox Blog 2015 May 8 [constantly updated] An Index / Timeline of Court Appeal Documents on Cathy Fox Blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

[2] 2015 May 6 Cathy Fox blog Paedophilia around Piccadilly Part 4- Playland Trial and Cover Up  https://cathyfox.wordpress.com/2015/05/06/paedophilia-around-piccadilly-part-4-playland-trial-and-cover-up/

[A] Sanctuary for the Abused http://abusesanctuary.blogspot.co.uk/2006/07/for-survivors-coping-with-triggers-if.html

[B] NAPAC http://www.napac.org.uk/

[C] One in Four http://www.oneinfour.org.uk/

[D] Havoca http://www.havoca.org/HAVOCA_home.htm

[E] SurvivorsJustice Triggers post http://survivorsjustice.com/2014/02/26/triggers-what-are-they-and-how-do-we-work-through-them/

[F] SurvivorsJustice Blog http://survivorsjustice.com/

This is all written in good faith but if there is anything that needs to be corrected please email cathyfox@bigfoot.com

cathyfox the truth will out, the truth will shout, the truth will set us free

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the truth will out, the truth will shout, the truth will set us free...
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4 Responses to Kenneth Edward O’Neill and Andrew Michael Joseph Prichodsky Court of Appeal 26th June 1972

  1. Pingback: Timeline of Court and EWCA Documentation on Cathy Fox blog | cathyfox blog

  2. Pingback: Paedophilia around Piccadilly Part 4 Playland Trial and Cover up | cathyfox blog

  3. Pingback: s.8 Sexual Offences Act 1967: Sir Norman Skelhorn’s Consent to Prosecute v. Police Powers of Prosecution | Bits of Books, Mostly Biographies

  4. Pingback: Paedophilia around Piccadilly Part 5 1980s and Operation Circus | cathy fox blog

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