Operation Awful

In a letter to the Telegraph on 21 January 2003, Bill Hughes of the National Crime Squad describes a problem of 'children being horribly sexually abused, some no more than babies, having their childhood stolen from them and having the pictures of these shameful acts broadcast on the internet for all to see, forever, worldwide.'

According to Mr Hughes, the law enforcement agencies 'must be ruthless about stopping this appalling crime.'

And ruthless they are. Not only is first hand 'sexual abuse' dealt by the criminal law, but photographing it is a separate criminal offence under the Protection of Children Act 1978, which also criminalized the distribution or showing of such photographs.

One might think that that was enough to stop the 'appalling crime', but it was thought not: the Criminal Justice Act 1988 criminalized the simple possession of such photographs. However, the offence created by the Criminal Justice Act was never intended to be treated as seriously as the offences created by the Protection of Children Act, since it was a summary only offence punishable with up to 6 months imprisonment whereas offences under the 1978 Act were triable either way and subject to a 3 year prison sentence and the Act authorised the granting of a search warrant.

By 1990 society had become concerned that the law was inadequate to deal with the less desirable developments in computer technology. In 1994, the Criminal Justice and Public Order Act amended both the Protection of Children Act and the Criminal Justice Act, first to deal with pseudo-photographs, then to deal explicitly with images stored in computer files.

Pseudo-photographs are images, whether made by computer-graphics or otherwise howsoever, which appear to be photographs. These are of no particular concern here, save to say that there seems to be some confusion in law enforcement circles about what exactly they are: a pseudo-photograph appears to be a photograph and therefore must not be one - that can only mean it is a photo-realistic image which was created by non-photographic methods and does not depict reality.

The way in which the amendments were done is interesting.

Before being amended, section 1(1)(a) of the Protection of Children Act made it and offence for a person-

to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16) ; or

The section of the Criminal Justice and Public Order Act that amends s.1(1)(a) reads:

	(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'

making the Protection of Children Act read:

	It is an offence for a person-
	to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child ();

Should the final 'or' really be removed, as the instructions suggest? That the punctuation is not to be altered is clear from comparing section 84(2)(a) with section 84(4)(a), which explicitly deals with punctuation, and reads:

(a)

in subsection (1), after the word 'photograph' there shall be inserted the words 'or pseudo-photograph' and the words from '(meaning' to '16)' shall be omitted;

making section 160(1) of the Criminal Justice Act read:

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

One of the concerns addressed by the Criminal Justice and Public Order Act was the concern that the law could not deal with images stored on computer systems. This proved to be unfounded - in Fellows & Arnold^[1] it was held that an image stored on a computer system was a 'copy of a photograph' and was therefore covered by the definition of 'photograph' in the Act.

However, the Criminal Justice and Public Order Act brought images stored electronically explicitly within the areas of application of the 1978 and 1988 Acts by extending the definition of 'photographs' to include 'data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.'

In R. v. Bowden 1999, the Court of Appeal upheld a conviction under the Protection of Children Act of 'making indecent photographs of children'.

Since 'making' means 'to cause to exist', and by section 7(2) of the Protection of Children Act the definition of photograph includes 'copies of photographs', section1(1)(a) of the Act criminalizes the creation of a computer file by downloading it from the Internet, since it is a 'copy of a photograph' (as per Fellows & Arnold) that has been 'caused to exist' by the downloading.

In the Court's judgement, Lord Justice Otton said that section 1 of the 1978 Act was designed to deal with aspects of child pornography above and beyond simple possession. On the face of it, this seems uncontroversial since section 1 also covers showing photographs, distributing them, possessing them with an intention to show or distribute, and placing adverts indicating that they are distributed or shown. However, the judgement upheld in the Bowden case complicates matters greatly.

If section 1 of the 1978 Act deals with aspects of child pornography above and beyond simple possession, section 160 of the 1988 Act must be left to deal with simple possession.

While stored on their electronic media, such copies of photographs are invisible to the eye. To be made visible, they have to be converted from the format in which they are stored. While this visible form is not a photograph, it is a copy of a photograph and therefore a copy has been 'made' by the conversion process and a section 1(1)(a) offence has been committed. The Court of Appeal in Smith & Jayson^[2] held that in displaying an image on a computer screen a copy of the image was caused to exist on the screen.

This means that indecent photographs of children stored on electronic media can only be possessed without committing further offences for the time between their being obtained - from a known or suspected source of indecent photographs of children - and their being viewed, meaning further that they can only be obtained on their electronic medium: they cannot be downloaded or copied (=making).

This subverts the intention of Parliament.

In drafting section 160 of the Criminal Justice Act, Parliament carefully defined three defences to charges of possessing an indecent photograph - the existence of a legitimate reason for possessing it; not having seen it and not knowing or suspecting it to be indecent; that it was sent without any prior request and that it was not kept for an unreasonable time.

Of these, the first is the one most immediately interesting. In Atkins^[3] it was held that the question of what constitutes a 'legitimate reason' is a pure question of fact in each case. One example might be the possession of indecent photographs of a child by a police officer in the investigation of a case of possession. Another might be the use of such photographs by a psychotherapist in the subsequent treatment of the person who was the object of that investigation.

In the case of the psychotherapist, by far the most convenient means of 'possession' would be on a computer. Since there would presumably also be a duty to take reasonable steps to prevent legitimately held photographs getting into the hands of those without such a legitimate reason for possession, storage of such images on a computer would allow them to be protected - most simply by means of a password without which it would be impossible to look at them.

In the case of the police officer, possession would necessarily involve images stored on electronic media where the investigation itself involved electronic media.

The Protection of Children Act also contains a similar defence in the case of indecent photographs of children possessed with the intention of being shown (or distributed).

The fact that Parliament has included defences to offences under sections 1(1)(b) and (c) but not to section 1(1)(a) indicates that the omission was deliberate^[4]. Quite simply, there is no defence to a section 1(1)(a) offence - neither legitimate reason nor lack of knowledge.

Is it reasonable to conclude that there can be a legitimate reason to possess an indecent photograph of a child - showing it to a jury for example - and yet the actual showing of the image - to a jury - is a criminal act?

Parliament did not intend the word 'make' to apply in this way.

This can be demonstrated quite simply. First, consider the botched process of amending section 1 of the Protection of Children Act. In the Bowden case, Lord Justice Otton declared section 1 of the 1978 Act as amended to be clear and unambiguous.

However, the version of section 1(1)(a) repeated in the decision of the Court reads

It is an offence for a person- to take, or permit to be taken, or to make any photograph or pseudo-photograph of a child; or

which is not what is obtained by applying the instructions of the Criminal Justice and Public Order Act to the Protection of Children Act:

It is an offence for a person- to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child ();

According to Cross^[5] , punctuation forms part of the statute and must be given the significance it has to the ordinary user of the English language. Lord Lowry is quoted as saying^[6]

I consider that not to take account of punctuation disregards the reality that literate people, such as Parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament.

Does the second version of s.1(1)(a) above mean that it is an offence 'to permit to make an indecent pseudo-photograph' rather than 'to make an indecent pseudo-photograph'? It would be ridiculous to say so, but the punctuation needs to be corrected.

Second, the definition of 'to make'. Statutes should be read as a whole. The words in an Act are not to be taken out of the Act, defined in isolation and placed back in the Act with the meaning chosen for them. Viscount Simmonds said^[7]:

words, and in particular general words, cannot be read in isolation, their colour and content are derived from their context. So it is that I conceive it to be my right and duty to examine every word of a statute in its context, and I use 'context' in its widest sense… including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy.

The Protection of Children Act says of itself that it is 'an Act to prevent the exploitation of children by making indecent photographs of them' and, in un-amended form, such indecent photographs are 'made' by being 'taken'.

In amended form, the verb 'to make' of course appears in section 1(1)(a) but, other than in the long title, the only other place at which it occurs (with regards photographs as opposed to summons and so on) is in the definition in section 7(7) of a pseudo-photograph, which is

an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

In both cases, to make something means to cause it to come into existence for the first time ^[8].

Since there is a presumption that a word bears the same meaning throughout an Act, and 'making by computer graphics' is something quite different to 'making by downloading', by application of the esjudem generis ^[9] rule pseudo-photographs are not made by downloading.

References to a pseudo-photograph include s.7(9)(a) a copy of a pseudo-photograph and s.7(9)(b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph.

The most obvious way in which a pseudo-photograph would be made (the way suggested in the Act) is by computer graphics. What is created by this method is, by definition, data stored by electronic means. Such data is made by the 'computer graphics'. It cannot subsequently be remade when a copy is made.

It is the usual presumption that a word should bear the same meaning throughout the same Act^[10]. According to Glanville Williams^[11]

'the judge may look up the meaning of a word in a dictionary or technical work; but this ordinary meaning may be controlled by the particular context. As everyone knows who has translated from a foreign language, it is no excuse for a bad translation that the meaning chosen was found in the dictionary; for the document may be its own dictionary.'

Words, especially general words, are not to be defined in isolation. The word 'make' is primarily used in s.1(1) where it can refer either photographs or pseudo-photographs.

Section 7(4) of the Protection of Children Act says that:

(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.

If section 7(4)(b) is to be given any effect at all, an image (say) downloaded from the Internet and saved to disc (either deliberately by the operator, or in the cache) has to be considered as being 'data stored on a computer disc' rather than as being a 'copy of a photograph'.

It is presumed that Parliament does nothing in vain^[12]. Section 7(4)(b) must therefore be given effect - it is presumed that if a word or phrase appears in a statute, it was put there for a purpose and must not be disregarded. The Court is not at liberty to treat the words as mere tautology or surplusage unless they are wholly meaningless, and if it is doing so, it must not say that the words of the Act are 'plain and unambiguous'.

Therefore, the question that should have been asked in the Bowden case is not 'has a copy of a photograph been caused to exist?' but 'has the data stored on the computer disc been caused to exist?', to which the answer is an emphatic 'No!' The data stored on the computer system doing the downloading is the same data being transmitted by the computer from which the data is being downloaded - it was made originally by something like a scanner or digital camera.

The Fellows & Arnold case should not have been mentioned in the Bowden decision since it was amended it into an interpretive backwater by the Criminal Justice and Public Order Act.

That it was is evidence that the Court of Appeal did not perform its duty (see quotation of Viscount Simmonds above). Cross^[13] again:

The rules of statutory interpretation provide criteria for identifying legal rules, and belong to the category of 'secondary rules' of the legal system… A rule of this kind has a double aspect in that it is both a legal rule and a social practice… The rules and principles of statutory interpretation are legally binding statements of the approach he should adopt.

In Bowden, the Court of Appeal said that section 1 of the 1978 Act as amended was neither ambiguous nor obscure, and that the 'natural interpretation' leads to no absurdity.

As amended, the punctuation of section 1(1)(a) obscures the meaning of what the section is trying to say.

It is absurd to hold that there can be a legitimate reason to possess an indecent photograph of a child - showing it to a jury for example - and yet criminalize the actual showing of the image.

An image stored on a computer disc is not a copy of a photograph - rather, it is 'data stored on a computer disc… that is capable of conversion into a photograph'. Such data is not 'caused to exist' by being downloaded, or by deliberately copying the files containing the data.

However, while an image displayed on a computer screen can be considered as being 'data stored electronically', it can also be considered as being a 'copy of a photograph', since it is not a photograph but is visually identical to the original photograph and has been caused to exist as a result of the conversion process that, of necessity, took place in converting the image to a visible form.

Had the question of 'has the data in a file downloaded from the Internet been caused to exist?' been asked, and of necessity answered in the negative, a section 1(1)(a) offence of 'making' would still be committed when the image was displayed.

It is absurd to hold that a person looking at an indecent photograph of a child stored in a computer file is doing anything substantially different from a person looking at an indecent photograph of a child included in a magazine, particularly when the only basis for doing so is a possible interpretation of section 1(1)(a) of the Protection of Children Act and where no further grounds for the distinction have been made. To say that the person downloading from the Internet is part of the chain of production is misrepresentation, for possession with intent to distribute is an offence in its own right.

In a speech at a dinner for HM Judges on 22 July 1998, Lord Bingham of Cornhill said that irrational distinctions mean injustice - when A is treated differently from B when there is no rational ground for treating him differently, this is not justice.

The 'Rule of Law'^[14] requires that everyone is equal before the law - that there is equal accountability under the law. Any police officer breaking the law must be answerable to the law.

To charge a person with 'making indecent photographs of children' where the images are stored in files that were downloaded from the Internet is oppressive since the only evidence that can be adduced will be the result of the investigating party committing exactly the same offence as the accused.

The Court of Appeal has held that necessary mens rea in an s.1(1)(a) offence is that the act of making should be a deliberate and intentional act with the knowledge that the image was or was likely to be an indecent photograph or pseudo-photograph of a child^[15].

Where the police have obtained a warrant against a person on the basis of the suspicion of possession of indecent photographs of children, they cannot be surprised to find such photographs on the copies that they make of the discs suspected of containing that material.

In copying they make, and Parliament excluded an easily drafted defence to such an offence; this absence does not mean that the court should imply a defence, since if Parliament had intended one, it would have included one^[16].

The principle of equality also implies that there must be strict rules of evidence in court proceedings to ensure that evidence obtained unlawfully is excluded from the proceedings.

In a trial on a charge of 'making an indecent photograph of a child', where the evidence can only be obtained by the same offence being committing by the investigating authorities, the evidence is obtained unlawfully. To allow it to be used in a trial can only prejudice the fairness of the process - therefore a judge should be compelled by the Human Rights Act 1998 to exercise his discretion under the Police And Criminal Evidence Act to exclude the evidence since to admit it violates the Article 6 right to a fair trial.

Similarly, use of the evidence for the trial itself constitutes the making offence: printing off copies of the evidence is making as is displaying on a computer screen.

It is absurd to think that Parliament inserted the word 'make' into the Protection of Children Act with the intention of causing legitimately possessed evidence to be prejudicial to a trial in which it is used.

The principle of equality requires that any government agent making decisions exceeding his authority as defined by law should find his decisions ruled ultra vires by the courts.

A prosecution is brought against the 'paedophile' for committing the making offence; where a police officer commits exactly the same offence, no prosecution is pursued. There is no defence against a section 1(1)(a) offence. The Director of Public Prosecutions has no grounds to treat the police officer as immune. To do so is ultra vires.

The 'Rule of Law' also requires that no one be punished except for a clear breach of the law.

The law cannot be clear when the Court of Appeal has incorrectly held that computer files are 'copies of photographs' nor where it has correctly held - but on faulty reasoning - that 'downloading an indecent image from the Internet to a computer screen' is an act of making a photograph because the image is caused to exist on the screen.

On a closely related note, the number of offences committed while an indecent photograph of a child is displayed onscreen is unclear: the Court of Appeal says that the length of time an image remains on the screen is irrelevant but this is because the Court misunderstands the nature of the technology. Where a computer screen has a refresh rate of 100 Hz, 100 distinct conversion processes take place every second - if one of them is an offence, the other 99 must be too, and 100 distinct offences are committed. An strangeness creeps in here though. On a screen with a 100 Hz refresh rate, each one of those 100 images is on the screen for ¹/₁₀₀^th of a second, making it invisible. Is a an image a 'copy of a photograph' when it is invisible?

Furthermore, it is unclear if the use of different display devices makes a difference to the illegality of 'making by showing' - if a projection device is used instead of a cathode ray tube (CRT) display, is the image projected onto the screen 'caused to exist'?

If so, then the light leaving an indecent photograph of a child contained in a magazine and striking the nerves in the back of the eye is surely causing an image to exist inside the eye…

By virtue of section 7(2) of the Protection of Children Act, references to an indecent photographinclude 'an indecent film'. By section 7(5), 'film' includes any form of video‑recording.

Despite video being an electronic medium, an image stored electronically on the videotape is not converted into an onscreen 'copy of a photograph' by the 'conversion' necessary to make it visible, simply because video is included in the definition of 'film' and 'film' is contained in the definition of 'photograph'. It is a 'film' and not 'data stored by electronic means' and therefore s.7(4)(b) does not apply to it, since expressio unius est exclusio alterius ^[17].

Watching a film contained in a video is showing a film. The Court of Appeal has held that there is no offence of showing a film to oneself^[18].

However, when the same type of display technology is used to display an image in a computer system, the image displayed on a screen is a 'copy of a photograph' that has been caused to exist on the screen by the conversion and a section 1(1)(a) 'making' offence is committed.

It is a principle of legal policy that a person should not be penalised except under clear law^[19].

By considering the word 'make' to apply to photographs and not just pseudo-photograhs, the law is made monumentally obscure: a file containing an indecent photograph of a child is not a 'copy of a photograph' - it is 'data stored by electronic means that is capable of conversion into a photograph'. Therefore copying such a file cannot constitute causing a 'copy of a photograph' to exist, since the copy of the file is also 'data'.

However, converting it into viewable form involves 'causing a copy of a photograph to exist on the screen'. Playing a video through exactly the same kind of equipment however is 'showing a film' and there is 'no offence of showing a film to oneself'.

Where defendants are not treated equally under law, there is no justice.

Those charged with 'making indecent photographs of children' are not doing anything substantially different from the person possessing magazines containing similar images simply because of one possible interpretation of section 1 of the Protection of Children Act.

The words 'to make' are said to be bear their 'natural meaning'. If the result of such a meaning is so obscure, unjust and absurd, to use that meaning must be wrong.

In their 'Consultation Paper on the Regulation of R18 Videos'^[20] the Home Office said of the Protection of Children that

this Act (as amended) makes it an offence to produce or publish indecent photographs of a child under 16, including pseudo photographs which may be transmitted via computers.

They did not say that it 'made it an offence to download an indecent photograph from the Internet, produce…'. This consultation paper was drawn up by the Sentencing and Offences Unit, who might be expected to know what offences exist under the law.

The law is not clear enough to support an offence of 'causing a copy of a photograph to exist on a screen'.

Certainly this would not be understood by the public as 'making an indecent photograph of a child'.

After Pete Townshend 'voluntarily' attended a police interview, the Metropolitan Police issued a statement warning that the word 'making' should not be taken too literally^[21] , whereas the Court of Appeal said it was being accorded its 'natural meaning' by application of the so-called 'literal rule' of statutory interpretation.

The law as it is being applied is not only illiberal, it unlawful - it is not law.

mail me
pca_1978@yahoo.co.uk

Notes