Some implications of the decision in R v Bowden (1999)

including the impossibility of electronically distributing an indecent photograph.

Apparently, his computer had been discovered to contain indecent photographs of children on its hard drive when it was taken in to a computer store to be repaired.
It has been alleged that police have instructed some computer repair companies always to search a computer brought in for repair in order to check whether it contains indecent photographs of children.

In Fellows & Arnold (R v Fellows; R v Arnold [1997] 2 All ER 548) it had been held that an computer file was a 'copy of a photograph' for the purposes of PCA when it contained data that could be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original indecent photograph of a child from which it was derived.

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 stored on (or downloaded to) the computer was a 'copy of a photograph' that had been 'made' (i.e. caused to exist) by the act of downloading.

'To make' was said to bear its literal meaning of 'to cause to exist'.

The law.

Section 1 of the Protection of Children Act 1978 provides 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 ...

Bowden possessed indecent photographs of children, which itself was contrary to s. 160 of the Criminal Justice Act 1988 (CJA). S.160 CJA offences were at that time triable summarily, and thus subject to a 6-month time limit for matter to be brought to a conclusion.
One might suppose that the police had (in their usual, efficient manner) exceeded the 6 months they had to deal with the matter: there would thus be nothing to lose by charging Bowden with 'making' - if he had been acquitted, they would had been 'out of time' to bring possession charges anyway.

But the Court of Appeal was asked to consider whether or not the amendments made to PCA criminalised the act of “making a photograph”. Since making a photograph by downloading it would already lead to an offence under the CJA, was it really necessary to assume that Parliament had created a new offence covering the same facts? Whatever the reason, this 'making' decision also had the 'useful' side-effect that images displayed on a computer's screen are 'made'.

R v Graham Westgarth Smith; R v Mike Jayson
(CA, [2002] EWCA Crim 683, No.2001/00251/Y1), 7 March 2002

Before the Court of Appeal in 2001, the crown submitted that the positive action of causing a photograph to be downloaded from a web page on to the screen involved the making of a photograph.

Lord Justice DYSON agreed - concluding that giving to the word "make" its ordinary and natural use of language, as in Bowden, means 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.

But an image cannot be downloaded onto a computer screen. It CAN (and indeed MUST) be downloaded to the computer's hard disk (into the cache) or into its memory (RAM). The hard disk or RAM would then contain the data constituting a 'copy of the indecent photograph' (which would have been 'made' by the act of downloading).
This copy MUST be present in order for the image to be displayed on the computer's screen.

Furthermore, neither can this downloaded copy be displayed on the computer's screen. It is in a portable format (i.e. it can be downloaded to any type of computer, which might have any one of a number of possible graphic adaptors) and must be converted into signals that can be fed to the display in order to make it show an image.

So, if Bowden is correct (which it is not), the act of displaying an image on a computer would be an additional act of 'making an indecent photograph', over and above the offence committed in the act of downloading the copy from the Internet, whether the downloaded copy is held in permanent (disk) or temporary (RAM) storage.
A person viewing an image on the computer screen commits (at least) TWO separate offences.

This 'viewing = making' decision has the implication that ANY indecent photograph of a child displayed on a computer screen is made in the act of displaying, regardless of being downloaded from the Internet or retrieved from the computer's storage.

This has the 'useful' result that a person who has received an email containing an indecent photograph of a child would be guilty of the offence of 'making' when the image is displayed on the screen.

The Court of Appeal held that "person is not guilty of an offence of 'making' or 'being in possession' of an indecent pseudo-photograph contained in an email attachment if, before he opens the attachment, he is unaware that it contains or is likely to contain an indecent image."

The mens rea was that the act of making should be a deliberate and intentional act with knowledge that the image made was, or was likely to be an indecent photograph or pseudo-photograph of a child.

Smith
Smith was convicted of one count of making an indecent pseudo-photograph of a child. The police had found an email with attached images that showed a naked girl called Eva, apparently taken by her mother, an internationally renowned photographer.

Smith's defence submitted that

"upon the proper construction of section 1(1)(a) of the Act the appellant had not 'made' a pseudo-photograph within the meaning of that provision by simply opening an attachment to an email and looking at the images without doing more."

Smith had requested that the image be sent to him. Why then was he not charged with 'incitement to distribute'?

One might cynically suggest that this places too much of a demand on the police to prove a case. Where a person is found to have an email that has attached an indecent image of a child, the police would have to prove that the person had requested the image be sent to prove a charge of incitement. Far too much like hard work, probably, especially when courts desirous to convict are prepared to accept the creation of new offences (making) for the benefit of the prosecution.
Why not charge the person with possession? Again, the police would have to prove an additional fact - that the image had been knowingly kept.
This requirement also applies to the charge of 'making', since the police would have to prove that the image had actually been knowingly viewed.

Jayson
Mike Jayson pleaded guilty to 7 counts of making an indecent photograph of a child in the Crown Court in Luton in October 2001. In August 2000, the police found indecent photographs of children in the cache on Jayson's computer. The cache had been automatically emptied by the system BEFORE the computer was seized by the police but the images had been retrieved by a prosecution computer technician.

The trial judge ruled that browsing the Internet for indecent photographs of children amounted to the making offence if it resulted:

• in an image being displayed on the computer screen of the browser, or
• the automatic downloading of the image to a temporary cache, provided that there was the requisite mens rea.

The prosecution had argued that
(a) searching the worldwide web and selecting images to appear on the computer screen was sufficient to amount to 'making'; or
(b) the fact that images were stored automatically in the temporary cache amounted to 'making'.

The prosecution argued that 'the positive action of causing the photograph to be downloaded from the web page on to the screen involves the making of a photograph' and that this is 'analogous to copying in that it is replicating the image from the web'.

Moreover, the storage of the images in the cache for a finite period of time was irrelevant as these were still viewable and might have been stored there to evade liability.

Defence argued that:

"in order to be guilty of the offence of making a photograph or pseudo-photograph by causing data to be stored on a computer disk, the necessary mens rea is that an offender must intend to store and intend to retrieve the material subsequently."

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".

The Court, following section 7(4)(b), said PCA requires that data stored on a computer disc or by other electronic means be capable of conversion into a photograph NOT that the stored data be retrievable.

Jayson had downloaded the images from the web. They were stored in his cache. He was an experienced computer user and admitted that he knew how the cache system worked. Why not then charge him with possession?

Perhaps, being cynical once more, this would place too much of a burden on the police. Where they have found a computer that, like Jayson's, had images on it that had been deleted from the cache (as opposed to being stored in a directory of the users' choice), but the person says nothing, the police would have to prove that the person knew how the cache system worked. It would not be enough to strongly suggest that the person knew this.

But on the particular facts, Jayson could have been found to have been in possession of the images anyway: he had sought them out, and for some time they had been stored on his computer, and he knew that they were stored there (since he knew how the cache system worked).

Why charge a person with 'making' where a charge of 'possession' would cover the facts perfectly well?

This decision effectively excludes the decision in Atkins that "Possession" under s.160 Criminal Justice Act 1988 required knowledge in accordance with general principles of law (Atkins v Director of Public Prosecutions (2000) 1 WLR 1427).
Where a person has knowingly searched the Internet for indecent photographs of children, the "making" offence has been committed (because of the images "made" on the screen) even though there might be insufficient evidence to prove a charge of possession.

But where the same facts prove both "making" and "possession", why prefer "making"?

One might posit that, where the same facts prove guilt for two offences, justice requires that the person be charged with the more serious offence. Certainly it is commonly held that it is oppressive to charge the person with both offences, at least where the lesser offence is automatically committed as a stage in committing the greater offence. However, people ARE being convicted of possession AND making, although it is not possible to ascertain whether they "made" and "possessed" the same images.

If it is the case that justice prefers the greater charge, then the Bowden decision, supported by the Jayson decision, means that it is not possible to distribute indecent photographs of children that are stored by electronic means save by physically giving another person the disk or electronic device containing the images.

Impossibility of distributing an indecent photograph electronically

Graham Westgarth Smith had been emailed an indecent photograph of a child. However, the person who sent this image did not distribute it - they made it by sending it to him. At no time did the person who sent Smith that email "part with possession" of the image they "distributed".

1. When composing the email that they intended to send to Smith, the sender would have attached an image of their selection. Their email client would then have taken a copy (1) of this original file, converting it into a form suitable for inclusion in an email.

2. Then, at some later time after they had connected the computer to the internet, their email client would contact their email service provider's server to upload a copy (2) of the email.

3. Subsequently, their email service provider's outgoing mail server would connect to the recipient's email service provider's mail server and transfer a copy (3) of the email to it.

4. When the recipient's email client connects to the recipient's email service provider's mail server, it downloads a copy (4) of the email, storing it in its "inbox".

Actually, it is not easily determinable how many copies are created in the third stage (i.e. the sender's email service provider's server transferring the email to the recipient's email service provider's server), since there may be intermediate servers (for example, the intended destination might be temporarily unavailable).

So, as can be seen, at least 4 copies of the indecent photograph are caused to exist by the sender's actions.

If the charges of "making" are preferred over charges of "possession" for reasons of justice (or for ANY other reason; if there IS a reason it must apply analogously here), then charges of "making" must be preferred over charges of "distributing" where an image is distributed electronically.

Actually, it is disingenuous to say that it is impossible to distribute: if a person knows nothing of how the email system works, then they would think that they had distributed and I am sure that they would be charged with distribution AND convicted, despite the fact that they had actually committed the making offence.
It would not be possible to prove that a making offence had been committed since the image would not have been made in a deliberate and intentional act.

A person who has emailed an image not knowing how the email system works would be unfairly convicted of distribution.

A person who attaches an indecent photograph of a child to an email system commits the making offence instead of the distribution offence.
The more that person understands the workings of the email system, the greater the number of offences committed.

Sender's computer system

Sender's email provider's server

Recipient's email provider's server

Recipient's computer system

Composes email

Selects image to attach

Computer converts image into a form it can include in the text of email

Sender's computer uploads email to provider

Sender's provider stores email as an outgoing email

Sender's provider transfers email to recipient's provider

Recipient’s provider stores email in recipient's collection box

Recipient's computer connects to recipient's email provider

Recipient's email client downloads email and stores it in Inbox

COPY caused to exist as a result of sender's action

COPY caused to exist as a result of sender's action

COPY caused to exist as a result of sender's action

COPY caused to exist as a result of sender's action

Stored on hard drive in sender's computer or possibly in computer's RAM

Stored on server's hard drive or possibly in its RAM

Stored on server's hard drive or possibly in its RAM

Stored on hard drive in recipient's computer or possibly in computer's RAM

= Sender's first offence = Sender's second offence = Sender's third offence = Sender's fourth offence = Recipient's first offence

And if the recipient knowingly displays the image contained in the email, the recipient commits an offence. COPY caused to exist as a result of recipient's action