CA (Otton LJ, Smith J, Collins J) 10/11/99

Summary: The downloading and/or printing out of computer data of indecent images of children from the Internet was capable of amounting to an offence within the meaning of s.1(1)(a) Protection of Children Act 1978.

An appeal against conviction and sentence imposed at Cambridge Crown Court before HH Judge Haworth.

Facts: The appellant had been charged with 12 counts of having "made an indecent photograph" contrary to s.1(1)(a) Protection of Children Act 1978, and nine other offences of possessing an indecent photograph of a child under the age of 16 years contrary to s.160 Criminal Justice Act 1988. The appellant was sentenced to four months' imprisonment for the 1978 Act offences and three months' concurrent for the 1988 Act offences. The appellant had downloaded photographs containing indecent images of young boys from the Internet and either printed them out or stored them on computer discs, for his own personal use. One of the photos existed only as data. The appellant had pleaded not guilty to the 12 counts on the 1978 Act offences but changed his plea after a ruling from the judge that the appellant's behaviour had amounted to taking or making an indecent photograph and he was not merely in possession of them. The issue on appeal was whether downloading and/or printing out of computer data of indecent images of children from the Internet was capable of amounting to an offence within the meaning of s.1(1)(a) of the 1978 Act.

HELD: (1) Section 1 of the 1978 Act had been amended by s.84 Part VII Criminal Justice and Public Order Act 1994 to read "It is an offence for a person: (a) to take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child..." It was held in R v Fellows & Anor (1997) 1 CAR 244 that the scope of the definitions of indecent photographs in ss.1 and 7 of the 1978 Act was wide enough to include a form of technology not anticipated when the Act was passed, and that a disc containing data of a photograph represented the original photograph in another form and was capable of coming within the definition of "photograph". It was accepted in the instant case that s.1(1)(a) of the 1978 Act covered those involved in the creation of pseudo-photographs who may have had no contact with the subjects of the images. (2) The wording in s.1 of the 1978 Act as amended was clear and unambiguous. It rendered unlawful the making of a photograph or a pseudo-photograph. The words "to make" had to be given their natural and ordinary meaning, and in the instant context that was "to cause to exist; to produce by action, to bring about". By virtue of s.7 of the 1978 Act that meaning applied to negatives, copies of photographs and data stored on computer disc. A person who either downloaded images on to disc or who printed them out was making them. To download or print the images within the jurisdiction was to create new material. The reproduction of indecent material to be found on the Internet was within the mischief aimed at by the legislation when the 1978 Act was amended by adding the words "to make". (3) The amendment to the 1978 Act occurred in 1994 and the presumption that Parliament had intended to legislate in conformity with the Convention, and not in conflict with it, applied. The right to respect for private and family life under Art.8 European Convention on Human Rights could be legitimately interfered with where necessary "for the protection of health or morals or for the protection of the rights and freedoms of others". (4) The appellant was of good character and there was no breach of trust nor any evidence of risk to the public. There was also no further dissemination of the material. Therefore, in the circumstances a custodial sentence was not the only appropriate course and the sentences had been manifestly excessive and wrong in principle. A conditional discharge of 12 months for all counts was substituted.

Appeal against conviction dismissed. Appeal against sentence allowed.

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