CRIMINAL; Criminal Law

COURT OF APPEAL, CRIMINAL DIVISION

EVANS LJ, CRESSWELL AND BUTTERFIELD JJ

16, 27 SEPTEMBER 1996

The first appellant used a computer to store images in digital form which enabled it to display and print out indecent pictures of children. He also made that data available on the internet, but the archive could only be accessed by those to whom a password was given. He limited the recipients to those who were vouched for by existing password holders or who provided additional data of the same kind which increased the size and scope of the archive. The second appellant provided additional data and so was given access to the pictures. The first appellant was convicted of, inter alia, four offences of having in his possession ‘indecent photographs’ of children, as defined by s 7^a of the Protection of Children Act 1978, with a view to their being ‘distributed or shown’ by himself or others contrary to s 1(1)(c)^b of that Act; and the second appellant was convicted of three offences of distributing or showing indecent photographs of children contrary to s 1(1)(b) of the 1978 Act. The appellants appealed against their convictions, contending (i) that the computer data was not a ‘photograph’ for the purposes of s 1 of the 1978 Act, the definition of which had since been amended by the Criminal Justice and Public Order Act 1994 to ‘data stored on a computer disc or by other electronic means which is capable of conversion into a photograph’ which, in turn, suggested that Parliament had considered that such data was not covered by the unamended provisions and (ii) that, in any event, the data was not ‘distributed or shown’ merely by reason of its being made available for downloading by other computer users, since the recipient did not view the material held in the archive file, but rather a reproduction of that data which was then held in the recipient’s computer after transmission had taken place.

Held - The appeals would be dismissed for the following reasons-

(1) On their true construction the definitions of ‘indecent photograph’ set out in ss 1 and 7 of the 1978 Act were wide enough to include a form of technology which was either not anticipated or was in its infancy when the Act was passed and therefore to include later as well as contemporary forms of copies of photographs. In the instant case, the disk itself was not a photograph, but it contained data which could be converted by appropriate technical means into a screen image and into a print which exactly reproduced the original photograph from which it was derived. The data therefore represented the original photograph in another form and, since the 1978 Act did not restrict the nature of a copy, it came within the definition of ‘photograph’ for the purposes of the Act (see p 557 b to d f to j, post); A-G’s Reference (No 5 of 1980) [1980] 3 All ER 816 and R v Brown [1996] 1 All ER 545 applied.

(2) Although a person who received data from a computer archive obtained an exact reproduction of a photograph contained in the archive in digital form, the photographs in the archive were being held with a view to those same photographs being shown to others for the purposes of s 1 of the 1978 Act. The same data was transmitted to the recipient so that he would see the same visual reproduction as was available to the sender whenever he had access to the archive itself and it followed, in the instant case, that the appellants had shown indecent photographs of children contrary to s 1 of the 1978 Act (see p 558 e f, post).

For possession and distribution of indecent photographs of children, see 11(1) Halsbury’s Laws (4th edn reissue) paras 365-366.

For the Protection of Children Act 1978, ss 1, 7, see 12 Halsbury’s Statutes (1994 reissue) 732, 738.

Alban Fellows appealed against his conviction in the Crown Court at Birmingham on 2 April 1996 before Owen J on four counts of possessing indecent photographs of a child and one count of having an obscene article for publication for gain and against the sentence of three years’ imprisonment imposed on him following conviction. The facts are set out in the judgment of the court.

Stephen Arnold appealed against his conviction in the Crown Court at Birmingham on 2 April 1996 before Owen J on three counts of distributing indecent photographs for which he was sentenced to six months’ imprisonment. The facts are set out in the judgment of the court.

27 September 1996. The following judgment of the court was delivered.

EVANS LJ. The first appellant, Alban Fellows, is a computer expert. He used the computer of his employers, Birmingham University, to store data which enabled it to display indecent pictures of children on the computer screen and to produce prints. He also made this data available on the internet, so that other computers worldwide could receive and display similar screen images and produce identical prints. But he established a password so that his so-called archive could be accessed only by those to whom the password was given, and he limited the recipients to those who were vouched for by existing password holders or who provided additional data of the same kind which increased the size and scope of his archive. One such recipient who provided additional data was the second appellant, Steven Arnold.

They were charged with various offences under the Protection of Children Act 1978 and the Obscene Publications Act 1959, as amended in 1964. They contend that the computer data was not a ‘photograph’ for the purposes of s 1 of the 1978 Act, which makes it an offence for a person to have in his possession indecent photographs of children ‘with a view to their being distributed or shown by himself or others’ (s 1(1)(c)), and secondly, that the data was not, in any event, ‘distributed or shown’ merely by reason of its being made available for what is called downloading by other computer users.

The 1978 Act has since been amended by s 84 of the Criminal Justice and Public Order Act 1994, so that the expanded definition of ‘photograph’ now includes: ‘… data stored on a computer disc or by other electronic means which is capable of conversion into a photograph’ (s 84(3)(b)). The 1994 Act also introduced a category of ‘pseudo-photographs’ which are defined as meaning: ‘… an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph’ (s 84(3)(c)).

The Obscene Publications Act 1959, as amended in 1964, makes it an offence to publish an obscene article (s 2(1)). Section 1 defines both ‘article’ and ‘publishes’ in terms which, for obvious reasons, do not provide expressly for the computer technology which was available to the first appellant in 1994. He contends therefore that his computer-based activities did not constitute an offence under the 1959 Act, as amended in 1964. Further amendments have been made to this Act, as to the 1978 Act, by the Criminal Justice and Public Order Act 1994, and it is unnecessary for present purposes to determine whether or not the amended wording could cover the present case.

These legal arguments were addressed to the trial judge, Owen J, and he rejected them. The appellants thereupon pleaded guilty to the relevant charges in the indictment, and they now appeal against their convictions, by virtue of certificates given by the judge.

We have been greatly assisted, as he was, by the forceful though moderately expressed submissions made by Mr Colman Treacy QC and Mr Alun Evans for the appellants, and by Mr John Mitting QC for the prosecution.

RELEVANT STATUTORY PROVISIONS

(A) Protection of Children Act 1978

Amending provisions: Criminal Justice and Public Order Act 1994-

(B) Obscene Publications Act 1959

(Section 2 prohibits the publication of an obscene article.)

Amending provisions in the 1994 Act-

This is unreported but is commented on extensively by Colin Manchester in a helpful article, ‘More About Computer Pornography’ [1996] Crim LR 645, for which we are grateful. We should therefore summarise the ruling here.

The judge defined the issues as follows:

He then established parameters for the exercise in statutory interpretation which the submission calls for by considering and rejecting two extremes as follows:

Having considered a dictionary definition (Shorter Oxford English Dictionary) of ‘photograph’, he referred to the definition in s 7(2) of the 1978 Act, and held:

He then considered Mr Treacy’s submission that because the 1994 Act introduced amendments which expressly include stored computer data therefore Parliament must have considered that such data was not covered by the unamended provisions. He held:

The second submission was that the computer data, even if it consisted of indecent photographs within the Act, was not held ‘with a view to them being distributed or shown’ by the first appellant. Owen J held, first, that-

and secondly, 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.

As regards the 1959 Act, the judge defined four issues. First, was the computer hard disk an ‘article’ as defined by s 1(2) of the Act? This includes ‘a film or other record of a picture’. Referring to A-G’s Reference (No 5 of 1980) [1980] 3 All ER 816, [1981] 1 WLR 88, he held that it is. The second issue no longer arises. The third was whether the first appellant had the computer disk for publication by ‘showing or projecting’ (s 1(3)). He held that he did, ‘construing the language as [it] would have been understood by ordinary literate persons in 1959 and in a purposive manner.’

The fourth issue concerned the second appellant alone. This likewise no longer arises.

Mr Manchester, in the article already referred to, concluded (at 649):

This in our view is an entirely fair and accurate summary of the judge’s ruling. The central issue raised by this appeal arises out of the fact, which must be acknowledged, that in 1959 and 1964 when the Obscene Publications Acts were passed and even in 1978, the date of the Protection of Children Act, Parliament cannot have envisaged the precise capabilities of modern technology, in particular the ability of computers to store data which enables them to reproduce photographs and which can be retrieved by any other computer linked telephonically to the storage computer, worldwide. Was the legislation in such terms that these developments were outside its scope? Does the passing of amending legislation in 1994 mean conclusively, that in the view of Parliament, they were?

SUBMISSIONS

(A) The facts

In addition to his formal ruling, the judge set out the admitted facts as he understood them. His summary is accepted by the appellants, and Mr Treacy began his submissions to us with some additional general comments. The overall situation is as follows.

The archive of pornographic material which the first appellant caused to be stored on a hard disk, which was described as external to his employer’s computer, consisted of data which had been received by the computer in digital form from other computers. This meant that at some time previously a conventional photograph had been ‘scanned’ by another computer so as to store the image on the magnetic zones of the hard disk of that computer. This data had then been transmitted either directly or via other computers to the hard disk of the Birmingham computer, a process known as ‘uploading’ that computer. The method of transmission is straightforward telephonic communication between two computers and the fact of transmission does not extinguish what is stored in the transmitting computer; the computer which is uploaded acquires its own data, reproducing what is transmitted to it. The transmission process does not involve the creation of any images and is therefore invisible to the human eye unless the image is called up on the screen of one or other of the computers. Calling up the screen image and transmitting the data to another computer are both called ‘downloading’ the computer or disk on which the data is stored. It is accepted that both the screen image and a computer print-out of the image are indistinguishable from the photograph which was originally scanned, save that each has a reference number superimposed upon it.

The archive was accumulated by the first appellant, apparently during about 12 months up to April 1994. It consisted of data relating to about 11,650 pictures stored in numerous sub-directories. One of these sub-directories entitled ‘Young/Minors’ contained 1875 pictures of children engaged in various sexual acts or poses. There were in addition some hundreds of pornographic pictures involving children obtained from computer bulletin boards in Denmark and the United States. The charges against both appellants referred to specific photographs, and it was alleged against the second appellant that he was responsible for transmitting data relating to not more than, in total, some 20-30 photographs to the first appellant. These photographs or some of them were taken as long ago as the early 1970s, and Mr Treacy emphasised that data stored in the first appellant’s archive was ‘old material’ both in terms of its age and because it was some distance from its original source. We must confess, however, that we do not understand why this should affect the issue of guilt or be relevant as mitigation if the offences were committed.

In summary, the first appellant created an archive of data stored in the hard disk of the Birmingham computer which was derived from pornographic photographs of children which could be down-loaded by other computers whose operators knew the correct password. The data could be used to create either screen images or documentary print-outs which were indistinguishable from the photograph from which it was derived. The second appellant uploaded the computer with data relating to a relatively small number of photographs so that he could obtain the password from the first appellant. He said in his statement that he was not interested in child pornography and had only done this in order to gain access to the rest of the archive.

(B) The law

These are issues of statutory interpretation. The court’s primary task is to ascertain the meaning of the words of the statute itself, and it is only in this sense that what was or may be inferred to have been the intention of Parliament is relevant. Whilst the court’s decision in a particular case may indicate what can be described as a ‘purposive’ as distinct from a ‘literal’ approach, it would be wrong in our view to say that one or other of these two methods should be pre-determined or is correct. That may become relevant if some ambiguity is found to exist, but the first inquiry is, what do the words themselves mean?

In A-G’s Reference (No 5 of 1980) [1980] 3 All ER 816, [1981] 1 WLR 88 the question asked was whether a person who provides screen images derived from a video tape ‘publish[es] an obscene article’ contrary to s 2 of the 1959 Act? The court answered, Yes, rejecting the defendants’ arguments that an offence under s 2 was only committed when a conventional, ie celluloid, film was ‘shown, played or projected’ onto a screen. The article was a video cassette containing magnetised tape. When it was played, electric signals caused images to be displayed on the screen. The system ‘did not involve the projection of light onto a screen’. The court held that the cassette was an article which produced pictures or sounds within the embrace of the Act (see [1980] 3 All ER 816 at 821, [1981] 1 WLR 88 at 95). The words ‘play or project’, if not ‘show’ also, in s 1(3)(b) of the Act were wide enough to cover what happens when pictures are produced by this means. In the judgment, Lawton LJ added ([1980] 3 All ER 816 at 821-822, [1981] 1 WLR 88 at 95):

This decision is a direct authority on the issues raised here under the 1959 Act. It is also relevant to the construction of the 1978 Act, because the court acknowledged that it was at least doubtful whether in 1959 Parliament had envisaged that video cassettes would become widely available and so provide a means for obscene displays which contravened the Act. Counsel for the defendants submitted that the court ‘should be slow to apply the words to a piece of electronic equipment which probably had not been within the contemplation of Parliament’ (see [1980] 3 All ER 816 at 819, [1981] 1 WLR 88 at 92.) Lawton LJ said that the court had borne in mind that particular admonition-

We would respectfully indorse that as the correct approach when, as here, the question is whether some more recent technical development is within the scope of a statute which was passed before the development took place or at a time when for some other reason Parliament was unlikely to have had the particular development in mind. Given the state of contemporary knowledge, it is possible that the statute on its true construction applies only to what was known at that time, but it is also possible that it applies to future developments, not then anticipated, by virtue of the wording that was used. The question in the present case is whether the 1978 Act and the 1959 Act, before they were amended in 1994, had that wider scope.

This leads to Mr Treacy’s general submission that, by introducing express words by the 1994 amendments which are directly relevant to the facts of the present case, Parliament indicated conclusively that those facts were not within the unamended wording. The amendments, he submits, were introduced in order to extend the scope of the statutes; therefore without the amendments the statutes had a narrower scope. This submission, in our judgment, must be rejected. First, because the scope of the original statute was established by the true construction of the words used at the date when the statute was passed. That meaning was not altered by the later introduction of amendments, even if (which is not suggested here) the effect of the amendments was such as to change the context of the original words and therefore to modify their original meaning with effect from the date when the amendments were introduced. Secondly, the true construction of the original unamended statute has to be determined as a matter of law by the courts, not by the later views of Parliament, unless some form of retrospective legislation is then introduced (which, again, is not suggested here). And in any event, the intention of a later Parliament is at least as speculative, and irrelevant, as Lawton LJ held was that of the Parliament by which the original legislation was passed.

So we return to the specific issues raised in the present case.

PROTECTION OF CHILDREN ACT 1978

Was the disk storing the first appellant’s archive, which he admitted having in his possession at the material time, an ‘indecent photograph’ within s 1(1)(c) of the 1978 Act? It cannot be said that the disk itself was a photograph within the dictionary definition, because that requires-‘a picture or other image obtained by the chemical action of light or other radiation on specially sensitised material such as film or glass’.

There is no ‘picture or other image’ on or in the disk; nothing which can be seen. The statutory definition includes the negative as well as the positive version (s 7(4)). The presence of this express definition can probably be traced back, in our judgment, to Straker v DPP [1963] 1 All ER 697, [1963] 1 QB 926, where the Queen’s Bench Divisional Court distinguished between photographic negatives and prints derived from them. The 1978 Act provided expressly that this distinction should not be made, and in our view it cannot be argued that s 7(4) extended the meaning of ‘photograph’ beyond what was otherwise included in it.

Indeed, the dictionary definition, quoted above, can be said to point to the negative rather than the positive version, or print, although as we understand it the print may also come within it when conventional techniques are used (‘obtained by the chemical action of light or other radiation on specially sensitised material’). Mr Mitting submitted to us that this is the correct interpretation of the Act: the negative is the only ‘photograph’ and all prints etc are copies of it. It is not necessary for us to decide whether this is correct, but we are strongly inclined to the view that it is not. The meaning of ‘photograph’ in ordinary parlance, both in 1978 and now, in our view, is the picture or image which a person sees, whether as a print or ‘positive’ or, possibly, when a slide or microfiche is projected onto a screen or enlarged by the appropriate equipment. It seems to us that ‘photograph’ was used in this sense in the 1978 Act and that s 7(4) confirmed that the negative was included also.

If not a ‘photograph’, is the computer disk nevertheless a ‘copy of an indecent photograph’ within s 7(2)? It contains data, not visible to the eye, which can be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original photograph from which it was derived. It is a form of copy which makes the original photograph, or a copy of it, available for viewing by a person who has access to the disk. There is nothing in the Act which makes it necessary that the copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. So we conclude that there is no restriction on the nature of a copy, and that the data represents the original photograph, in another form.

We find support for this conclusion in the speech of Lord Goff in a recent House of Lords decision, R v Brown [1996] 1 All ER 545 at 548, [1996] AC 543 at 548. The issue was whether ‘data’ within the Data Protection Act 1984 was limited to data in computer-readable form so that it was ‘used’ when it was retrieved from the computer base and rendered legible on the screen. Lord Goff held that retrieval of the information would not of itself be ‘using’ the information so retrieved: ‘It would simply be transferring the information into a different form.’ (See [1996] 1 All ER 545 at 548, [1996] AC 543 at 548-549.) Similarly, it seems to us, where the database records, not information, but a visual image derived from a photograph, it stores the image in a different form.

There remains the basic question whether the 1978 Act should properly be interpreted so as to include a form of technology which, we are prepared to assume, was either not anticipated or was in its infancy when the Act was passed. In this context, both parties rely on s 7(5), which includes ‘any form of video recording’ within the statutory definition. Mr Treacy submits that this was unnecessary, if the general definition was wide enough to include this form of electro-magnetic storage of visual images which was known in 1978. Mr Mitting submits that its presence emphasises the fact that the general definition was wide enough to include it. The statute was intended to be comprehensive and at that time was fully up-to-date.

In our judgment, Mr Mitting’s submission should be preferred. It is difficult to read the inclusion of s 7(5) as restricting the scope of the general definitions in ss 1 and 7(2), and these definitions are wide enough, in our judgment, to include later as well as contemporary forms of copies of photographs. This also seems consistent to us with the approach to the 1959 Act adopted by this court in A-G’s Reference (No 5 of 1980).

We hold therefore that the judge was correct in his ruling that the disk held data which comes within the definition of ‘photograph’ for the purposes of the 1978 Act.

This phrase is introduced by and defined in the 1994 amendment (s 84(3) and (7)). Therefore it is not relevant to the present appeals. We should add, however, that it seems to us to be concerned with images created by computer processes rather than the storage and transmission by computers of images created originally by photography.

Mr Treacy submits that ‘showing’ is active rather than passive, and that the first appellant did nothing more than permit others, including the second appellant, to have access to his archive. Moreover, where transmission takes place the recipient does not view the material held in the first appellant’s archive, but rather a fresh reproduction of new data which is held in the recipient’s computer after transmission takes place.

As regards the first submission, even if it is accepted, as we are prepared to do for present purposes, that some active conduct on the first appellant’s part was necessary, it seems to us that there was ample evidence of such conduct on his part. He took whatever steps were necessary not merely to store the data on his computer but also to make it available worldwide to other computers via the internet. He corresponded by e-mail with those who sought to have access to it and he imposed certain conditions before they were permitted to do so. He gave permission by giving them the password. He did all of this with the sole object of allowing others, as well as himself, to view exact reproductions of the photographs stored in his archive. The judge’s library key analogy in our judgment was appropriate and correct.

The fact that the recipient obtains an exact reproduction of the photograph contained in the archive in digital form does not mean, in our judgment, that the (copy) photographs in the archive are not held in the first appellant’s possession 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. We therefore would reject the second submission also, and in our judgment both the first and the second appellants were guilty of the offences charged against them under the 1978 Act.

NOTE

Mr Mitting disclaims reliance against the first appellant on ‘distribute’ if, contrary to his submission (which we have upheld) the photographs were not ‘shown’ by the first appellant. We therefore heard no argument on the meaning of s 1(2), where ‘distributing’ is defined, and we express no view upon it. We note also that the second appellant was convicted of ‘distributing’ indecent photographs, and he does not appeal on the ground that this was incorrect.

What we have said above, with regard to a contemporary interpretation of the 1959 and 1964 Acts, and the relevance, if any, of the 1994 amendments, applies equally to these Acts.

The offending ‘article’ for the purposes of s 1(2) was the computer disk. Mr Treacy submitted that ‘publication’ within s 1(3) requires some form of active conduct and that providing access to the archive was ‘passive’ conduct only. For the reasons given above, we reject this submission. He further submitted that on the facts of this case it could not be said that the article, namely the disk, was shown, played or projected, as required by s 1(3)(b).

In our judgment, the reasoning in A-G’s Reference (No 5 of 1980) which we have referred to extensively above is entirely appropriate in this case also. The 1959 Act has to be interpreted as it was understood by ‘ordinary literate persons’ when it was passed, and the data stored in the disk was ‘shown, played or projected’ to those who gained access to the archive by means which, though not available in 1959, nevertheless can be regarded as within the ordinary meaning of those words.

SENTENCE

The first appellant appeals against the total sentence of 3 years’ imprisonment passed on him, made up as follows: counts 1 to 4 (s 1(1)(c) 1978 Act) two years on each count concurrent; count 15 (s 2(1) 1959 Act) 12 months consecutive. The second appellant does not pursue his appeal against his sentence of six months imprisonment for three offences under s 1(1)(b) 1978 Act, which he has now served.

Owen J gave detailed reasons for the sentences which he passed, saying that his was not an easy task. The appellants are highly intelligent and well-educated: ‘To see young men of your background in this court for these offences must make your parents and your friends shake their heads in wonder.’ Each was of previous good character. Each had lost his job, which for the first appellant had had serious financial consequences, ‘in effect a punishment of £20,000’. Each had done charitable work. Neither had done what they did for money, and he accepted that neither of them was a danger to children in the future. There had been substantial delay since the offences were committed. Nevertheless, the total sentence might have been longer than three years, and the sentences passed were: ‘… the only proper way to deal with you so that others will know what may befall them.’

It is submitted that insufficient credit was given for the first appellant’s previous good character and his active co-operation with the police, including giving them the password, and for the delay and the effect of the proceedings on the appellant. Quoting ground (v) of the perfected grounds of appeal:

We cannot agree. As the judge said, in other cases where financial gain was in prospect or the defendant set out to corrupt others who previously were innocent, an even longer sentence might be inevitable. There is enormous public disquiet at the potential which the internet offers for the international transmission of pornography, in particular for those whose perverted tastes include collecting and viewing indecent photographs of children. Add to this the public revulsion against paedophilia in all its forms and it becomes clear, in our judgment, that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light.

The first appellant misused his undoubted skills as a computer operator to indulge his unfortunate interest in pictures of this sort, and he set out to involve others as viewers and as contributors to his archive. The scale of his operations and the potential for harm to children, who are the ultimate victims of these offences, mean that the offences to which he pleaded guilty after the trial judge’s ruling must be regarded as serious. It follows that a lengthy prison sentence was called for. We agree that he should receive credit for his plea of guilty and for his co-operation with the police. In the result, however, we cannot see any justification for calling the sentence either wrong in principle or manifestly excessive in length.

This appeal therefore is dismissed, both as regards conviction (by Fellows and Arnold) and sentence (Fellows only).