R (Adamson) v Thames Magistrates’ Court [2019] EWHC 2675 (Admin)
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R (Adamson) v Thames Magistrates’ Court [2019] EWHC 2675 (Admin) was a claim for judicial review before Mrs Justice Cutts in which the applicant, Mr Leo Adamson, appearing as a litigant in person, challenged a forfeiture order made by a district judge at Thames Magistrates’ Court on 27 March 2018. Permission for judicial review was refused.
The district judge had ordered the forfeiture of a number of indecent images pursuant to section 5 of the Protection of Children Act 1978 (as amended) and prohibited images pursuant to section 67 of the Coroners and Justice Act 2009. The Commissioner of Police for the Metropolis, who had made the original forfeiture application, was joined as an interested party and opposed the application through counsel, Mr Ladenburg.
Section 67 of the Coroners and Justice Act 2009 provides for the civil forfeiture of prohibited images of children, which are defined by section 62 as images which are pornographic, focus solely or principally on a child’s genital or anal region or portray certain sexual acts, and are grossly offensive, disgusting or otherwise of an obscene character. Such images need not be photographs of actual children but may include pornographic drawings. Under Schedule 11 of the Police and Justice Act 2006, a constable may apply to the court for forfeiture and the court must condemn the items if satisfied that they are forfeitable property and no claimant has a legitimate reason for possessing them. Paragraph 13 of the Schedule provides a right of appeal to the Crown Court against any decision of the magistrates’ court.
Mr Adamson restricted his arguments to the drawings that had been forfeited, conceding that the Court of Appeal in Smethurst, R (on the application of) [2001] EWCA Crim 772 had held that section 1 of the Protection of Children Act 1978, making or distributing an indecent photograph, was a proportionate interference with Articles 8 and 10 for the legitimate aims of the prevention of crime, protection of morals and prevention of the exploitation of children. However, he contended that this reasoning did not apply to drawings, which he submitted were works of imagination rather than directly captured images of real individuals and therefore could not involve the exploitation of children. He submitted that any forfeiture order under section 67 in respect of obscene drawings was in breach of Articles 8 and 10 of the European Convention on Human Rights because it had no rational connection with any legitimate aim and was therefore a disproportionate restriction of the rights guaranteed by those articles.
Mr Adamson further submitted in writing, though did not develop the argument orally, that the ruling in Smethurst was eighteen years old and needed to be revisited. He relied on a report from Dr Thomson which he had commissioned and which, he claimed, showed that those in possession of indecent images were less rather than more likely to commit contact offences. He also relied on a report from the Joint Human Rights Committee when the proposal to ban possession of drawings was before Parliament, which had concluded that no sufficiently weighty reasons had been provided for the interference in Convention rights. In his written submissions he argued that the measure engaged Article 14 because it was aimed at a minority based on a personal characteristic, namely paedophiles. He contended that in making the orders the district judge had breached the duty of public authorities under sections 3 and 6 of the Human Rights Act 1998 to apply and interpret the law in accordance with the European Convention and invited the court to consider making a declaration of incompatibility under section 4 of the Human Rights Act.
Mr Ladenburg on behalf of the Commissioner submitted that permission should be refused because the forfeiture orders were lawful, reasonable and proportionate and the applicant’s grounds were not properly arguable. The possession of prohibited images constituted a criminal offence and the civil forfeiture of such images absent a criminal prosecution could not be said to be unlawful and amounted to a necessary and proportionate restriction of the applicant’s Article 8 and 10 rights. He relied upon the decision in Smethurst that forfeiture and destruction of indecent images of children is necessary in a democratic society for the prevention of crime, for the protection of morals and the protection of rights and freedoms of children. He submitted that the regime under section 62 was sufficiently certain, as well as proportionate and necessary to a legitimate aim for the purpose of criminal punishment, so it was inevitable that this would be so for the purposes of civil forfeiture. He submitted that Article 14 was not engaged because there had been no evidence that the applicant had been discriminated against.
Mrs Justice Cutts accepted that both Articles 8 and 10 were engaged but noted that these were qualified rights and the question was one of proportionality. She held that in Smethurst the Court of Appeal had found that section 1 of the Protection of Children Act 1978 was proportionate because it was necessary in a democratic society for the prevention of crime, the protection of morals and to prevent the exploitation of children. She considered it unarguable that Smethurst should be reconsidered on the basis of one article by Dr Thomson commissioned by the applicant. While she accepted that in drawings no actual child had been exploited, she noted that by section 62 subsection 2 possession of such an image was only unlawful if it was pornographic in the defined sense, fell within subsection 6 and was grossly offensive, disgusting or otherwise of an obscene character. This was a higher test than that for indecency required for actual photographs. She referred to the rationale set out in the Legislative Scrutiny report on the Coroners and Justice Bill at paragraph 1.175, which recorded the Government’s view that such material was being exploited as a form of permissible child pornography, that there was a need to protect children from abuse and to protect children and vulnerable adults from coming into contact with the material, that such material could desensitise people to child abuse and reinforce inappropriate and potentially dangerous feelings towards children, and that the impact of the internet meant that existing laws did not cater for the potentially wide circulation of such material.
Mrs Justice Cutts considered it unarguable that prohibiting the possession of images falling into this well-defined category was a disproportionate interference with the applicant’s Article 8 and Article 10 rights. She found no basis for the argument that the applicant had been discriminated against. Because she considered it unarguable that the prohibition on possession was a disproportionate interference with the applicant’s rights, it followed that she considered it unarguable that forfeiture of the items was such. She noted that the district judge had carefully gone through each image and carefully applied the criteria within section 62 when determining whether there should be forfeiture.
In short, the claim for judicial review of the forfeiture order was refused on the ground that it was unarguable that the prohibition on possession of prohibited images in the form of pornographic drawings of children, and consequently their forfeiture, was a disproportionate interference with Convention rights.