COURT OF APPEAL - Criminal Division

Regina v Smith
Regina v Jayson

Before Lord Justice Dyson, Mr Justice Johnson and Judge Sir Rhys Davies, QC
Judgment March 7, 2002

April 23, 2002 The Times - Indecent net pictures

Opening attachments to e-mails and downloading images from the Internet to a computer screen were acts of making an indecent photograph, provided that the requisite intention was present.

The Court of Appeal, Criminal Division, so stated when dismissing appeals by
(i)
Graham Westgarth Smith against his conviction on December 20, 2000 at Lewes Crown Court (Judge Kemp and a jury) for which he was sentenced to two years probation
and
(ii)
Mike Jayson against his conviction on October 18, 2001 on a plea of guilty at Luton Crown Court (Judge Altman) for which he was sentenced to 12 months imprisonment.

Both had been convicted of the offence of making an indecent pseudo-photograph of a child contrary to section 1(1) of the Protection of Children Act 1978.

Mr Jeremy Gold, assigned by the Registrar of Criminal Appeals, for Smith; Mr. Mark Bryant-Heron for the Crown.
Mr Jonathan Kirk, assigned by the Registrar of Criminal Appeals, for Jayson; Ms Isabel Delamere for the Crown.

LORD JUSTICE DYSON, giving the judgment of the court, said that Smith had opened an e-mail and attachments containing images of a naked girl.

At trial, the judge ruled there was a case to answer after considering R v Bowden (Jonathan) (The Times November 19, 1999; (2001) QB 88) and Atkins v Director of Public Prosecutions (The Times March 16, 2000; (2000) 1 WLR 1427) and evidence produced by the Crown showing the appellant had performed a deliberate act in seeking to make photographs by proliferating them rather than taking the option to delete them.

Counsel for the appellant submitted the ruling at trial was wrong as the images were not made by opening the attachment.

His Lordship accepted that a person was not guilty of an offence of making photographs or being in possession if he had not known the attachment contained indecent photographs of a child but on the facts proved by the Crown the trial judge was right to conclude there was a case to answer.

His Lordship further said that Jayson had downloaded images of child pornography from the Internet on to his computer screen.

Relying on Bowden Ms Delamere submitted that the positive action of causing the photograph to be downloaded from the web page on to the screen involved the making of a photograph.

Mr Kirk submitted that in Atkins all the photographs had been voluntarily called up on to the screen when the appellant was browsing the Internet and allegedly had made the photographs by downloading them into a directory and into the cache, not by downloading them on to the screen.

His Lordship observed that Atkins did not shed any light on the issue as the court in that case did not have to consider whether the appellant made photographs when he downloaded images on to his screen, as it had not been alleged that the mere act of downloading them on to the screen was an act of making photographs.

His Lordship concluded that giving to the word "make" its ordinary and natural use of language, as in Bowden, the act of voluntarily downloading an indecent image from a web page on to a computer screen was an act of making a photograph or pseudo-photograph.

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.