Court:
CA (Dyson LJ, Johnson J, HH Judge Sir Rhys-Davies QC) 7/3/2002

Subject:
CRIME - INFORMATION TECHNOLOGY - SENTENCING - CHILDREN

Descriptors:
COMPUTER DATA : DOWNLOADING : COMPUTER DISCS : HARD DISKS : HARD DRIVES : PRINTING OUT : PORNOGRAPHY : PORNOGRAPHIC : INDECENT : INTERNET : E-MAILS : ATTACHMENTS : PHOTOGRAPHS : PSEUDO-PHOTOGRAPHS : TO MAKE : MAKING IMAGES : TO CAUSE TO EXIST : TEMPORARY CACHE : CUSTODIAL SENTENCES : MENS REA : ACTUS REUS : S.1 AND S.7 PROTECTION OF CHILDREN ACT 1978

Summary:
Voluntarily browsing through indecent images of children from the internet, so that they appeared on a computer screen, for whatever period of time, of itself amounted to making indecent pseudo-photographs of a child, contrary to s.1(1) Protection of Children Act 1978. The recipient of an e-mail attachment containing an indecent image of a child would not commit an offence under s.1(1) by opening that attachment if he was unaware that it contained or was likely to contain an indecent image.

Text:
Two conjoined appeals against convictions for making an indecent pseudo-photograph of a child contrary to s.1(1) Protection of Children Act 1978. The first appellant ('S') received the pseudo-photograph in an attachment to an e-mail. The second appellant ('J') had browsed the pseudo-photograph on the internet. In both cases the browser software automatically saved the images to a temporary internet cache on the appellant's computer. The trial judge in S's case rejected a submission of no case to answer, which was made on the basis that S had not "made" a pseudo-photograph within the meaning of s.1(1)(a) of the Act. The e-mail to which the image was attached indicated the nature of the attachment. S solicited further such images and did not delete any of the images from his inbox.

J pleaded guilty to seven counts of the offence, following a judge's ruling on the definition of "make" for the purposes of s.1(1)(a). That ruling was that browsing child pornography on the internet amounted to the offence if it resulted in: (i) an image being displayed on the computer's screen; or (ii) the automatic downloading of an image to a temporary internet cache, provided that there was the requisite mens rea. J was sentenced to concurrent sentences of 13 months' imprisonment, against which he also appealed. J was computer-literate and aware of the function performed by his temporary internet cache.

HELD:

(1) No offence of "making" or "being in possession" of an indecent pseudo-photograph was committed by opening an e-mail attachment, when the recipient was unaware that it contained or was likely to contain an indecent image. Mens rea had not been considered in R v Bowden (2000) 1 CAR 438. However, it was considered in Atkins v Director of Public Prosecutions (2000) AER 425, which held that s.1(1)(a) of the Act did not create an absolute offence, encompassing the unintentional making of copies.

(2) S's case came nowhere near the paradigm case of an innocent person who, wholly unsuspecting, opened an unsolicited e-mail or attachment quite unaware of what it contained. There had been a case to answer.

(3) The act of voluntarily downloading an indecent image from the internet to a computer screen was an act of making a photograph or pseudo-photograph because the computer's operator, in so downloading, was causing the image to exist on the screen. The length of time it remained on the screen was irrelevant. The question of retrieval was also irrelevant; it was not required by s.7(4)(b) of the Act. The necessary mens rea was that the act of making should be a deliberate and intentional act with the knowledge that the image was or was likely to be an indecent photograph or pseudo-photograph of a child.

(4) J's sentence was appropriate.

Appeals dismissed.