Case of European Court of Human Rights, March 15, 2005 (case O'CARROLL v. THE UNITED KINGDOM)

President:Mr J. Casadevall
Defense:the United Kingdom
Resolution Date:March 15, 2005




Application no. 35557/03

by Thomas Victor O'CARROLL

against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 15†March 2005 as a Chamber composed of:

Mr J. Casadevall, President,

Sir Nicolas Bratza,

Mr G. Bonello,

Mr R. Maruste,

Mr S. Pavlovschi,

Mr L. Garlicki,

Mr J. Borrego Borrego, judges,

and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 30 October 2003,

Having deliberated, decides as follows:


The applicant, Mr Thomas Victor O'Carroll, is a United Kingdom national, who was born in 1945 and lives in Shildon.

A.††The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was convicted at the Southwark Crown Court on 17 July 2002 of three counts of being knowingly concerned in evading the prohibition on the importation of indecent material contrary to Section 170(2)(b) of the Customs and Excise Management Act 1979. Each count related to a photograph in an album which had been part of a consignment from Qatar addressed to the applicant in the United Kingdom. The applicant had signed a form declaring that he was not bringing in prohibited material in that way. Each photograph was of a young naked child, engaging in normal outdoor activity such as playing on a beach. The questions put to the jury in respect of each count were:

'Considering each count separately, has the prosecution made you sure that:

  1. On 5 October 2001 the defendant knowingly brought into this country the photograph of the child that is the subject of the count'

  2. The child is under 14 years of age'

  3. The photograph is indecent'

    [A photograph is indecent if in your judgment in offends against recognised standards of propriety]

  4. The defendant deliberately failed to disclose his possession of the photograph because he believed that it was or might be indecent'

    If the answers to all four questions are YES, the defendant is GUILTY. If the answer to any of the above questions is NO, the defendant is NOT GUILTY.'

    The applicant was sentenced to nine months' imprisonment on 9 August 2002. On 11 October 2002 a single judge granted leave to appeal against sentence as it was arguable that the sentence was too long. Leave to appeal against conviction was refused, the judge considering that the trial judge's direction to the jury had been entirely satisfactory, and that the offence was sufficiently precisely defined so as to comply with the Article 7 of the Convention. In this latter respect he referred to M¸ller and Others v. Switzerland (judgment of 24 May 1988, Series A no. 133) and the domestic decision of R. v. Perrin ([2002] EWCA Crim 747).

    The applicant's appeal against sentence was allowed by the Court of Appeal on 26 November 2002. No alternative sentence was passed, although the applicant was still required to register as a sex offender under the Sex Offences Act 1997.

    A renewed application for leave to appeal against conviction was dismissed by the Court of Appeal on 29 July 2003. The Court of Appeal noted that:

    'whereas counsel's advice and grounds of appeal are set out in fourteen paragraphs over five pages, those arguments put forward by the applicant himself extend to 94 paragraphs over 27 pages. He is a dedicated enthusiastic and well-researched apologist for what he sees as innocent and non-exploitative pleasure in viewing photographs of juvenile nakedness. He raises many philosophical, social and artistic arguments about that which we regard as irrelevant to the two legal questions for us:

    (1) Was the conduct of the trial and the summing up correct'

    (2) Are the convictions safe''

    The Court of Appeal dealt with the various grounds of appeal as follows:

    - The Court of Appeal did not accept that the concept of 'indecent' material was too vague to allow a citizen to conduct himself in knowledge of what the law was. It recalled that the test of whether an article was indecent was an objective one, and that the quality of indecency was to be determined by looking at the article alleged to be indecent, and nothing else. To require absolute certainty in advance as to whether an article was or was not indecent would set an impossible task which could only be met in the rare case in which a second set of proceedings was brought in respect of specific material already found to have been indecent.

    - As to the ground of appeal that the judge was alleged to have dealt wrongly with the 'context' of the photographs in that he had...

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