Case No: 99/0870/W2, 99/4175/W2
 
BAILII Citation Number: [1999] EWCA Crim 2270
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CAMBRIDGE CROWN COURT
(HHJ Haworth)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10 November 1999

B e f o r e :

LORD JUSTICE OTTON
MRS JUSTICE SMITH
and 
MR JUSTICE COLLINS
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	JONATHAN BOWDEN		

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(Transcript of the Handed Down Judgement of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040   Fax No 0171 831 8838
Official Shorthand Writers to the Court)
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Mr Sadakat Kadri appeared on behalf of the Appellant
Mr G Hawkesworth [Mr Michael Crimp] appeared on behalf of the Crown
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Judgment

LORD JUSTICE OTTON:

The question raised by this appeal is whether downloading and/or printing out of computer data  of indecent images of children from the Internet is capable of amounting to an offence contrary to section 1(1)(a) of the Protection of Children Act 1978.  

In the Crown Court at Cambridge, before HHJ Haworth following an unsuccessful submission, the appellant changed his pleas to guilty to 12 counts of having “made an indecent photograph” contrary to section 1(1)(a) of the Act.  He also pleaded guilty to nine other offences which had been committed to the Crown Court by Magistrates under section 41 CJA 1988 of possessing an indecent photograph of a child under the age of 16 years contrary to section 160 of the Criminal Justice Act.  For the Protection of Children Act offences he was sentenced to four months’ imprisonment concurrent, and for the possessing offences he was sentenced to three months’ imprisonment on each count concurrent.  An order was made under section 43 PCCA 1973 for forfeiture of the computer and equipment and the destruction of the photographs.  

He appealed against conviction on counts 1 to 12 following a certificate of fitness for appeal granted by the trial Judge:

“On a ground which involved a question of law alone, namely, whether upon agreed statement of facts attached, the defendant has committed offences contrary to section 1(1)(a) of the PCA 1978.”

He also appeals against sentence by leave of the single Judge who granted bail.  We heard this appeal on the 2nd September and indicated that the appeal against conviction would be dismissed but quashed all the sentences of imprisonment.  We indicated that we would give our reasons at a later date.  These are the reasons.

BackgroundBackgroundBackgroundBackgroundBackground

The appellant took his computer hard drive to a computer firm for repair.  While examining the computer, the repairer found indecent material on the hard drive.  As a result of a subsequent investigation, police seized a computer and equipment including hard disc and floppy discs from the appellant.  They examined the discs which contained indecent images of young boys.  The appellant had downloaded the photographs from the Internet, and either printed them out himself, or stored them on his computer discs.  It was not contested that all the photographs were indecent and involved children under 16 years. When arrested and interviewed the appellant accepted that he had obtained the indecent material from the World-wide Web Internet and downloaded them onto his hard disc in his computer for his own personal use.  He did not know it was illegal to do this.  He admitted that he had printed out photographs from the images he had downloaded.  One of the images existed only as data on discs owned by the defendant and was a pseudo-photograph.  

At trial there was an agreed statement of facts: 

"The exhibits referred to in the Indictment are:
- in the case of Counts 1 - 3, printouts seized from the Defendant.  They were made by him by viewing on his screen a photograph received via the Internet and then instructing his computer to print one paper copy of that photograph.

- in the case of Count 4, a printout made by the police of a pseudo-photograph stored in a data file on a computer disc seized from the defendant.  That data file was downloaded by the defendant from the Internet and stored by him on his own computer disc.

-in the case of Counts 5-12, printouts made by the police of photographs stored in data files on computer discs seized from the defendant.  Those data files were downloaded by the defendant from the Internet and stored by him on his own computer discs.

The photographs are all indecent, and all depict children.

It is not part of the Crown’s case that the defendant distributed any images.  It was accepted that all the images were downloaded for his own use.

It is not part of the Crown’s case that the defendant created for the first time any image that did not already exist in a visually identical form.

The appellant’s Counsel submitted that the appellant was not guilty of “making” photographs contrary to the section.  He submitted that the appellant was in possession of them but nothing more.  The trial Judge rejected the defence submission and ruled that on the agreed facts the behaviour amounted to the taking or making an indecent photograph or pseudo-photograph and was caught by the Act. Whereupon the defence entered a plea of guilty.   

The LawThe LawThe LawThe LawThe Law

Section 1 of the Protection of Children Act 1978 provides (as relevant) that:
1.(1)   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; or
(b) to distribute or show such indecent photographs or pseudo-photographs; or
(c)  to have in his possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by himself or others; or
(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

(4)   Where a person is charged with an offence under subsection 1(b) or (c), it shall be a defence for him to prove - 
(a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or
(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect them to be indecent. 

(5)References in the Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection 1 (a) above.

Section 7 of the Act provides, among other things, that:

7. -(1)The following subsections apply for the interpretation of this Act.
(2)References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.
. . . 
(4)References to a photograph include -
(a) the negative as well as the positive version; and
(b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.
. . . 
(7)‘Pseudo-photograph’ means an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph.
. . . 
(9)References to an indecent pseudo-photograph include -
(a)  a copy of indecent pseudo-photograph; and 
(b)  data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph.

7.Section 160 of the Criminal Justice Act 1988 provides:

160. --(1)  It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.

(2)  Where a person is charged with an offence under subsection 

(1) above, it shall be a defence for him to prove - 

(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or 

(b)  that he had not himself seen the photograph or pseudo- photograph and did not know nor had any cause to suspect, it to be indecent; or 

(c)  that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for any unreasonable time.

(3)A person shall be liable on summary conviction of an offence under this section to imprisonment for a term not exceeding six months or a fine not exceeding level 5 on the standard scale, or both.

(4)Sections 1(3), 2(3), 3 and 7 of the Protection of Children Act 1978 shall have effect as if any reference in them to that Act included a reference to this section.  

Section 1 of the PCA, at its inception, was designed to deal with aspects of child pornography above and beyond simple possession.  In its original form, the only verb used in Section 1 (1) (a) was “take”.  In 1988 by Section 160 of CJA the possession of indecent photographs became a summary offence.  By 1990 society had become concerned that the law was inadequate to deal with the less desirable developments in computer technology.  As a result Part VII of the Criminal Justice and Public Order Act 1994 (CJPOA) was enacted to amend particulars of existing legislation.  By Section 84: 

"(1)Protection of Children Act 1978 shall be amended .....
  (2)In Section 1 (which penalises the taking and distribution of indecent photographs of children and related acts) - 

(a)In paragraph (a) of subsection (1) -

(i) After the word “taken” there shall be inserted the words (“or to make”, and the words following “child” shall be omitted;

(ii)After the word “photograph” there shall be inserted the words “or pseudo-photograph”;"

Thus Section 1 of the PCA as amended reads:

"(1)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; ....."

Section 84 (3) in Section 7 (interpretation):

"(c)After subsection (5) there shall be inserted the following subsections ---

(7)‘Pseudo-photograph’ means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph."

Similar amendments were made to Section 160 CJA 1988 and by Section 86 (1) simple possession of an indecent photograph under Section 160 became imprisonable (on summary conviction) for the first time.

In R v  Fellows and Arnold [1997] 1 CAR 244 this Court (Evans LJ, Cresswell and Butterfield JJ) held that the scope of the definitions of indecent photographs in Section 1 and 7 of the 1978 Act were wide enough to include a form of technology not anticipated when that Act was passed; that although a computer disc was not a photograph, it contained data which could be converted into a screen image and into a print exactly reproducing the original photograph from which it was derived; that there was no restriction on the nature of a copy and the data represented the original photograph in another form; and that, accordingly, the judge was correct to rule that the disc held data which came within the definition of “photograph” for the purposes of the 1978 Act.

Mr Sadakat Kadri in an attractive argument submits that on a true construction of Section 1 (1) (a) PCA as amended:

There is no offence of “making” a photograph.  The conduct criminalised by the statute is either taking etc. a photograph, or making a pseudo-photograph;

Alternatively, the verb “make” is used in the sense of “create”, and should not be understood to encompass mere downloading or printing out of computer data.
It is submitted that none of the changes alter the fact that the mischief at which Section 1(1) (a) has always been aimed is the active creation of indecent child pornography.  It is accepted that the 1994 amendments altered this position to the extent that Section 1 (1) (a) now covers those involved in the creation of pseudo-photographs who may have no contact with the subjects of the images.  However, the addition of the verb “make” did not alter the fundamental nature of the Section 1 (1) (a) offence.  It was inserted there by Section 84 (2) (a) because it was the most natural way of describing the creation of composite images.  It merely complemented the offence of “taking” etc. ordinary photographs.  Counsel suggests that the 1994 amendments might have been more felicitiously drafted and in particular it would have been clearer if it had specified that the activities to be penalised were the “taking of photographs and the making of pseudo-photographs”.  Thus there exists at the very least ambiguity about the true intention of Parliament which should be resolved in the appellant’s favour.  This is particularly so as the principle of statutory construction that that a narrow construction of an ambiguous penal statute is to be preferred to a wider one.  Moreover, the relevant debates in Hansard make clear that the purpose of amendments to the 1978 and 1988 Acts were simply to clarify the law’s definitions, and to deal with the mischief of pseudo-photographs.

Counsel also invokes Article 8 of ECHR:

"1.Everyone has the right to respect for his private and family life, his home and his correspondence.

2.There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of National security, public safety or the economic well being of the Country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

He submits that the advent of the Human Rights Act should leave the Court to prefer an arguable interpretation that would avoid conflict with the articles.  In particular, the Court should prefer a construction of Section 1 that will more easily accord with the well established principles surrounding the terms “necessary” and “proportionate”. In the absence of a clearly contrary legislative intention, it should be presumed that Parliament did not intend to legislate contrary to the international obligations of the United Kingdom.

We are unable to accede to this interesting argument.  In our judgment Section 1 as amended is clear and unambiguous in its true construction.  Quite simply, it renders unlawful the making of a photograph or a pseudo-photograph.  There is no definition section.  Accordingly the words “to make” must be given their natural and ordinary meaning.  In this context this is “to cause to exist; to produce by action, to bring about” (OED).  As a matter of construction such a meaning applies not only to original photographs but, by virtue of Section 7, also to negatives, copies of photographs and data stored on computer disc.

We do not accept that Section 1 in its present form is either ambiguous or obscure.  We are certainly not persuaded that in some way the draftsman nodded and produced an ambiguous, obscure or illogical result.  Nor do we accept that the natural interpretation leads to any absurdity suggested by counsel.  We prefer the submission of Mr Michael Crimp on behalf of the respondent:

"A person who either downloads images on to disc or who prints them off is making them.  The Act is not only concerned with the original creation of images, but also their proliferation.  Photographs or pseudo-photographs found on the Internet may have originated from outside the United Kingdom;  to download or print within the jurisdiction is to create new material which hitherto may not have existed therein."

Moreover, we do not see any necessity to refer to Parliamentary material for assistance in interpretation.  In Pepper v Hart [1993] AC 593 Lord Browne-Wilkinson said at p634:

"References to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity.  Even in such circumstances, references in Court to Parliamentary material should only be permitted when such material clearly discloses the mischief aimed at or the legislative intention lying behind them is obvious."

As we are satisfied that there is no ambiguity, obscurity or absurdity there is no necessity to refer to such material.  However, excerpts from Hansard were appended  to the appellant’s skeleton argument, we have considered them and we find it impossible to conclude that the reproduction of indecent material to be found on the Internet was not within the mischief aimed at by the legislation when the words “to make” were included in the amending statute.  

Similarly we see no necessity to consider the jurisprudence of the European Community.  

Similarly we see no need to resort to the ECHR in interpreting a domestic statute which was amended in 1994 so that the presumption that Parliament intended to legislate in conformity with the Convention, and not in conflict with it, applies.

Even if we were to do so we are satisfied that the interpretation we place upon this section is not inconsistent with an interpretation arrived at by the use of the Convention.  Article 8 provides for a qualified right to respect for private and family life, home and correspondence.  This right may be legitimately interfered with where necessary: 
"for the protection of health or morals or for the protection of the rights and freedoms of others."

Accordingly we have come to the conclusion that despite the fact that he made the photographs and the pseudo-photographs for his “own use”, his conduct is clearly caught by the Act.  The judge’s ruling was  correct, the appellant correctly changed his pleas to guilty on Counts 1 -12, the convictions must stand and we dismiss the appeal against conviction.  

Sentence
 
Mr Kadri submitted that an immediate custodial sentence was wrong in principle in the circumstances of this case.  There was no evidence of risk to the public.  Although he was a school teacher there was a total absence of any evidence or history of inappropriate behaviour towards children.  There was no breach of trust.  Mr Bowden’s position in the chain of production of indecent material was as low as could be consistent with the commission of the offences.  There was no further dissemination of the material.  Above all he had no previous convictions of any sort.  

We accepted this submission without any reservation.  This was not a case where a custodial disposal was the only appropriate course.  We are satisfied that the sentences of imprisonment were wrong in principle and manifestly excessive.  We therefore imposed a conditional discharge for 12 months in respect of each count in the indictment.

To that extent the appeal was allowed.