R (Adamson) v Thames Magistrates’ Court [2019] EWHC 2675 (Admin)

The applicant sought permission for judicial review of a decision by the district judge to order forfeiture of a number of indecent images under s5 of the Protection of Children Act 1978 and prohibited images under s67 of the Coroners and Justice Act 2009.

The applicant submitted that any forfeiture made under s67 in respect of obscene drawings was in breach of Articles 8 and 10 of the European Convention on Human Rights. He argued that forfeiture was not a proportionate restriction of the rights guaranteed by those articles in that it had no rational connection with any legitimate aim. He conceded that the Court of Appeal in Smethurst held that s1 of the Protection of Children Act was a proportionate interference with Articles 8 and 10, but argued that this did not apply to drawings.

A report from the Joint Human Rights Committee was relied upon from when a proposal to ban drawings was before Parliament. That report concluded that no sufficiently weighty reasons had been provided for interference in those rights. The applicant also commissioned a report from a Dr Thomson who said there was no evidence to support that the possession of such images can lead to contact offending and supported the opposite proposition.

It was argued that permission for judicial review should be refused as the orders were lawful, reasonable and proportionate; the applicant’s grounds were not properly arguable; possession of prohibited images was an offence.

Held: Articles 8 and 10 are both engaged, and the question is one of the proportionality of any interference with those rights. It is unarguable that Smethurst should be reconsidered based on one article commissioned by the applicant.

It was accepted that in drawings, no actual child has been exploited. However, by s62(2) possession of such an image is only unlawful if it is pornographic, there is a higher test than that which has to be met for “indecency” as required for actual photographs.

It is unarguable that prohibiting the possession of images falling into this well-defined category is a disproportionate interference with the applicant’s Article 8 and 10 rights. It follows that it is unarguable that forfeiture of the items is a disproportionate interference.

Permission to judicially review the decision was refused.