The strange case of Pete Townshend and the Daily Paper

After the Daily Mail had reported that details of an internationally famous musician had been passed to police investigating an American pay-per-view porn ring, Pete Townshend felt compelled to act first and made a statement. [1]

It begins "I am not a paedophile". It is unclear if we are meant to take this in the same way as No 6's anguished declamation that he is "not a number!" but the effect is the same: No 6 IS a just number; Townshend IS a paedophile - but this says more about the word than about the man.

Townshend eventually made an appointment for the police to raid his house, which they did at 1500 GMT on Monday, 13 January 2003.

A Scotland Yard spokesperson said Townshend had been arrested [2] under the Protection of Children Act on "suspicion of possessing indecent images of children, suspicion of making indecent images of children and suspicion of incitement to distribute indecent images of children."

The Yard's investigation proceeded. Townshend complained that he had no access his music since the police had visited taken his computers. [3]

And then, despite the reported long delays before computer equipment could even begin to be forensically examined [4] , Pete Townshend was cautioned. It was all over [5] . In less than 4 months, the police had started and completed what was said to be subject to a 6-month delay and had cleared him of being in possession of indecent pictures downloaded from the Internet. However, he was 'cautioned for accessing a paedophile website'.

To caution someone there must be sufficient evidence to believe that a trial could end with a conviction.

'Accessing a paedophile website' is not a criminal offence NAMBLA's website [6] is a 'paedophile website' and it would be a violation of the right to freedom of expression if it were a criminal offence to access it.

Since there is no offence, no amount of evidence can secure a conviction.

According to the police spokesperson, Townshend was arrested on suspicion of 'possessing indecent images of children, suspicion of making indecent images of children and suspicion of incitement to distribute indecent images of children.'

He was reportedly cleared of possession [7] , which also means there was insufficient evidence for 'making indecent images of children'. [8]

The police had warned that the word 'making' should not be taken too literally [9] . Mick Farren [10] reports that Associated Press had to apologise for reporting 'making indecent images of children' as though it meant creating kiddie-porn using your actual kiddie. In his article, Farren says that Associated Press 'misinterpreted the wording of the statute'.

The statute [11] makes it an offence for a person 'to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child'. It seems more than natural to think that someone 'making an indecent photograph of a child' had involved an actual child.

However, it does not mean that. The offence is a technical one that was interpreted into existence [12] - if you download an indecent image of a child from the Internet, an 'indecent photograph of a child' is 'made' because a copy of the original photograph (i.e. the one from the other computer) is made (i.e. caused to exist) on your computer system (either on its hard drive or on its screen [13] ).

The Protection of Children Act is being applied in areas where the Criminal Justice Act 1988 [14] should be applied. [15]

This is why the police say 'making indecent photographs of children' should not be taken too literally; however, in Bowden the Court of Appeal said that it was giving the word 'make' its natural meaning (by application of the so-called 'literal rule'). The 'natural' meaning is used because people need to know what the legislation governing their lives means; if they have to be warned about taking 'making' too literally, this is a sign that the courts are misinterpreting the statute, not the public.

If Townshend was cleared [16] of possessing and making indecent photographs, the only thing left to caution him about is 'incitement to distribute indecent images of children'. [17]

To incite…

A person who solicits or incites another to commit a crime, or attempt to commit a crime, commits a common law offence [18] . A person may incite another by threat or pressure as well as by persuasion. [19]

The person incited to commit an offence does not need to have the same parity of mens rea as the inciter [20] but must know of the facts that make what is being incited an offence. [21]

For example, section 22 of the Theft Act 1968 stipulates that 'a person handles stolen goods if (otherwise than in the course of the stealing), knowing or believing them to be stolen goods, he dishonestly receives the goods, or dishonestly undertakes or assists in heir retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so.'

Since it is only possible to handle stolen goods if you know or believe them to be stolen, it is therefore only possible to 'incite a person to handle stolen goods' if the person you are inciting similarly knows or believes the goods to be stolen.

How do you 'distribute an indecent photograph of a child'? [22]

The defendant in DPP v Armstrong [23] had asked another man to supply him with pornography of girls not younger than 12 years. Unknown to him the man he had asked to supply the pornography was a police officer, and the defendant was charged with inciting a person to distribute indecent photographs of children. At first instance the magistrates found that the police officer had no intention of supplying the respondent with child pornography and, following R v Curr, concluded that the defendant was not guilty of incitement. On appeal by way of case stated, the Divisional Court ruled that for the purposes of the offence of incitement the intention of the person incited was irrelevant.

Now, if I ask you to send me 'pornography showing girls of at least 12 years', I am inciting you to distribute indecent photographs of children. Child pornography is necessarily indecent.

But I might be too timid to ask for 'pornography' and ask for 'pictures showing girls of at least 12 years' instead. I might be hoping that you send me 'pornography', but you have no idea what my un-stated requirements are. If you send me porn, did I incite you?

What is an indecent photograph of a child anyway? If I ask you to send me a picture of a naked boy and you send me 'Love locked out' [24] , have you sent me an indecent photograph of a child?
Firstly, it's not a photograph, so we are OK. [25]

No matter how much you believe it to be child pornography, you do not commit an offence when you send it to me; however, if I incite you to send it to me, am I guilty of 'incitement to distribute an indecent photograph of a child'? If not, what am I doing different to when I incite you and you send me kiddie-porn? I intend the same thing in each case'

Graham-Kerr [26] was charged with taking indecent photographs of a seven-year old boy contrary to S. 1(1)(a) of the Protection of Children Act. The Court of Appeal held that the motivation of the photographer had no influence on the decency or otherwise of the photographs taken; a photograph is an indecent photograph of a child if it is indecent, and if it shows a child. Its decency can only be determined by a magistrate or a jury. It is a matter of fact. [27]

ENDURING LOVE OR PEDOPHELIA?
Love Locked Out
Anna Lea Merritt

If the incitement took place by emails to the provider containing details of the type of photograph desired which the recipient replied with appropriate photographs, then what the inciter wanted can be clearly ascertained from the contents of the emails - 'pornography of girls not more than 12', for example.

When a person has gone on a hopeful search using something like Google, the details of what was sought are effectively lost. However, what they actually find is whatever the person who operates the website wanted them to find .

When a person follows a link to a site to which they subsequently subscribed, what is found is once again what they were intended to find.

And what of the case where YOU ask ME if I want any pornography?

In his statement, Pete Townshend said that he 'used a credit card to enter a site advertising child porn'.

In Invicta Plastics Ltd v Clare (1976) the Divisional Court held that those placing advertisements for devices to detect police speed-trap were guilty of inciting motorists to contravene the Wireless Telegraphy Act 1949.

How did Pete Townshend find the site?

Mick Farren's article quotes something Townshend wrote on another occasion:

'In Google [28] it is possible to reach a questionable array of offered sex sites with a very few keystrokes, and without typing a single word [29]. The pathway to 'free' paedophilic imagery is - as it were - laid out like a free line of cocaine at a decadent cocktail party: only the strong willed or terminally uncurious can resist.'

The World Wide Web is big: the Netcraft [30] Web Server Survey of April 2003 received responses from 40,100,739 sites. Given a choice of 40 million shopping centres [31] , how do you find a shop selling what you want? By looking up a business in the Yellow Pages, are you 'inciting' the proprietor to carry on his business? No, the proprietor has already decided to go into business and has taken steps to advertise his business somewhere where you will find it.

So surely the operator of the website incited Townshend to 'possess' or 'make' indecent photographs of children.

They were already operating the site. This means they had the photographs to distribute and that they had probably shown samples of them in their advertisement. Townshend himself sought out the advertisement, so any indecent image that he came into possession of as a result of accessing the advertisement was not distributed by the website operator.

In 1997, the Court of Appeal upheld the conviction of Alban Fellows [32] on four counts of having in his possession indecent photographs of children with a view to their being distributed or shown by himself or others contrary to s.1(1)(c) of the Protection of Children Act. He had used the computer of his employer, Birmingham University, to host an archive of indecent photographs which he made available via the Internet to people to whom he had given a password.

Owen J, the trial judge, had held that 'giving the password enabling others to have access to the archive was equivalent to giving them the key to a library where the picture was exposed, so that the recipients could enter the library in order to look at the picture, and that this would amount to "showing" the picture to those persons, and perhaps "distributing" it also, although for the purposes of distribution some more active participation might be required'.

Thus Fellows had the photographs in his possession with a view to showing them to others.

The trial judge recognised that distributing might require something more active than what Fellows had actually done; the Court of Appeal accepted defence counsel's suggestion that showing is active rather than passive. The intention was to argue that, since Fellows wasn't going to show the photographs, he couldn't have them in his possession with a view to their being shown; the Court of Appeal rejected this, because 'the fact that the recipient obtains an exact reproduction of the photograph contained in the archive in digital form does not mean, in our judgement, that the (copy) photographs in the archive are not held with a view to those same photographs being shown to others. The same data is transmitted to the recipient so that he shall see the same visual reproduction as is available to the sender whenever he has access to the archive himself.'

Fellows did not distribute; he did not show [33] - he possessed with a view to showing. [34]

Somehow, Steven Arnold learned of Fellow's archive. Maybe Fellows had incited him to possess indecent photographs (or 'make' per Bowden). But before Fellows would give Arnold the password needed to access the archive, Arnold had to 'upload' some appropriate material to the archive [35] . How did he know of this condition? Fellows must have told him in one way or another - why, then, was Fellows not charged with incitement to distribute?

Pete Townshend somehow learned of the site to which he subscribed with his credit card; he did not hit upon it by chance.

Farren quotes an online essay titled 'A Different Bomb' that Townshend published on his website in January 2002: 'within about ten minutes of entering my search words I [Townshend] was confronted with a "free" image of a male infant of about two years old being buggered by an unseen man.' [36]

Ignoring his contradictory statements, on one occasion Townshend found the website. It was already fully operational.

Disregarding his public confession [37] , his credit card subscription is the only hard evidence linking him to whichever site it is alleged his subscription constituted incitement to distribute.

According to The Independent [38] , Assistant Chief Constable Jim Gamble of the National Crime Squad feared, that suspects tipped off by the press may have already destroyed their computers and other evidence.

The Daily Mirror reported [39] that, where suspects had destroyed their hard drives to destroy evidence, the credit card details they gave to download the porn from the website would be used to take them to court.

Provision of credit card details is the condition required by the operator of the website containing the 'porn' to gain access to their website. On receiving those credit card details they would have issued something exactly equivalent to the password given by Alban Fellows.

The operators of the site already possessed indecent photographs of children [40] , they possessed them with the intention of showing them to others [41] , and they had placed advertisements indicated that they showed such photographs. [42]

Using a credit card to gain access to a website containing indecent photographs of children is not an offence. The only charge that could possibly cover the facts is incitement to distribute.

In Race Relations Board v Applin (1973), the Court of Appeal held that the defendants had 'incited' unlawful discrimination - the word 'incite' was not limited to advice, encouragement or persuasion of another to do an act but included threatening or bringing pressure to bear on a person.

How do you encourage or persuade (never mind threaten) a person to do something, when they are already doing it and have made the fact perfectly clear?

Furthermore, it is possible that their operation was completely automatic: the credit card transaction would not be dealt with by a person but rather a computer would processes it and issue the password. The computer would have been intentionally set up to do this. No amount of external influence (save with a hammer) would change its behaviour - it would continue to accept requests, process the credit card details in the request and, depending on the answer given by the credit card company's credit limit check (if such check took place), automatically give out passwords and access details.

Such an automaton is not amenable to persuasion; does not understand what it means for a thing to be illegal; cannot be incited.

The operator of the site in Operation Ore did not distribute; he did not show [43] - he possessed with a view to showing. [44]

If operating such a 'paedophile website' in such a manner means one is guilty of 'possession with intent to show' rather than 'showing or distributing', no other person can be guilty of incitement to distribute.

If a person who has paid by a credit card to access such a website is convicted of 'incitement to distribute indecent photographs of children', it will be clear evidence of a witch-hunt to punish 'paedophiles'.

The meaning of incitement is being bent to fit the circumstances. The value of the 'literal rule' comes from the fact that the law is meant to have a predetermined meaning - the words are not meant to be so general or plastic that they can be interpreted to fit whatever circumstances apply when the authorities wish to punish someone. [45]

There is a long history of incitement in the common law; making it fit a circumstance where there either is no person to be persuaded, or the person said to be 'incited' is already well persuaded would be ample demonstration that the law is being used as a flexible tool of control.

Townshend IS a paedophile. He has been cautioned for an offence that makes him subject to the notification requirements of the Sex Offenders Act; logically, the only thing he can have been cautioned for is 'incitement to distribute an indecent photograph of a child' which means he would have been sentenced as if he committed the offence incited - that offence is a sexual offence against a child.

Townshend has sexually offended against a child. He IS a paedophile.

However, the police carrying out Operation Ore will have committed exactly the same offence. [46]

If Pete Townshend commits the offence, he is a paedophile.

If the policeman commits it, he is not a paedophile.

Such action, therefore, cannot be an act that makes you a paedophile - it is your intention in carrying it out that determines whether you are a paedophile or not.

What did Pete Townshend intend?


Notes

[1] 11 January 2003: Pete Townshend's statement in full , BBC News
[2] 14 January 2003: Who star Townshend bailed , BBC News. Was Townshend arrested or not? His lawyer, John Cohen, told reporters that he and his client had 'met with police… and said that we should meet... by mutual agreement.'
[3] 11 February 2003: Townshend victim of 'witch-hunt' , BBC News
[4] 18 January 2003: Calm the witch-hunt - Even child porn suspects have rights , The Guardian
[5] 7 May 2003: Caution lifts clouds over Townshend , BBC News
[6] NAMBLA - North American Man Boy Love Association, www.nambla.org
[7] 7 May 2003: Caution for Who star Townshend , BBC News
[8] To prove a person guilty of possessing an indecent photograph of a child, you have to show what they possessed; to prove them guilty of making it, you must show what was caused to exist.
[9] 14 January 2003: Townshend arrested over child porn , The Guardian
[10] Mick Farren, AVN (AVN online?), (March?) 2003: They Call Me the Seeker.
[11] The Protection of Children 1978 Act , my own website (but it is the only place where the Act can be found online)
[12] R v Bowden (1999).
[13] R. v. Jayson (2002) where the Court of Appeal held that 'the act of voluntarily downloading an indecent image from the internet to a computer screen was an act of making a photograph or pseudo-photograph because the computer's operator, in so downloading, was causing the image to exist on the screen'.
[14] The Criminal Justice Act, 1988 , HMSO website
[15] If it had been necessary to treat computer files downloaded from the Internet differently to photographs contained in a magazine or video smuggled into the country, Parliament could have made this provision in plain words. It did not. See my discussion of this as Operation Awful or stated more briefly on my startpage . I am beginning to wonder if the misapplication of the Protection of Children Act in isn't perhaps the most vicious feature of this witch hunt. It is probably more appropriate characterise 'Operation Awful' by use of 'incitement to distribute'.
[16] Cleared? Presumably there was insufficient evidence…
[17] Since he was placed on the 'sex offenders register' he must have committed an offence making him subject to the notification requirements found in Schedule 1 of the Sex Offenders Act 1997 ; of the available options, 1(1)(d) and (f) sound most likely:
1(1)(d) an offence under section 1 of the Protection of Children Act 1978;
1(1)(f) an offence under section 160 of the Criminal Justice Act 1988.

8 May 2003 Pete Townshend put on sex offenders register , The Guardian

[18] R. v. Gregory (1867). Also, an inciter 'is one who reaches and seeks to influence the mind of another to the commission of a crime' (S v Nkosiyana (1966), quoted in Smith & Hogan, Criminal Law, 8th ed., Butterworths, 1996, p. 273)
[19] Race Relations Board v. Applin (1973).
[20] Of DPP v Armstrong (1999) CA http://www.policelaw.co.uk/cases.htm says 'in this case an undercover police officer was the person incited to distribute indecent photographs of children. The magistrate in the original case held that there was no case to answer as the police officer had no intention of distributing any photographs. Held: the actus reus of the offence is the incitement of another and it is irrelevant that the other held no intention of carrying out the act incited.'
[21] R. v. Curr (1968) 2 QB 944, where the Court of Appeal held that the trial judge had erred in not directing the jury to consider whether the people incited had known that what they were being asked to do was unlawful.
[22] It is an offence under Section 1(1)(b) of the Protection of Children Act to 'distribute or show such indecent photographs'.
[23] DPP v Armstrong [2000] Crim LR 379. The paragraph included in this webpage is a straight lift from the online updates page for Criminal Law, Elliot & Quinn, 3. ed, Prentice Hall.
[24] 'Love Locked Out', 1889, Anna Lea Merrit, Tate Gallery . The image included here and the text below it (especially), are taken from The Curator's Choice's review of There's more to the Victorians than meets the eye exhibited by 'the Tate Britain' at the Brooklyn Museum of Art (6 Sept 2002 - 5 Jan 2003) which surveyed 'the full range of representation of the male and female nude during the reign of Queen Victoria'.
[25] You would be OK sending it to me; I am OK including it on this site; you are OK looking at it by 'downloading it to your screen'. I deliberately chose a painting for this reason. I could have linked to the cover photograph of the Penguin (US) edition of Thomas Mann's 'Death in Venice' at Amazon.com - but I don't know if it is an indecent photograph of a child.
[26] R. v. Graham-Kerr (1988) WLR 1098. A boy of seven was at the swimming baths with his parents. The general public were not admitted to the baths that evening as it was reserved for nudists. Some photographs were taken by the official photographer with the permission of the parents. G-K with his own camera took two pictures of the boy in the changing rooms without the parents' knowledge or permission.
[27] Court of Appeal in R. v. Graham-Kerr: - On the question of whether the photograph was or was not indecent, the jury had to apply the test as stated by the judge, or as stated in R. v. Stamford, by applying the recognised standards of propriety. In other words the question of whether or not the photograph was indecent or not is a matter for the appraisal of the jury applying those standards."
[28] Online search engine www.google.com
[29] How do you use a search engine like Google (which has a particularly sparse startpage) without typing a phrase to search for? Is he trying to imply that Google incited him to look at paedophile-porn? That he didn't even go looking for it?
[30] Netcraft is an Internet services company based in Bath, England.
[31] 'Shopping centre' = 'server' Netcraft collects and collates as many hostnames providing an http service as they can find, and systematically polls each one with an HTTP request for the server name. How many websites (shops) are those servers hosting? Unknown, but there are Big Shopping Centres and little ones
[32] R v Fellows; R v Arnold (1997) , my website.
[33] An offence under s.1(1)(b) of the 1978 Act.
[34] An offence under s.1(1)(c) of the 1978 Act.
[35] Steven Arnold was convicted of three offences of distributing or showing indecent photographs of children contrary to s 1(1)(b) of the 1978 Act.
[36] Townshend went on to use the standard emotive language of the anti-porn crusader: 'this was not smut. It was a depiction of real rape. The victim, if the infant boy survived and my experience was anything to go by, would probably one day take his own life.'
Why, then, on a later date (and on only one occasion), did he use his 'credit card to enter a site advertising child porn… purely to see what was there'? He had already seen.
[37] Maybe this confession was the sufficient evidence necessary to caution Townshend…
[38] 11 March 2003, Media helping paedophiles escape charges, say police , The Independent. Article cut in the interests of profits. I normally try to use only free access news, but I liked the copper blaming everything on the 'reckless actions of the media'.
[39] 18 January 2003, FBI's new list of British paedophiles , Daily Mirror.
[40] An offence under S.160 of the 1988 Act.
[41] An offence under S.1(1)(c) of the 1978 Act, as established in R. v. Fellows on analogous facts.
[42] An offence under S.1(1)(d) of the 1978 Act.
[43] An offence under s.1(1)(b) of the 1978 Act.
[44] An offence under s.1(1)(c) of the 1978 Act.
[45] I.e. the concept of 'legal certainty', enshrined in article 7 of the European Convention on Human Rights and Fundamental Freedoms
[46] See S.51 Criminal investigations or proceedings of the Sexual Offences Bill 2003 where (for the first time) a defence for the police to commit the 'making indecent photographs' offence is drafted. The drafting of this defence NOW is ample acknowledgement that every police officer who has 'made' such an image since 1994 has committed an offence under s.1(1)(a) of the Protection of Children Act.