Downloading indecent Net images is 'making' photographs

R v Bowden

(1999) The Times, November 19 Court of Appeal

The Facts

On the agreed facts, the exhibits referred to in the indictment were printouts seized from the defendant which had been 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, a printout made by the police of a pseudophotograph stored in a data file computer disk seized from the defendant, printouts made by the police of photographs stored in data files on computer disks seized from the defendant. Those data files were downloaded by the defendant from the Internet and stored by him on his own computer disks.

Bowden submitted through counsel that he was not guilty of "making" photographs contrary to the section, he was in possession of them but nothing more. The trial judge rejected those submissions and Bowden pleaded guilty.

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.

In its original form, the verb used in section 1(1)(a) was to "take". In 1988 by section 160 of the Criminal Justice Act 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 was enacted to amend particulars of existing legislation: see section 84 of that Act.

Similar amendments were made to section 160 of the 1988 Act by section 86(1) of the 1994 Act: see R v Fellows and Arnold (1997) 2 All ER 548, (1997) 1 Cr App R 244. In his Lordship's judgment, section 1 of the 1978 Act as amended was clear and unambiguous in its true construction. Quite simply, it rendered unlawful the making of a photograph.

As a matter of construction such a meaning applied not only to original photographs but by virtue of section 7 also to negatives, copies of photographs and data stored on computer disk.

His Lordship accepted the Crown Counsel's submissions that a person who either downloaded images on to a disc or who printed them out was making them. The 1978 Act was not only concerned with the original creation of images, but also their proliferation.

Photographs or pseudophotographs found on the Internet might have originated from outside the United Kingdom but to download or print within the jurisdiction was to create new material which hitherto might not have existed therein.

Accordingly, his Lordship concluded that despite the fact that the defendant had made the photographs or pseudophotographs for his own use, his conduct was clearly caught by the Act

The Decision

Downloading and/or printing of computer data of indecent images of children from the Internet was capable of amounting to an offence contrary to section 1(1)(a) of the Protection of Children Act 1978.

The Court of Appeal, so held in dismissing an appeal by Bowden, against his conviction at Crown Court but allowing his appeal against sentence of four months imprisonment, of offences contrary to section 1(1)(a) of the 1978 Act, after pleading guilty, following unsuccessful submissions, to counts of having "made an indecent photograph".

The four-month sentence, which had been ordered to be served concurrent to a prison sentence of three months for possessing an indecent photograph of a child under the age of 16 contrary to section 160 of the Criminal Justice Act 1988, was reduced to a 12-month conditional discharge.