CO/6342/2003
Neutral
Citation Number: [2004] EWHC 905 (Admin)
IN THE HIGH
COURT OF JUSTICE
QUEEN'S BENCH
DIVISION
DIVISIONAL
COURT
Royal Courts
of Justice
Strand
London WC2
Monday, 5th
April 2004
B E F O R E:
MR JUSTICE
GAGE
MR JUSTICE
KEITH
- - - - - - -
ANTHONY DAVID
O'SHEA
(CLAIMANT)
-v-
CITY OF
COVENTRY MAGISTRATES' COURT
(FIRST DEFENDANT)
THE CROWN
PROSECUTION SERVICE
(SECOND DEFENDANT)
- - - - - - -
Computer-Aided
Transcript of the Stenograph Notes of
Smith Bernal Wordwave
Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400
Fax No: 020 7831 8838
(Official Shorthand
Writers to the Court)
- - - - - - -
MR GB PURVES (instructed
by Barker Gillette) appeared on behalf of the CLAIMANT
MR D PERRY
AND MR D DESMOND (instructed by CPS Birmingham) appeared on behalf of the
DEFENDANTS
- - - - - - -
J U D G M E N T
(As Approved by the
Court)
- - - - - - -
Crown copyrightŠ
Monday, 5th
April 2004.
1. MR
JUSTICE GAGE: The claimant in this case,
Anthony O'Shea, is now aged 33. He seeks
a judicial review of a decision made by a district judge sitting in Coventry
Magistrates' Court on 4th November 2003.
The District Judge is the defendant, and he has not appeared before this
court. The interested party, the Crown
Prosecution Service, has appeared before the court.
2. The
background to the matter is as follows.
Criminal proceedings followed an investigation in the United States in
1999 when it was discovered that a commercial child pornography business,
operating from Fort Worth in Texas, was offering to supply child pornography to
internet users in the United Kingdom and elsewhere. The business was known as "Landslide
Productions Inc", hereafter "Landslide". It was established and operated by Thomas and
Janice Reedy, husband and wife, living in Fort Worth. A police investigation in the United Kingdom
uncovered evidence to demonstrate that child pornography websites operated by
Landslide were accessed by internet users in this jurisdiction and criminal
proceedings, we have been told, have been instituted against a large number of
individuals.
3. The
interested party's case is that there is evidence to demonstrate that the
claimant gained access to child pornography sites and paid entrance fees to
this site by use of his credit card. It
is alleged that on 24th April 1999, the claimant made three attempts to enter
websites called "child rape" and "forchild". The evidence is that "forchild"
means children forced to have sex. It is
said that the claimant successfully registered with the website
"forchild" on 23rd April 1999 and 25th April 1999. It is also said that he successfully
registered with the website known as "child rape" on 16th August
1999.
4. The
claimant was arrested on 4th October 2002.
He has been 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. On 4th November 2003 he appeared
before the District Judge at Coventry Magistrates' Court and was committed to
the Crown Court for trial.
5. By
these proceedings, permission having been granted by leave of the Single Judge,
he seeks to challenge the decision made by the District Judge to admit a
document into evidence, an exhibit. He
also seeks to challenge the decision on the basis that there was insufficient
evidence to justify his committal.
Finally, he challenges the decision on the ground that the evidence
discloses the commission of no offence.
6. The
prosecution evidence against the claimant comes from a number of sources:
namely witnesses who gave evidence of the operations of Landslide in the United
States (a former employee and investigating officers); documents obtained from
computers operated by Landslide; an employee of Alliance and Leicester plc; a
computer expert; and investigating police officers.
7. The
committal proceedings were proceedings pursuant to section 6(1) of the
Magistrates' Court Act 1980 and the Magistrates' Court Rules 1981. As is well known in such proceedings, the
evidence is tendered in documentary form and the prosecutor is entitled to
outline the case. No evidence may be
tendered on behalf of the defence. In
order for the evidence to be admissible at committal, it must be tendered by
the prosecution and fall within sections 5B, 5C, 5D or 5E of the 1980 Act.
8. The
Crown submits that the evidence provided by a former employee of Landslide and
the computer expert established that there was no possibility of a person
gaining access to and paying a subscription to view the "child rape"
and "forchild" websites by accident.
The procedures necessary to gain access to the websites would have
involved logging into the Landslide website; choosing to enter a site
specifically referred to as child porn and pressing enter; selecting a site
after viewing a sample of the images available on the various websites; and
completing a registration page with credit card details.
9. In
a helpful skeleton argument, Mr Purves, on behalf of the claimant, has
summarised the general procedures involved.
They are as follows, and it is a summary of the expert evidence.
10. The
Landslide web page offered the opportunity of connection by hyperlinks to other
websites operated by third parties.
Those websites carried prohibited images of children. In offering such access, the Landslide
website operated as a portal, meaning a website which is intended to operate as
a gateway to other websites via hyperlinks.
The person accessing the Landslide website was invited by the
pre-programmed content to complete a form, entering certain personal data. That data consisted of their name, address
and e-mail address, and also financial information such as credit card
details. In that way, the person was
able to select which hyperlinked websites could be accessed and could access
those websites for a pre-set time, and a predetermined price would then be
debited against the nominated credit card.
11. The
computer carrying the website was pre-programmed to accept or reject such
data. If the data was rejected, no
connection to the hyperlinks was possible.
If the data was accepted then for a limited period of time, according to
the subscription selected, there was connection to the hyperlinks.
12. However,
connection to the hyperlinks does not mean access to the websites. Access was obtained by means of a secure
password which had to be entered each time the subscriber wished to view those
websites. Connection could be made
immediately after a subscriber signed up.
A password was also e-mailed to him.
The remote computer operated by Landslide was pre-programmed to accept
or reject passwords as currently valid, expired, or rejected as not valid. All transactions of these kinds were recorded
in the database of the remote computer operated by Landslide. They apparently included instances of
attempted access to the hyperlinks by a purporting existing subscriber which
the database recorded as rejected. All
transactions are characterised as being self-populated in that they are
recorded not by a human being inputting the data but as a record kept by the
computer of the transactions interfaced between the computer, acting in
accordance with its programming, and intending or current subscribers or persons
claiming to be such subscribers.
13. 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.
14. The
first point taken on behalf of the claimant is that the District Judge had
regard to evidence which was inadmissible.
That evidence related to an exhibit produced by Police Constable Sharon
Girling, a police officer involved in the investigation. She is, as it appears, an officer from the
United Kingdom responsible for the investigation into Landslide. She made two witness statements and produced
a number of exhibits. One of those
exhibits is document SAG/01 and another is SAG/02. They chart purchases from the websites by an
e-mail address which reads "anthony@adpos.freeserve.co.uk". It was accepted by the claimant at interview
with police officers that this was his e-mail address. The document contained a breakdown of what it
is alleged were successful and unsuccessful attempts by the claimant to enter
the websites, and charges made to his credit card. The information contained in the document was
obtained from the Landslide database.
15. In
her statement dated 18th February 2003, Police Constable Girling stated:
"To gain
access to [the] material, anthony@adpos.freeserve.co.uk used a credit card, the
details of which are ... "
16. She
then set out a Mastercard number with the expiry date of the end of the 10th
month of the year 2001. The statement
goes on:
"The
purchaser was required to complete a registration/sign-up document supplying
the website owner with personal information.
These details needed to match the billing details of the credit card
including the name and address. The subscriber
at this stage also had to supply the company with a password. The individual anthony@adpos.freeserve.co.uk,
upon registration, supplied their name as Anthony O'Shea and their address 33
Scots Lane, Coventry, West Midlands, CV6 2DQ."
17. There
is evidence from a representative of Alliance and Leicester plc to the effect
that the Mastercard credit card number was in the name of a card issued to the
claimant in October 1998. As we
understand it, the evidence of the Alliance and Leicester witness is not
challenged by the claimant.
18. As
I have indicated, the first point taken by the claimant in these proceedings is
that the evidence of the computer printout referred to by the woman police
constable is hearsay evidence and inadmissible.
It is submitted that the evidence is not merely that of a mechanical
record but contained information inserted by a human interaction. The printout is contained in the papers at
divider 4, pages 1 and 2. In particular,
looking at page 2, there is a printout recording entries on various dates under
the name of Anthony O'Shea. The address
is given as 33 Scots Lane; the e-mail address is given as I have already
described it; a credit card number is given which on five of the occasions is
the same as that of the claimant's credit card number. There is then in one column a code in which
it appears that the credit card was accepted on four occasions and rejected on
three occasions.
19. Finally,
dealing with the evidence on this particular point, at divider 5, page 1, there
is a computer printout produced by the Alliance and Leicester witness which
shows that on 23rd April and 25th April, the claimant's credit card was debited
with sums which were payable or paid to Landslide Productions at Fort Worth.
20. The
submission made by the claimant is a simple one. It is submitted that the information
contained in the computer printout must have been obtained by entry by a human
mind keying in the details of the name, address, credit card number and e-mail
address. So it is submitted that this
consists of hearsay evidence.
21. The
interested party contends that it is all real evidence, being a computer
printout produced exclusively by a computer without the intervention of the
human mind.
22. A
number of decisions of this court, the Court of Criminal Appeal and the House
of Lords have been placed before us. In
my judgment, it suffices simply to refer to the case of R v Spiby (1990)
91 Cr App R 186. That is a decision of
the Court of Criminal Appeal presided over by Taylor LJ, as he then was. The facts are very shortly summarised in the
headnote at page 186 as follows:
"The
appellant was charged with two others with being knowingly concerned in the
fraudulent evasion of the prohibition on the importation of controlled
drugs. At his trial counsel for the
appellant challenged the admissibility of evidence in the form of computer
printouts of telephone conversations made from a hotel. The computer functioned automatically without
the intervention of any human being."
23. At
page 191, Taylor LJ, after referring to the case of Minors and Harper
(1989) 89 Cr App R 102, a decision of Steyn LJ, as he then was, went on to
refer to an article by Professor Smith dealing with that decision. Towards the bottom of page 191, the judgment
of Taylor LJ reads:
"It is
helpful to refer, briefly, to the article The Admissibility of Statements
by Computer by Professor Smith ... after referring to The Statue of
Liberty (supra), Professor Smith said:
"'Where
information is recorded by mechanical means without the intervention of a human
mind the record made by the machine is admissible in evidence provided, of
course, it is accepted that the machine is reliable. An elementary example is a maximum and
minimum thermometer. This records two
items of information in the course of 24 hours and there is no doubt that a
witness could give evidence of the reading he took from it if that were
relevant to the issue before the court. A
fortiori, the instrument itself could be produced, if it were possible to
do so, if it still bore the relevant readings.
It would not be necessary to call a professor of physics to prove how a
thermometer works because that is, surely, such a matter of common knowledge as
to be judicially noticed. The same is
true of a camera which photographs an event or a tape recorder which records a
conversation where the event or conversation is in issue or relevant to the
issue before the court. A radar
speedometer similarly makes a record of an event - the speed of a passing
vehicle - and it is no different in legal principle from the thermometer.'
"A
little later in the same article, at pp 390, 391, the Professor says:
"'The
very fact that the computer was not recording information supplied by another
not only prevented the act from applying but also makes it clear that it was
not necessary to rely on the act at all.
Hearsay invariably relates to information which has passed through a
human mind. This information never did
so.'
"We
respectfully adopt that helpful explanation of real evidence. We consider the learned recorder was right in
the present case to conclude that the computer print-outs from the Norex
machine were real evidence. This was not
a print-out which depended in its content for anything that had passed through
the human mind. All that had happened
was that when someone in one of the rooms in the hotel had lifted the receiver
from the telephone and, with his finger, pressed certain buttons, the machine
had made a record of what was done and printed that out. The situation would have been quite different
if a telephone operator in the hotel had had herself to gather the information,
then type it into a computer bank, and there came then a print-out from that
computer. There the human mind would
have been involved, that would have been hearsay evidence, and sections 68 and
69 would have been in point. However, in
the present case, no such intervention of the human mind occurred. What was recorded was quite simply the acts
which had taken place in regard to the telephone machinery and there was no
intervening human mind."
24. To
my mind, as indeed, as it appears, to the mind of the District Judge, the facts
in that case are much the same as in this case.
What must have happened here was that someone keyed in the details which
appear in the computer printout as recorded and produced by the woman police
officer.
25. Mr
Purves on behalf of the claimant submits that that information is used by the
prosecution to show that it was the claimant who keyed in that
information. For my part, it seems to me
that that argument is fallacious. The
purpose of the computer printout was in fact to show what was recorded. It was not evidence of the truth of what was
recorded. So for my part, the first
point made on behalf of the claimant fails.
In my judgment, this computer evidence was admissible as real evidence
and qualifies as real evidence as described in Spiby and in the other
cases.
26. Mr
Purves' argument about the admissibility really moves on and elides with the
second argument, which is whether there was a sufficiency of information to
connect the claimant with the computer printout.
27. So
far as that is concerned, as I have already indicated, the evidence before the
District Judge and which will, in due course, if the matter is committed, be
before the jury, is that his credit card and his admitted e-mail address is
precisely the same as that recorded on the computer printout. There is, as I have indicated, no dispute
that the details are his details.
28. Mr
Purves submits that that does not go far enough, because anyone with access to
his e-mail address and to his credit card could have keyed the information into
the computer. That may be so, but I
remind myself that at this stage we are dealing with the establishment of a prima
facie case. What the interested
party has to show at present is that there is evidence to prove an essential
element of the offence.
29. In
my judgment, the evidence that is admitted, namely the details of his address,
e-mail and credit card, is sufficient for a jury to draw the conclusion, if so
minded, that the person with that identity was the person who had keyed the
information into the computer. Mr Purves'
submission that the one does not follow the other in my judgment puts the cart
before the horse. Once there is evidence
to show that the credit card details are those of the claimant, it seems to me
it is sufficient to show that an inference is capable of being drawn that it
was him who keyed the information into the computer.
30. Accordingly,
in my judgment, the second point fails as well.
31. The
next point taken on behalf of the claimant is that the evidence does not
disclose any offence. The offence which
is charged, as I have already indicated, is one of incitement or attempted
incitement. The District Judge's
findings in relation to this matter are set out at page 23, to be found behind
tab 1 of the documents. He stated:
" ... I
accept the argument of the Crown that the defendant's communication did indeed
result in the incitement of others to commit an offence. The continued existence of the business
operation depended upon the support of fee paying customers who became
responsible for the continuation of the automated process. Clearly the writer of the computer programme,
which enabled the computer process to take place, required a human mind.
"It is
obvious that the business only continued because it was commercially
successful. Those who established the
business, programmed the computer or were party to it clearly had a real
interest in the venture becoming and continuing to be successful. Therefore, each and every subscription
encouraged those individuals to maintain the service. Mr O'Shea knew that if he was sent material
of the description he wanted it would be an illegal act, yet he incited others
to do just that, through the agency of a computer which after all is simply a
sophisticated labour saving device.
"There
is some small but significant support for the Crown's submission. I note from the banner advertisement for the
child rape site, that after a graphic verbal description of the nature of the
site there are the words 'The Real Scene Movies Updated Bi Weekly'. The owners were clearly aware of the need to
find fresh images and must have been encouraged to do so and distribute such
images every time there was a 'sign up'.
The defendant clearly intended to incite distribution to himself and in
addition did not wish the business to collapse, so destroying the supply of
material, and therefore must have intended to encourage the production of more
indecent material and the continued distribution of it to himself and to
others. This surely was the intention of
all subscribers."
32. Mr
Purves submits that that finding is in error.
He submits that there can be no incitement of a machine. There must be incitement of a human being. That is trite law. He submits that in this case, the evidence
shows that it was the computer which was vested with the decision making
process, namely of providing the end result, the computer printout. The decision had been made long before by the
human mind, namely the setting up of the programme, and therefore, all that was
necessary was for the information to be keyed in and the computer programme
would produce the relevant images. So,
it is submitted, the incitement occurred after the actus reas, namely
the fact of the person setting up the programme. Mr Purves relies on a passage in R v
Armstrong, a decision of the Divisional Court, which for convenience sake
can also be found in R v Goldman, an unreported case for the Court of
Criminal Appeal on 12th July 2001. I
propose to cite other passages from Goldman before coming to the passage
on which Mr Purves relies.
33. At
paragraph 21, Clarke LJ, giving the judgment in the case of Goldman,
stated:
"21. The ordinary meaning of 'incitement' as
adopted in the authorities is that it encompasses encouragement, persuasion or
inducement. The following definition was
graphically given by Holmes JA in Mkosiyana (1966) 4 SA 655 at 658. 'An inciter ... is one who reaches and seeks
to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being
legion, the approach to the other's mind may take many forms, such as a
suggestion, proposal, request, exhortation, gesture, argument, persuasion,
inducement, goading or the arousal of cupidity'.
"22. That graphic definition is, in our judgment,
essentially the same as that adopted in decided cases in this
jurisdiction. Thus in Invicta
Plastics Ltd v Clare [1976] Crim LR 131 the Divisional Court held that
'inducement' was usually described to juries by use of words such as 'it
involves the suggestion, or proposal, or persuasion, or inducement to commit
the offence' which the person charged was alleged to have incited. The Court of Appeal adopted a very similar
definition of 'incite' in Race Relations Board v Aplin [1973] 1 QB 815
at 825 per Lord Denning MR."
34. At
paragraph 26 of Goldman, Clarke LJ goes on to cite the passage of Armstrong
upon which Mr Purves relies. He states:
"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 --
"'(a) 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
"'(b) 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.'"
35. As
I have already indicated, the submission made on behalf of the claimant is
that, wide as that definition is, it is not sufficient to cover something which
involves a mechanical device, namely a computer. It does not in any way involve any human
interaction. Accordingly, it is
submitted, no human mind can be incited, in this case, by the claimant
inserting details into the computer.
36. I
have already stated that it is also submitted that the incitement, if it be an
incitement, came after the decision was made to programme the computer. Mr Purves also submits that in any event, the
entity lying behind the computer was a company, and it is not possible to incite
a company.
37. In
my judgment, this argument also fails.
The fact is that in this case, the claimant's computer communicated with
another computer which itself linked up to another website. This process enabled him to gain access to
websites which debited his credit card, which was a wholly automated procedure.
38. However,
the business operation of Landslide was operated by human beings. The evidence shows that those who owned
Landslide Inc were Mr and Mrs Reedy. The
computers were used to facilitate the business, and I accept the submission of
the Crown that for the purposes of this committal, 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, as the District Judge pointed out, 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.
39. Similarly,
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.
For those reasons, in my judgment, that argument also fails.
40. Accordingly,
this application for judicial review must be refused.
41. MR
JUSTICE KEITH: I agree that this claim
for judicial review must be refused for the reasons given by Gage J.
42. MR
JUSTICE GAGE: Thank you very much. Are there any applications? No.
Very well. Thank you.