Thomas Victor O’Carroll 2002 Nov 26 Court of Appeal

This is relevant to Tom O’Carroll and imported  indecent images.

Redaction

Some court 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” to protect victims details, there may also be “assault redaction” across most of the spectrum of abuse. The assaults are left in the charges, but mainly redacted when repeated with reference to the individual. I have also redacted unnecessary detail of assaults.

Redaction may obscure sometimes the legal reason for the appeal, but should make no large difference to the vital information for researchers that these documents contain. That vital information is mainly names of the perpetrators, past addresses, institutions where assaults occurred, the actual charges the perpetrators faced, and dates – on which newspapers are pathetically inaccurate and this information enables the links between people and places and abuse at various times to be ascertained.

Some transcripts may have been subject to automatic reading software and whilst effort has been made to correct these, the text should not be regarded as definitive.  Common mistakes in reprinting here are that quotation marks are sometimes not correct, replaced by odd symbols.

If you think that the balance is not correct or that a particular redaction needs reconsideration, please say.

This particular post has not been redacted

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

[2002] EWCA Civ 3190
No: 200204804/Y3

IN THE COURT OF APPEAL CRIMINAL DIVISION

Tuesday, 26th November 2002

Lord justice buxton

Regina

v.

Thomas victor o’carroll

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 K MAIDMENT appeared on behalf of the APPELLANT

JUDGMENT

(As approved by the Court)

26th November 2002

1.MR JUSTICE HOLMAN: This is an appeal against sentence by Thomas O’Carroll, who is aged 57. On 17th July 2002, at the Crown Court at Southwark, he was convicted on three counts of being knowingly concerned in the importation of indecent material. There were four other identical counts in the same indictment relating to similar material upon which the jury were unable to agree on their verdicts and were eventually discharged from reaching a verdict. On the three counts of which he had been convicted,the appellant was sentenced to nine months’ imprisonment on each count concurrent. The short facts wereas follows.

2. On 5th October 2001 a number of boxes, addressed to the appellant, arrived at Heathrow Airport from Qatar. These boxes were opened by Customs officers who found within them, amongst other things, some photograph albums that included within them photographs of young children, newspaper articles about paedophile cases, computer discs and a computer drive.

3. On 18th October 2001 the appellant was arrested and interviewed. He agreed that he himself had sent the boxes from Qatar. He said that in his view the photographs concerned were not indecent. He said that he thought he had himself taken all of the photographs, which had been processed in Qatar. He declined to say where they had actually taken, other than that they were taken in various places which may or may not have been in Qatar. In respect of some of the photographs, he said he did not know the individuals depicted in them. In the end, as we have said, he was prosecuted in relation to the importation of seven specific photographs altogether. As we understand it, the only issue at trial in relation to any specific photograph was whether it was indecent. The jury concluded that three out of the seven photographs were indecent, but, as we have said, were unable,even after several hours of deliberation, to agree on whether the remaining four were indecent.

4. We ourselves have seen copies of all seven photographs concerned. It is not necessary to describe them in any sort of detail. The judge said in the course of his sentencing remarks that:

“in terms of their indecency they are plainly of a relatively low level”a view with which we would concur. None of the photographs show the children concerned engaging in any kind of sexual activity, or being degraded in any way at all. Essentially, these are photographs taken of ordinary children playing or being with adults, probably their parents, on a beach or similar place, and although three of the photographs have the quality of indecency, as the jury found, they are nevertheless photographs of a kind that a parent might take of their own child entirely innocently. As we understand it, the photographs were all taken by the appellant personally, using, presumably, a relatively long distance lens. The appellant was not in any way personally involved with any of the children concerned.

5. It is important to stress, also, that there was no evidence that the appellant had more than one print of any of the photographs; no evidence that he had any intention to distribute the photographs in any way to others; and no evidence that there was any kind of commercial or profit motive in his importation of the photographs. The appellant claimed that they had an artistic quality, but admitted that he himself had a paedophilic interest in the photographs.There was, however, no evidence that he would use them otherwise than privately and for his own personal gratification.

6. There was a pre-sentence report, which had clearly been prepared after particularly thorough investigation by the probation officer and discussion by her with a number of colleagues,including those specialist in the field of sexual offending.In her report the probation officer reported that:”The defendant has asserted from the outset that the photographs are artistic, not indecent. He tells me that he has been a keen photographer since the mid-1980s, interested in a wide range of subjects, some photographs of which he has used in his work as a journalist and examples of which he brought to our interview. Whilst not departing from his views about the artistic merit of the photographs, Mr O’Carroll did admit that he found them to be erotic. He tells me that his sexual preference is for pre-pubescent children.”

7. This interview with the probation officer took place after the trial, during which the judge had apparently made some comments about the intrusiveness to parents, as well as children, of taking photographs of this kind in the way that we have described. The probation officer reported that as a result of the trial and those comments:

” he is clearly accepting that whilst the content of the pictures might be likened to many taken of children by their friends or family, the context in which he took these was not acceptable. They provided him with sexual gratification and were taken with this in mind. He then knowingly placed them in his luggage accepting that they might be classified as indecent by others. He accepts that he is culpable in these respects and knows that he will be punished.”

8. It appears that the appellant has been interested for many years in the subject of paedophilia, although we should stress that there is no evidence of him having engaged in illegal activities upon any child. The probation officer reported that:

“Mr O’Carroll describes himself as a paedophile and defines this as a person whose sexual preference is for children. Mr Carroll has clear views about paedophilia which his high profile in Paedophilia Information Exchange has meant are well-known He has written a book about paedophilia in respect of which he has provided me with reviews, all three of which are positive.

It appears that Mr O’Carroll’s views in relation to paedophilia have, in his eyes, been legitimised by the academics’ interest in his writing. He is clearly an intelligent man who is extremely well informed upon the subject and whose response to it is highly cerebral though clearly couched in emotion. He agrees that the photographs that are the subject of these proceedings did provide him with sexual stimulation.

Mr O’Carroll’s philosophy, expressed on [a website] is essentially that the innocence of children is a myth and that they are overprotected by society. He believes that children are sexual beings but that because society wishes to maintain the image of innocence adults have to be punished. The propagation of this view must be considered a high risk factor both in terms of the likelihood of reoffending and of protection of the public.

9. The appellant had one previous conviction in 1981 for conspiracy to corrupt public morals for which he was imprisoned for two years.

10. Thus that was the background against which the judge came to pass sentence on 9th August 2002.

11. In the course of his sentencing remarks, which he clearly formulated with considerable thoughtfulness and care, the judge said:

“As to the photographs themselves, the following matters will be taken into account in your favour: first, that in terms of their indecency, they are plainly of a relatively low level. These photographs were almost certainly taken on beaches of small children, two were ofthe same child who was being dressed, or undressed, apparently by his mother, the other was of a very young child who was sitting naked astride a man, presumably his father. I have no doubt that no one was aware that your camera lens was trained upon these children, let alone having the slightest idea why.

In the second place, you have been convicted of only three photographs and there is no evidence of commercial exploitation. Third, there is no evidence of corruption of these children.

Onthe other hand, you took these photographs and that was because,as you accepted, you find them erotic and they were taken for your own sexual gratification. Also, this was a contested case.

Indecent though these images may be, I do not believe that, seen in isolation, they would be regarded as especially sinister. They do however become much more sinister when seen against your background and your long standing and present interest in, and it may be said, even obsession with, paedophilia, and that brings me to by far the most difficult aspect of this case.”

12. The judge then went on to recite much of the background history and circumstances of the appellant that had been described in the pre-sentence report, some of which we ourselves have quoted.

13. At the end of that passage the judge then said:”I wish to make it clear that I do not sentence you for your campaigning activities or for your controversial views, however distasteful they may be to most people. You are not charged with any offence in connection with them. I must sentence you for these specific offences of which you have been convicted against the background of your attitude to these offences and the likelihood of your reoffending.”

14. He then said that he considered that only a custodial sentence was justified, but that he had carefully considered whether he might suspend any such sentence, but he then said:” after much thought, I have come to the conclusion that it is essential that the court should mark the disapproval of offences such as these by a man with your background with an immediate sentence so that no one may be left in doubt as to the seriousness of a paedophile importing indecent images of children into this country.”

He then passed, as we have said, a total term of nine months’ imprisonment.

15. Our attention has been drawn today to certain reported decisions of this Court, which, as appears from the outset of his sentencing remarks, were also drawn to the attention of the judge. The most recent of those authorities in date is that of Martin Charles Toomer and others [2001] 2 Cr App R(S) 30. That case concerned the downloading and dissemination through the internet of indecent photographs of children. We think that it is only of tangential relevance to the situation in the present case. There is no doubt that the dissemination of indecent or pornographic images of children on the internet is a very serious modern scourge, but it involves issues quite different from the importation into England of three prints by this appellant for his own personal use.

16. More directly in point are two earlier authorities. The first is Robert Littleford (1984) 6 Cr App R(S) 272. In that case a man had ordered an obscene video tape from abroad and later exchanged it for a similar video with another person with similar interests. The appellant in that case pleaded guilty and was sentenced to a total of three months’ imprisonment. The video in question apparently included scenes depicting children and adults in sex scenes, which clearly is much more grave than the photographs in the present case. On appeal to this Court, the Court held that it had been inappropriate to pass a custodial sentence at all and that the appropriate sentence would have been financial penalties. However, in view of the fact that that appellant had by then spent a time in custody, the Court substituted a term of imprisonment that had the effect of bringing about his immediate release. They did not, in the circumstances, impose an additional or alternative sentence of a fine.

17. The other authority was Howard Holt [1995] 16 Cr App R(S) 510. In that case the appellant had imported magazines depicting naked children, some of whom were described as being shown in a sexual and seductive manner.

In that case the appellant had pleaded not guilty and after conviction was sentenced to two months’ imprisonment. Again, on appeal, this Court considered that a custodial sentence should not have been passed at all. They quashed that sentence and substituted for it a fine of £500.

18.In our judgment, and with respect to him, the learned judge in the present case allowed himself to be deflected from the guidance given by those authorities. Although he said that he wished to make it clear that he was not sentencing this appellant for his campaigning activities, or his controversial views, we have come to the conclusion that, in the end, the judge was over-influenced by those activities and views of the appellant and lost sight of the actual offences for which he was sentencing him. The offences were no less, but no more, than bringing into this country the three photographs that we have described for the specific and limited purposes that we have described. It is true that theappellant pleaded not guilty, but he did so only to invite the view of a jury on the question of decency or indecency; and indeed, as we have said, in relation to four out of the seven photographs the jury were discharged from giving a verdict.

19. We do not minimise the seriousness of importing indecent material into this country, and we wish to stress that nothing that we are saying in this judgment has any bearing on cases involving the internet, or cases depicting any kind of sexual activity upon, or degrading of, children. But, in the particular circumstances of this case, we are satisfied that the sentences passed by the judge were manifestly excessive. In our view, these particular offences did not pass the custody threshold and did not justify or require sentences of imprisonment at all. Accordingly, the sentences that were passed by the judge will be quashed.

20. We have given careful consideration to whether we should substitute alternative sentences of a fine, or fines, as was done in the case of Howard Holt. However, the fact is that this appellant has now been inprison for approximately three and a half months, and, in our judgment,it would be quite wrong now to impose any alternative sentence. Accordingly, these appeals will be allowed and the sentences of imprisonment will be quashed with no alternative sentence.

21. At the end of his sentencing remarks, the judge referred to the fact that the appellant would be subject to the  notification requirements of the Sex Offenders Act 1997. As the custodial sentences have now been quashed, it  follows that the applicable period for which this appellant is now subject to the notification requirements under the  Sex Offenders Act 1997 is a period of 5 years beginning with the date of his conviction.

22.LORD JUSTICE BUXTON: The appeal is therefore allowed. The sentence on Mr O’Carroll is quashed. No otherorder is made. Mr O’Carroll is discharged. If he will be good enough to go downstairs, he will be released from there.

Index of Newspaper and Journal articles on this blog [1]

Index of Court Appeals on this blog [2]

Please note that victims of abuse may be triggered by reading this information. These links are generally UK based.

  • 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.
  • Jim Hoppers pages on Mindfulness [G]  and Meditation [H] may be useful.
  • Hwaairfan blog An Indigenous Australian Approach to Healing Trauma  [J]
  • Survivors UK for victims and survivors of male rape or the sexual abuse of men [K]
  • Voicing CSA group [L] helps arrange survivors meetings in your area
  • A Prescription for me blog Various emotional support links [M]
  • ShatterBoys -“Male Survivors Of Childhood Sexual Abuse Inspiring change, Through Shared Experience Whilst Building Connections…Together We Can Heal” [N]

Links

[1] Index of Newspaper and Journal articles on this blog https://cathyfox.wordpress.com/2015/05/23/newspaper-stories-index-timeline/

[2] Index of Court Appeals EWCA on this blog https://cathyfox.wordpress.com/2015/05/08/a-timeline-of-court-and-ewca-documentation-on-cathy-fox-blog/

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

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About cathy fox blog on Child Abuse

the truth will out, the truth will shout, the truth will set us free...
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One Response to Thomas Victor O’Carroll 2002 Nov 26 Court of Appeal

  1. Pingback: An Index and Timeline of Court & Court of Appeal Documents on Cathy Fox Blog | cathy fox blog

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