Incitement to distribute or show indecent photographs of children

On 13 January 2003, Pete Townshend was arrested on suspicion of possessing, making and inciting the distribution of indecent photographs of children following his admission that he paid to enter an Internet site containing child pornography.^[1]

He was cautioned at Kingston police station in London on Wednesday 7 May 2003.^[2]

The caution followed a four-month investigation, during which Mr Townshend was cleared of the possession and making offences. Presumably, he was cautioned for the incitement offence.

At first sight such incitement charges seemed absurd - one cannot incite an automaton.^[3] It was commonly thought that such incitement allegations were used only in the application for a search warrant and then allowed to quietly die. Indeed, in the many cases where indecent photographs of children were found following execution of such search warrants incitement charges were dropped.

However, it became clear that such charges were being proceeded with, even in cases where there no indecent photographs of children had been found.

Now that some detailed information exists it is possible to examine the charge. It can be shown that there is much confusion in law enforcement circles. Where those enforcing the law are unsure what the law is, there can only be injustice.

Incitement ^[4]

Incitement is, in origin, a common law offence. However, it "is not widely used by prosecutors in England". ^[5] It is an offence to incite another person to commit a criminal offence even though that other offence has not been committed or even attempted. ^[6] At common law, for there to be incitement there has to be both some form of communication with a person whom it is intended to incite and, in that communication, some attempt to persuade or encourage that person to commit a criminal offence. ^[7] However, for there to be incitement at common law it is not necessary to prove that the person who it was attempted to incite was in fact affected by the attempt, and incitement may exist even though the attempt was unsuccessful. ^[8] Moreover the persuasion inherent in the incitement can be implicit. ^[9] The incitement does not have to be directed towards a specified person or group of persons but, rather, may be general. ^[10] To be guilty of incitement one must normally intend that the offence that is being incited will be committed, but sometimes recklessness as to whether or not the offence is committed will suffice.

Incitement is committed only where the solicitation, express or implied, comes to the notice of the person or persons whom it is intended to incite. However, a person may be liable for an attempt to incite where the communication containing the solicitation does not reach the intended recipient, for example, where a letter is intercepted. ^[11]

To be guilty of incitement, the accused must intend that the offence incited be committed and that any consequence in the actus reus result. ^[12] In addition to intending to incite, the accused must know (or be wilfully blind as to) all the circumstances of the act incited which make it an offence. One such circumstance is the mens rea of the person incited. If the accused believes that the person incited will not have mens rea for the crime in question, he will not be guilty of incitement.

The O'Shea case

O'Shea was charged with three offences of unlawfully inciting another to distribute an indecent photograph of a child, contrary to common law, and three offences of attempting to incite, contrary to the Criminal Attempts Act 1981.

He appeared before the District Judge at Coventry Magistrates' Court and was committed to the Crown Court for trial. O'Shea sought a judicial review of this decision, partially on technical grounds regarding the status of the evidence against him, but also on the grounds that the evidence did not reveal an offence, submitting that there can be no incitement of a machine.

The evidence contained a breakdown of what it is alleged were successful and unsuccessful attempts by the claimant to enter the websites; this information was obtained from the Landslide database.

Presumably, the incitement charges were based on the successful entries and the attempted incitement charges on the failed attempts.

In the reasons for refusing O'Shea's application for judicial review ^[13], Mr Justice Gage explains at paragraph 38 why he thinks that the evidence reveals an offence:

The computers were used to facilitate the business, and […] it is irrelevant to say that it was only the computer which was encouraged to commit the crime. The fact of the matter is that those lying behind it […] were operating a business. By subscribing through the means of the computer, the claimant was, in my judgment, at least for the purposes of a prima facie case, established as inciting someone, namely those lying behind the onus of the company, to commit the offence. Accordingly, in my judgment, it matters not that the process was entirely automated by means of a computer.

The Grout case ^[14]

The case of Dr Paul Grout was heard at Hull Crown Court on 21 April 2004. ^[15]

Dr Grout was arrested at Hull Royal Infirmary in October 2002 after his credit card details were investigated as part of the Operation Ore inquiry into the Landslide child pornography portal.

He was charged with two counts of attempting to incite the distribution of indecent photographs of children and two counts of inciting the distribution of indecent photographs of children.

Part of the evidence against Dr Grout consisted of entries from the Landslide database: two entries showed failed attempts to subscribe, two showed successful subscriptions. The two failed attempts to subscribe formed the basis of the two attempted incitement charges.

Dr Grout denied all four charges and no images of child pornography were ever found on any computers used by him.

Judge David Bentley ordered the jury to find the defendant not guilty on the grounds that it was not possible to exclude the possibility that someone else had used Dr Grout's credit card details. The judge's instructions to the jury were also based on his determination that the charges were "bad in law", holding that in the circumstances of the case there was incitement but not attempted incitement. Since the attempted incitement charges were associated with failed attempts to subscribe to Landslide and these failed attempts had been recorded on the Landslide database, it was self-evident that the subscription requests had been received by the intended recipient. The offence should therefore have been specified as incitement.

Furthermore, the charges were duplicitous. . The offence being incited in each count was the showing or distributing of indecent photographs. Since 'showing' and 'distributing' are different offences, an indictment reading "distributing or showing an indecent photograph of a child" is bad for duplicity

The charge of inciting the distribution or showing of an indecent photograph of a child

O'Shea submitted that the evidence against him did not reveal an offence since there can be no incitement of a machine - there must be incitement of a human being.

Mr Justice Gage's answer to this was that "by subscribing through the means of the computer, [O'Shea was] established as inciting someone, namely those lying behind the onus of the company, to commit the offence."

Incitement is committed only where the solicitation, express or implied, comes to the notice of the person or persons whom it is intended to incite. Is there any evidence that the human beings being incited - the individuals behind the company - actually received these communications?

It was assumed in the Grout case that the successful subscriptions represented incitement. However, the evidence does not reveal that the intended recipient ever received the communication said to have been sent by Dr Grout. All the same, this communication resulted in a charge to Dr Grout's credit card.

Does this charge prove that the communication did in fact reach its intended recipient?

No - the system was entirely automated. At paragraph 13 of the O'Shea decision, Mr Justice Gage quotes without challenge the defence submission that "All transactions between Landslide, the webmasters controlling the hyperlink web pages and the subscribers to the hyperlink web pages were entirely computer-operated, requiring no interactions between human beings." ^[16]

The evidence only reveals processing carried out by computer. It is trite law that there must be incitement of a human being; there can be no incitement of a machine.

This means that Judge Bentley was wrong in the Grout case. Since there is no evidence that the communications in fact reached their intended recipients - the individuals behind the company - the indictments should have specified only "attempted incitement".

According to section 1(1) of the Criminal Attempts Act 1981, a person is guilty of attempting to commit an offence when he does an act "which is more than merely preparatory to the commission of the offence".

The two incitement charges faced by Dr Grout related to successful subscriptions. As we have seen, the evidence can only possibly support charges of attempted incitement. But what differed between the facts supporting the incitement charges and those supporting the attempted incitement charges? Did the communications giving rise to the attempt charges go somewhere different? Were they not processed? No; it is self-evident that all of the communications reached and were processed by the Landslide computer since it recorded the requests in its database, along with the success or failure of the request. ^[17]

Whoever made the requests did something more than merely preparatory: the communications giving rise to the incitement charges and those giving rise to the attempt charges all reached their intended destinations - the Landslide computer.
Whatever they did in fact do, the act was complete.

For there to be incitement there has to be some form of communication with a person whom it is intended to incite. In no event did a communication reach the people "behind" the computer.

To be guilty of incitement, the accused must intend to incite and must know the circumstances of the act incited that make it an offence. Whoever sent the communication intended only that it reach the Landslide computer. They neither intended nor expected subsequent human intervention; they expected the computer to allow them access to images.

Furthermore, an examination of the content of such a communication would reveal no attempt to persuade or encourage a person to show or distribute indecent photographs of children - it would contain only personal data: name, address email address, and also financial information such as credit card details.

One of the circumstances the accused must know of is the mens rea of the person incited. If the accused believes that the person incited will not have mens rea for the crime in question, he will not be guilty of incitement.

The accused expects to be dealing only with the Landslide computer. He does not expect Thomas Reedy to be sitting at a desk going through a list of new subscriptions, replying with attached indecent photographs of children. Thomas Reedy (and the others behind Landslide) were simply allowing subscribers to access archives of child pornography; after collecting charging data and making a charge to a subscriber's credit card, Reedy's further involvement was entirely passive.

In 1997, the Court of Appeal upheld the conviction of Alban Fellows ^[18] 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. ^[19] He had used the his employer's computer to host an archive of indecent photographs which he made available to people to whom he had given a password.

Owen J, the trial judge in the Fellows & Arnold case, had recognised that distributing might require something more active than anything Fellows had actually done; the Court of Appeal accepted defence counsel’s suggestion that showing is active rather than passive.

Thomas Reedy was in a situation exactly analogous with that of Fellows: each possessed indecent photographs of children with a view to their being distributed or shown by himself or others. Where Fellows required pornographic pictures to be sent to him as the condition for giving a user access to his library, Reedy required payment. There is no other difference.

Landslide subscribers expected to be given access to the images and themselves take copies of them. This is borne out by the charges of making indecent photographs of children that would have been laid against them had such images been found.

So, not only did Landslide subscribers have no expectation that Reedy was going to actively show or distribute but, since he would have done no such thing, he would not have been guilty of that offence under UK law.

Furthermore, as a result of the decision in R v Bowden ^[20], it is impossible for the person being incited to distribute.

In R v Fitzmaurice, the Court of Appeal held that incitement to commit an offence could not be committed where it was impossible to commit the offence alleged to have been incited. Accordingly, it was necessary to analyse the evidence to decide the precise offence which the defendant was alleged to have incited and whether it was possible to commit that offence.

The evidence does not reveal that Landslide customers incited the Landslide operators to distribute indecent photographs of children. However, let us examine the charge to see if it is possible for the operators of Landslide to commit the offence.

In Fellows & Arnold it was held that a computer file was a "copy of a photograph".

In Bowden it was held that downloading an indecent image of a child from the Internet was sufficient to constitute an act of "making an indecent photograph of a child" since the image downloaded to the computer was a "copy of a photograph" that had been "made" (i.e. caused to exist) by the act of downloading.

In R v Jayson, ^[21] the Court of Appeal ruled that "the act of voluntarily downloading an indecent image from a web page on to a computer screen is an act of making a photograph or pseudo-photograph".

If a Landslide employee were to attempt to show or distribute a file containing an indecent photograph of a child to a Landslide subscriber as it is alleged the subscriber is inciting them so to do, they would actually cause a copy of the file to exist. ^[22]

If distributing by email, the Landslide employee would have to select the images to be sent and attach them to an email. This email would then be transferred to Landslide's ISP, thereby causing a copy to exist (rather than actually being transferred).

If distributing in some other way (FTP, HTTP, etc), the mechanism would be exactly equivalent to the process of downloading an image from the Internet, save in reverse. Apart from being slightly un-idiomatic, it might be described as uploading rather than downloading.

In neither case is the file distributed in a traditional sense. At a high level of description, the sending computer connects to the recipient computer and starts to read the data contained in the file it has been instructed to transfer one part at a time. It then transmits a copy of the data it reads. Every piece of data received by the recipient computer is a copy of the information that left the sending computer, which is stored by the recipient computer until every part of the data has been transmitted. The data stored on the recipient computer is a copy of the data sent by the sending computer. The transmission is then terminated. At a lower level of description, the transmission between the two computers is not direct. The information is transferred in small units called packets. Each packet is passed between an indeterminate number of intermediary computers. Each packet makes its own way to the recipient with no two packets necessarily travelling the same route nor arriving in the correct order.

As The Law of Freedom of Information explains

Information travels, documents don't: ^[23] Each link in the chain of computers involved in the transfer receives one or more "packets" consisting of part of the information being sent and then copies each packet for onward transmission. The packets received are discarded at each transmission point. The copied packets are typically sent to a number of locations for simultaneous onward transmission and any of these copies (or rather copies of those copies) may form part of the document received by the ultimate recipient computer. This feature of the Internet, that is, that despite appearances no document is ever transferred from A to B, may produce the need to rethink many legal concepts and reinterpret many statutory provisions in so far as they are applied to Internet communications.

It is therefore not possible to incite them to distribute or show.

Furthermore, since the subscriber believes that he himself will connect to the sites and download the files therein under his own control, the subscriber does not have the necessary intention of inciting Landslide operators to distribute or show.

To be guilty of incitement, the accused must have intended to incite the person it is alleged they incited and they must also intend that the offence it is alleged they incited be committed, with any consequence specified in the actus reus resulting. One such circumstance they should know of is the mens rea of the person incited. If the accused believes that the person incited will not have mens rea for the crime in question, he will not be guilty of incitement.

A landslide subscriber would have believed that he was himself operating a computer. He would not have believed that a person would process his request and send him indecent photographs of children. He could not therefore believe that a person had the necessary mens rea; he is not guilty of incitement.

Unsurprisingly, the actus reus of showing or distributing an indecent photograph of a child includes a person showing or distributing such a photograph. If an accused never believed that a person would so show or distribute, he is not guilty of incitement.

At paragraph 34 of the Court's decision, Mr Justice Gage cites paragraph 26 of Goldman ^[24], in which Clarke LJ cites a passage of Armstrong: ^[25]

In our judgment the Crown has satisfied the test for incitement approved by the Divisional Court in DPP v Armstrong (unreported, 5th November 1999). Lord Justice Tuckey with whom Moses J agreed said this:

The nature of the offence of incitement is accurately defined in the draft Criminal Code produced by the Law Commission in their paper No 177 at clause 47 which says:

A person is guilty of incitement to commit an offence or offences if --

1. he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and
2. he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences.

1. the person allegedly being incited would not go on to perform any act that would constitute a criminal offence; rather, the person inciting would himself perform a criminal act (making an indecent photograph of a child); and
2. the person inciting another was not expecting the other to act at all.

While the Court cites Goldman without further comment, and the CPS & police depend heavily the precedent set by it, it should be noted that Goldman can be distinguished from Ore-type cases since Goldman's order for child pornography videos would have been processed by a human being.

At paragraph 39 of the O'Shea decision, Mr Justice Gage says "it seems to me that the prosecution case is correct when it is submitted that by subscribing, the claimant actually encouraged or was inciting the business to continue to the profit of the individuals."

Is this enough for incitement?

Mr Justice Gage accepts that Landslide was fully automated - when a person subscribed, he was dealing only with a computer. After a subscription request was authorised by the computer, the subscriber immediately gained access to the images. The evidence does not reveal that the operators of Landslide reviewed the subscriptions to the site. Therefore it is not proved that those allegedly being incited ever knew of incitement by any individual accused - it cannot be said that the subscription by any particular individual encouraged Landslide's operators to continue the operation. The sole condition that encouraged them to continue was profitability. This state is not a communication from the accused to the person being incited. Overall profitability is far too amorphous a thing to support an individual charge of incitement, even if such a charge were possible; if a particular subscriber did not in fact subscribe, the Landslide site would presumably have been only slightly less profitable. It cannot be right to convict a person of incitement when their total non-involvement in the enterprise would have had exactly the same measurable effect on Landslide's operators. Nor can it be right to convict a person when their alleged incitement could only come to the attention of the people being incited AFTER the occasion of the only criminal offence resulting from the so-called incitement (the making offence committed by the subscriber). Nor can it be right to convict where the person being incited never knows of the person said to be inciting them or ever come into contact with their so-called communication.

Given that the person allegedly being incited to show or distribute is expected neither to show nor distribute, and would in fact do no such thing, if the consideration of the overall profitability situation of the company is sufficient to amount to incitement in any individual case, the only offence that could be said to be incited is continued possession. This is not the offence that the incitement charges allege were incited.

The Townshend story was a sufficiently high profile case that the media sought out "experts" for their comment. On BBC News Online, John Carr "explained" the legal position for web users, saying that a crime is "committed if someone registers their credit card details with a child porn site, as this shows they have deliberately looked for such images. They could face a custodial sentence of up to five years." ^[26]

Since there is no specific offence of deliberately looking for indecent photographs of children, one must assume that he is talking of an incitement offence.

The only "child porn" offence that carries a maximum 5-year sentence is possession. Was Carr saying that the offence of "deliberately looking for child porn images" was incitement to possess?

Confusion

On the facts of a case such as that of O'Shea, which offence is being incited?

In Fitzmaurice, ^[27] the Court of Appeal held that it was necessary to analyse the evidence to decide the precise offence the defendant was alleged to have incited.

In the case of Dr Grout, Judge David Bentley came to the incorrect conclusion that the indictments should have detailed "incitement" and not "attempted incitement".

Judge Bentley also stated that the indictment should specify whether distribution or showing was being incited.

This in itself suggests that the prosecution never did examine the evidence to determine which offence was being incited.

The fact that the evidence reveals that the communications all reached their final destination but does not reveal that they were ever seen by any human being means that the indictment should have actually detailed attempted incitement and not incitement.

A person so indicted with attempted incitement would, however, not expect the person they are said to be inciting to commit either the showing offence or the distribution offence, and nor would the person said to be incited ever in reality commit either offence. Nothing in the evidence suggests otherwise - the prosecution and the court accept that Landslide was fully automated. Therefore the person so accused would not be guilty of incitement.

The only incitement charge that the general profitability consideration might support is incitement to possess. Since subscribers would already believe Landslide possessed indecent photographs of children, they cannot be inciting someone to possess since they would not believe that their subscription would lead to new possession. The prosecution might argue that they subscribe in order to encourage the production and subsequent possession of new material. But such an argument does not support charges of incitement to distribute. If it supports anything, it supports only incitement to produce. The fact that they do not charge this suggests that they do not believe the link is strong enough.

Distribution or showing is the offence that at first sight appears to be the offence that is being incited. It can be shown that neither the prosecution nor the courts has analysed the evidence to determine whether or not it supports that charge. The courts are, therefore, not performing their legal obligation of ensuring a fair trial.

Notes