Oliver v R.

At the conclusion of the hearing before us, we announced that the appeal would be dismissed, and we now give our reasons.

On 30 July 2012 at the Crown Court at Chester, on the day fixed for trial, the appellant, Paul Oliver, now aged 53, changed his plea to one of guilty to the 16 counts on the indictment. Those were one count of possession of indecent photographs of children (count 1: Criminal Justice Act 1988, section 160(1)), and fifteen counts of making indecent photographs of a child (counts 2 to 16: section 1(1)(a) of the Protection of Children Act 1978). He was sentenced on the same day to a community order on each count concurrent, with a requirement that he undertake 120 hours of unpaid work by 29 July 2013.

His appeal against conviction, mounted on his behalf by a fresh legal team who did not represent him at trial, was made with the leave of the single judge, who granted him the necessary extension of time of 2 years, 3 months and 13 days to do so. The appellant also applied to adduce fresh evidence in support of the appeal pursuant to section 23 of the Criminal Appeal Act 1968, an application which the single judge referred to the full court.

In our view, the appellant fails by some considerable margin to establish either that there was any irregularity in relation to his plea, let alone one that so influenced the decision to plead guilty so as to render it a nullity.

As this court said in R v McCarthy[2015] EWCA Crim 1185 there are essentially two principles which govern whether this Court will take the exceptional course of intervening after a defendant pleads guilty and then attempts to appeal his conviction. First, if a defendant has been deprived of a defence which would probably have succeeded: see R v Boal[1992] 95 Cr App R 272. Secondly, if a defendant’s freedom of choice in respect of his plea has been improperly narrowed in the sense described in R v Nightingale [EWCA] Crim 405; [2013] 2 Cr. App. R. 7. There it was said that a defendant charged with an offence is personally responsible for entering his plea; and he must be free to choose whether to plead guilty or not guilty. However, this principle does not mean that a defendant must be free from the inevitable pressure of the circumstances in which he is forced to make his choice, nor is it undermined by the provision of forthright advice by his lawyers about the prospects of successfully contesting the charge, or the implications for sentence if that contest is unsuccessful – advice after all, which an advocate is under a duty to give: see Nightingale at paras 10 to 12, and 16.

The appeal had as its original focus two points: first, that the appellant was “effectively robbed” of his freedom of choice by his own legal team because they failed to disclose to him some relevant expert evidence, namely, an agreed expert report; and secondly, that his former counsel put pressure on him to plead guilty.

The premise of the first ground (which is what persuaded the single judge to give leave) is flawed. The true position was that there was no such agreed report: merely a draft, prepared by the appellant’s expert, Mr Duncan Campbell which the Crown’s expert, Detective Constable Gary Brookes (with good reason in our judgment) had refused to agree. The secondary position then adopted – in what proved to be an evolving case mounted on the appellant’s behalf - was that the appellant was not shown some new evidence produced on the first day of the trial before the case was called on; and was improperly prevented from receiving advice on it from Mr Campbell. This point proved to have no more merit than the first iteration of the appellant’s case. On analysis, it emerged that this new material was simply reconstruction booklets for the assistance of the jury, showing step by step how the images already relied on would have appeared on the screen – that is, putting the evidence already relied on into a form which made it more readily comprehensible to the jury.

As for the second limb of the appeal, we are in no doubt that the appellant received full and careful advice from his former counsel, Mr Knowles, and the suggestion he had been improperly pressured into pleading guilty, or was somehow disadvantaged in relation to the assistance Mr Campbell could give, is not remotely arguable.

In short, we are satisfied there are no grounds for interfering with the appellant’s conviction: the case against him was overwhelming; he was properly advised throughout, and we do not consider either the lengthy extension of time or leave to appeal would have been given had the facts put before us, been put before the single judge.

Before addressing the appeal in more detail, we would wish to highlight the following points. Fresh counsel’s advice of 14 November 2014, which accompanied the application for permission to appeal, was drafted without consulting the appellant’s former legal team, without sight of the relevant file notes, and before the appellant had waived privilege.

This was contrary to the procedure identified in R v Achogbuo[2014] EWCA Crim 567 (LCJ, Royce J. and HHJ Tonking); and R v McCook[2014] EWCA Crim 734 (LCJ, PQBD and VPCACD). In McCook, the Lord Chief Justice emphasised that in any case where fresh representatives were instructed it would henceforth be necessary for them to liaise with the trial representatives to ensure that the facts were correct, unless there were in exceptional circumstances, good and compelling reasons not to do so. It was contemplated that such circumstances would be very rare.

There were no good or compelling reasons not to do so in this case. There was no difficulty in obtaining the solicitors’ file. We were shown a receipt which demonstrated the file had been received by the appellant’s new team on 8 November 2014 (and confirmation that no papers would be retained by his former solicitors); and there was no suggestion that it was not sent as soon as it was asked for. We have no doubt either that if Mr Knowles had been asked to comment in the more than 2 years that elapsed between the date of the conviction, and the date when the application for permission was made, he would have responded.

The views of the appellant, his wife, a friend and Mr Campbell, were obtained before the advice on the appeal was given. These were not, however, an appropriate substitute for the views of the appellant’s former legal team, nor did they provide an appropriate platform for the criticisms subsequently made of them. On their own, they did not provide an adequate factual basis for a proper and objective analysis of what had occurred.

In the event, privilege was waived on 24 December 2014; Mr Knowles made an initial statement on 15 February 2015, and this was commented on in supplemental representations made on the appellant’s behalf on 16 March 2015. In our view however, neither the Crown nor Mr Knowles were given a proper opportunity to respond fully to the grounds of the appeal (evolving as they were) until after the single judge had given leave on 20 May 2015, and in consequence, this appeal was mounted on an incorrect factual basis.

The appellant worked as a community psychiatric nurse. Part of his work for a Master’s Degree involved research into various psychiatric conditions, specifically, childhood anxiety and depression, research he carried out on the internet.

On 14 May 2009 police officers went to his home address in Macclesfield, and arrested him on suspicion of possessing and making indecent images of children. Officers seized computer equipment from the house, including an external hard drive, CRP8, and a PC base unit (CRP1/2) in a downstairs computer room; another base unit (CRP14) in the loft and an Acer laptop computer (MER/3) in the boot of his car. The Acer laptop was the most recent acquisition. Specialist forensic officers examined the hard drives to ascertain what internet activity had taken place, and what had been downloaded. The examination focused in particular on the appellant’s use of the internet on the 7 and 8 May 2009.

The computer equipment from the appellant’s computer room and car was found to contain digitally stored indecent images of children. The prosecution case was that were a total of 370 images ranging from level 1 to level 5 on the ‘Copine’ scale (see R v Oliver [2003] CA 28). The PC base unit contained 142 images; the base unit in the loft contained 174 images and the laptop contained 55 images. The appellant’s eventual plea was confined to the images found on the laptop.

The prosecution alleged that on the 7 and 8 May 2009, the appellant had downloaded sexual images of children, whilst simultaneously searching on work related subjects such as childhood social anxiety order. Searching the internet provided the appellant with a variety of sexual imagery. It was accepted that some was undoubtedly of an adult and legal nature, but there was a noticeable amount of material obtained that involved children and was therefore indecent and unlawful.

These images were photographs of young girls variously in stages of undress exposing their genitalia, in wholly inappropriate sexually provocative poses, and involved in sexual activity.

Further from 2005 to 2009, forensic analysis of the computers showed the appellant had a clear and regular pattern of accessing a large number of teen porn websites that contained indecent images of children. The prosecution asserted that the appellant actively searched the internet on a regular and repeated basis for such material, using the names of pornographic websites such as “natural angels” and “blue teen links”.

Websites such as “little-girl.preteen”, “angels.net”, “amazing-pre-teens”, “lolitaworld.biz”, “preteen-paradise.com” and “tightamateurteens” amongst many others, were accessed by the user “Paul” on numerous occasions. It was alleged that the appellant returned to many websites over this prolonged period of time and took advantage of the “favourites” facility on his internet browser to provide swift and easy access to such material.

In addition to certain specimen images, by the time of the appellant’s guilty pleas, the prosecution produced screenshots from relevant web pages to show the representative content of certain sites, their layout and the type of content they offered when the appellant would have viewed them.

The forensic analysis also showed that the appellant had frequently employed specialist file wiping software to destroy thousands of files. It was established for example that he had run such software in the early hours of the day of his arrest. It was reasonable to infer from the use of such software, so it was said, that the appellant was anxious about his use and possession of such indecent material, and had acted to destroy the evidence of it; to a great extent in that respect he was successful.

The appellant was interviewed by police on two occasions: on the day of his arrest in May 2009, and following the forensic examination of his computer equipment in September 2010. He consistently denied any sexual interest in children. He admitted drinking large quantities of whisky every night when using his computer and “probably” accessing adult pornography at the same time as he conducted academic research. He denied knowingly accessing any indecent images of children. He said that “dodgy” sites had popped up since 2005, and that he had had problems with computer viruses. In his defence case statement, the issue raised was lack of intent. The appellant maintained the account he had given in interview, that he had had difficulties with “viruses and ‘trojans’ infecting his computer” and said he had never deliberately logged onto a website containing indecent images.

The prosecution relied in support of its case on a report dated 19 November 2010 produced by DC Brookes, who is a computer forensic investigator, with an expertise in all aspects of computer crime investigation, including the forensic retrieval of computer evidence. In May 2011, the defence instructed Mr Campbell, an expert on electronics, computers and telecommunications. He produced a report dated 21 October 2011 to which DC Brookes replied in a further report dated 22 December 2011. Thereafter, notwithstanding appropriate directions and encouragement given by the court, it did not prove possible for a joint expert report to be produced.

Partly because of the problems with expert evidence, the case took a considerable time to come on for trial. It is necessary to make some reference to the chronology, including to the dates of the conferences that took place with Mr Knowles, during the material period.

On 17 March 2011, the appellant had his first conference with Mr Knowles. The PCMH took place on 22 March 2011. The appellant pleaded not guilty to all counts. The trial date was fixed for the 24 August 2011. On the 20 July 2011, the fixture was broken, as Mr Campbell had not yet had access to the hard drives he wanted to examine, and his report was therefore not ready.On 24 August 2011, the matter was mentioned. On 3 November 2011, the appellant had his second conference with Mr Knowles. He was given a copy of Mr Campbell’s first report, and the contents of it were discussed.

On 6 January 2012, the appellant saw his solicitors, and notes he had made on the report of DC Brookes were forwarded to Mr Knowles and Mr Campbell.On 13 January 2012, a pre-trial review was held. Directions were made that a joint expert report should be prepared by 3 February 2012, and for a further pre-trial review on 10 February 2012. The judge said he wanted the experts to prepare a simple joint report that he and the jury would find easy to understand, setting out a statement of the issues in the case.

The experts could not agree however on the content of a joint report, and one was not produced either by the date directed by the judge or subsequently. Though the court had made it clear on 6 January 2012, that what was required was a simple joint report that the judge and the jury would find easy to understand, the draft produced by Mr Campbell, which was about 50 pages long, did not fulfil any of those criteria. It is plain from an email of 7 February 2012 to DC Brookes, that Mr Campbell thought he understood what the court had asked for. Unfortunately, it is equally plain from the draft he produced that he did not. Had this matter gone to trial, in our opinion the draft, which was complicated as well as lengthy, and which failed to boil down the issues in a suitable or comprehensible way, would have been of little assistance to the judge, let alone the jury.

We are bound to raise this further concern. It has been well-recognised for many years that in the criminal jurisdiction, just as in civil litigation, it is central to the role of the expert, that he or she should provide independent, objective, unbiased opinion evidence in relation to matters within his or her expertise; and that he or she should never assume the role of advocate: see R v Harris & ors [2005] EWCA Crim 1980 at para 271 et seq., amongst many other cases. These duties and obligations are now reflected and reinforced by the Criminal Procedure Rules, Part 19, in particular, para 19.2 which sets out the expert’s duties to the court, including in unambiguous terms, the particular duties we have mentioned.

Mr Campbell’s report of 21 October 2011 did not in our judgment confine itself, as it should have done, to matters within the proper purview of his expertise; in parts, it seemed to argue the appellant’s case and “descend into the arena”. Mr Campbell commented on the legal merits or otherwise, as he perceived them to be, of the case against the appellant. He said for example, that in his opinion the Crown’s case did not meet the burden of proof in relation to the counts on the Indictment; he said there was “no evidence” on the issue of possession; he said that one image was not indecent or unlawful in his understanding and experience and he said that “although it is not an area on which expert evidence can be given” he “would describe most of the images in Counts 3-16 as marginal in terms of lawful/unlawful age”. Mr Knowles said in evidence before us, that it was his clear recollection that the late Recorder of Chester expressed his concern about the fact that Mr Campbell’s report was straying into matters outside his area of expertise. Although Mr Knowles was challenged about this, it would have been surprising if that very experienced judge had not been just as concerned about that matter, as we are.

Moreover, though Mr Campbell gave his opinion on matters of law that were not for him, he declined to give his opinion on some of the forensic findings made by DC Brookes, on the ground that these findings were not relevant. Whether evidence is relevant to a charge however is a matter for the court, not the expert. And the evidence on which Mr Campbell declined to comment was relevant. This concerned the searches conducted in 2008 and 2009, and the fact, as the prosecution alleged it to be, that certain websites had been saved by the appellant as favourites, namely “Blue Teen” and “Natural Angels”: see para 46 below. This failure to deal with evidence, which if true, was potentially disadvantageous to the appellant’s case, served to reinforce the unfortunate impression given that the report, and therefore its author, was not objective.

On the 10 February 2012, the further pre-trial review took place. The court log records, as was the fact, that the defence had had all morning to speak to their client. This was the appellant’s third conference with Mr Knowles. It lasted for one and a half hours. By then, as we have said, Mr Campbell had produced his proposed draft joint report and DC Brookes had refused to agree it. The appellant was told that there was no joint report and that Mr Campbell now said there was no Malware on the laptop. Mr Knowles made it clear to the appellant that in his view, this caused significant problems for the defence.

Mr Knowles and his solicitor took the opportunity provided by the presence of all at court to meet the prosecution team (including Mr Brookes, and the Crown Advocate, Mr Martin McRobb) to see whether the problem that had arisen in relation to the joint report could be resolved. In the event, agreement was reached that the prosecution would bring the laptop to Mr Knowles’ chambers so the appellant and his lawyers could actually see on the laptop itself, the relevant images and screenshots the prosecution relied on. It was also agreed (as some form of short-circuit we presume) that counsel would produce a list of agreed issues for the trial. This sensible approach was approved by the judge: when the parties appeared before him after their discussion, the judge said in terms that he wanted a series of questions for the jury to concentrate on. He also said he would make no further order in relation to the production of a joint report. The trial date was re-fixed for the 12 March 2012, with yet another mention on 5 March 2012.

On the 23 February 2012, Mr Robson and DC Brookes with DC Hill (the officer in the case) brought the laptop to Mr Knowles’ chambers as had been agreed. Mr Knowles, his solicitor and the appellant were present at the conference; Mr Campbell was not. This was the appellant’s fourth conference with Mr Knowles. The appellant was shown the images and screenshots found on the laptop, and the images from the main computers as well. The prosecution team withdrew, and Mr Knowles then repeated the concerns he had already expressed, about the difficulty the lack of Malware on the laptop would cause to the appellant’s defence. Mr Knowles made essentially the same points on the 29 February 2012, at the appellant’s fifth conference.

On the 5March 2012, the trial date was vacated as there was insufficient time, and the trial was adjourned to the 30 July 2012. On the 16 July 2012, the appellant had his sixth conference with Mr Knowles.

On 30 July 2012, the day fixed for trial, at 10.42, Mr Knowles asked for more time, which ‘could shorten the trial significantly’. The court was told the experts needed to talk to each other and the defence needed to take instructions.

The issues were explained to the judge in chambers, and the defence asked for more time to view booklets of images. The judge said: “if the position is that he was accessing primarily teenage sites but in the course of doing this, but not as a principal motive, he would still be guilty of an offence. This would however be a strong mitigating factor as it would be a by-product of accessing adult porn”.

There was then a break in proceedings of some two hours, until 12.37. The defence then requested a ‘Goodyear indication’ of the sentence the appellant might receive if he pleaded guilty “on the basis that he possessed 55 images and accepted illegal images were downloaded, but his aim was to download lawful images”. The request was given in the presence of the appellant (without demur from him), and must therefore have been on his instructions.

The judge indicated that sentence would not be one of immediate custody. The judge repeated his view that a mitigating feature was that the appellant’s objective was not to download illegal images (a generous view so it seems to us, in the light of the evidence of the search terms). The appellant was immediately re-arraigned and pleaded guilty. It follows from this sequence of events, that he had already given instructions that he would plead guilty provided he received a favourable indication as to sentence. There was a further break so the appellant could see a probation officer and the appellant was sentenced when the hearing resumed, at 14.42.

It is apparent to us that throughout this period, the appellant received full and careful advice, and that nothing that was material was kept from him.

Mr Knowles’ advice to the appellant in summary was that on the evidence produced by the prosecution, he was likely to be convicted, and would go to prison on the charges he faced. This advice was entirely justified by the facts; and there was no suggestion to the contrary during the hearing before us. Mr Forte for the appellant, accepted there was nothing inaccurate or inappropriate in the advice the appellant was given. The highpoint of his submissions was that the advice given by Mr Knowles was “over the top”. We do not agree.

The appellant’s defence hinged principally, as we have said, on the proposition that the images found could be explained by Malware, which had infected his computer when he was accessing adult pornography. However, once Mr Campbell acknowledged there was no Malware on the laptop, as he did by the time he produced the proposed joint report in February 2012, the appellant’s defence was obviously in difficulties, and Mr Knowles was right to say so. Mr Knowles was also right to point out in the run-up to the trial, that given the absence of Malware on the laptop, the jury would be unlikely to believe the appellant’s explanations for the presence of the indecent images on his other devices, a problem reinforced by the fact (as it was) that the appellant had kept returning (for years) to the sites which purportedly caused the Malware and therefore the indecent images of children to appear on his computer(s) – as he well knew.

It was entirely appropriate for Mr Knowles to then raise the possibility – as he did with the appellant well before the trial - that the prosecution might agree to accept a plea in relation to the images on the laptop alone; and it was his duty to warn the appellant of the risk that he would go to prison if convicted on all counts. Mr Knowles said in terms however when giving this advice, as he did in February 2012, that the decision as to the plea, was a matter for the appellant.

The real problem in this case, so it seems to us, was the appellant’s reluctance to face up (either before his plea or subsequently) to what he had done. The appellant’s apparent perception in his witness statement prepared for this appeal, and in the limited evidence we heard from him de bene esse, is either deliberately dishonest or so wholly lacking in objectivity as to lack any weight. His purported belief that the evidence of Mr Campbell could help him, and that he was disadvantaged by not having seen the presentation which was produced on the day fixed for his trial, bears no relation to the true strength of the case against him and distorts the true importance of those factors. We do not consider that his account of the events which led to his pleading guilty, and of his reasons for doing so, is reliable.

As to the merits, the following aspects of the case made against him should be noted:

the names and nature of the content of the websites searched for in 2008 and 2009 (including “younglittlegirlies”; “hotlittlecuties”; “allyoungvideos”; “amazing-preteens”; “amourxxxangels”; “daddies-dream” and “fuckmyteenhole”) indicated an obvious interest on the part of the searcher in indecent images of children. This was relevant to the prosecution’s primary case. It was also relevant to rebut the defence explanation for the presence of such images on the appellant’s computers, and his denial of any interest in such images.

One of the websites, “cutie.artmodelingstudios” was a child modelling site featuring a very young girl. Although the webpage provided a small number of images, an examination of the internet history showed that a large number of images had been downloaded from the site; and that on the 20 September 2008, the user “Paul”, whilst visiting the site had manually selected to view the portfolio section of the site, which provided access to a large number of images depicting the young girl posing, often in a provocative position with her genital area clearly on view.

The evidence that “Paul” was the appellant was exceptionally strong. As DC Brookes pointed out (i) there were four accounts, each of which bore the name of a member of the appellant’s family: “Paul”, the name of his wife and the names of their two children; (ii) the wiping software was only ever used by “Paul”; (iii) the only account that was password protected, was that of “Paul” and (iv) it was “Paul” (and only “Paul”) who accessed the pornographic websites during browsing sessions when internet research was carried out into matters relevant to the appellant’s academic researches.

Thus, when searches were carried out on the 4 May 2009 using the search terms “Blue Teen Links” and “Natural Angels” a document called “Activity and Mood Monitoring Chart” was opened, and viewed on “Google Book”. Further “Paul” bookmarked both those sites, or saved them as “favourites”, to the PC Base Unit (CRP1/2) on 9 and 13 May 2009, and separately to the external hard drive, CRP8 in a folder called “Paul”, created on 12 May 2009. When webpages contained within those shortcuts - one containing the word “Blue-teen” and one containing the words “topsites” and “Natural angels” - were examined, each contained images depicting the sexual abuse of teenagers and children.

In our view, the perception of Mr McRobb, is telling. In a statement dated 15 January 2015 he said this;

Mr McRobb’s view of Mr Knowles, accords with our own. Having regard to the nature of the complaints made in the grounds of appeal, we received evidence from him. We found him to be a measured and careful witness, and in our view he approached this case with commendable care. We accept his evidence; and we reject the suggestion (albeit not made directly to him) that Mr Knowles somehow bullied the appellant into pleading guilty.

We have already referred to the relevant principles as articulated in Nightingale: “Such forensic pressures and clear and unequivocal advice from his lawyers do not deprive the defendant of his freedom to choose whether to plead guilty or not guilty; rather, the provision of realistic advice about his prospects helps to inform his choice”: Nightingale at para 12.

In our judgment this was precisely the position here. Some complaint is made that Mr Campbell was excluded from the conference that Mr Knowles had with the appellant at court. However, Mr Knowles had a duty, as counsel in the case to advise the appellant; and he was quite entitled to talk privately to him in order to do so, in particular if there was a risk that Mr Campbell’s apparent enthusiasm for the case, and his “undue regard for certain elements of it” as Mr Knowles put it, would interfere with the resolution of the case in the appellant’s best interests.

The appellant has now fastened on the question whether or not the draft report was actually shown or sent to the him. However, this issue seems to us to be a red herring: as we have said, the substance of it was discussed with him many months before his plea. There was moreover nothing in the draft which exculpated him or materially advanced his defence, or which could have had any reasonable bearing on his decision about his plea.

The case now made, that there was purportedly new material produced on the first day of the trial but withheld from the appellant is another red herring. There was nothing new. Merely, as we have said, a more coherent presentation of the images the appellant had already seen, which harmed rather than helped his case, for the reasons given by Mr McRobb, and because it showed – as Mr Campbell accepts, that the appellant had deliberately ‘clicked’ and navigated to an indecent image. Against this background, the complaint now made that the appellant was somehow “prevented” from discussing new matters that were material or potentially helpful with Mr Campbell on the day of the trial, is in our judgment based on a false premise, and goes nowhere.

The appellant may have regretted pleading guilty after the event, but that was nothing to the point. His decision was not improperly circumscribed by the advice he was given, or the manner in which it was given, whether forthright or not. On the contrary. Mr Knowles’ advice, and the basis of plea, served the appellant well, as is clear from the judge’s sentencing remarks and the level of penalty imposed for the offences to which he pleaded guilty.