REGINA v Smith

Factual and Procedural Background

This opinion concerns two appeals against convictions for offences of making indecent pseudo-photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978 ("the Act"). In the first case, the appellant was convicted after images were shown as an attachment to an e-mail, which he opened and retained. In the second case, the appellant pleaded guilty to making indecent photographs by downloading images from the Internet onto his computer screen, which were also automatically saved in a temporary Internet cache. Both cases involve the legal interpretation of what constitutes "making" an indecent pseudo-photograph under the Act, particularly in the context of digital images accessed via electronic communications and the Internet.

The first appellant was convicted at a Crown Court before a judge and jury and appealed against conviction. The second appellant pleaded guilty at a Crown Court and appealed against conviction and sentence. Both appeals were heard together, focusing on the interpretation of the statutory offence in the digital context.

Legal Issues Presented

1. Whether the act of opening an e-mail attachment containing indecent pseudo-photographs of a child constitutes "making" such images under section 1(1)(a) of the Protection of Children Act 1978.
2. Whether the act of downloading indecent images from the Internet onto a computer screen, and their automatic storage in a temporary Internet cache, constitutes "making" an indecent photograph or pseudo-photograph under the same provision.
3. The nature and requirements of mens rea (mental element) for the offence of "making" indecent photographs or pseudo-photographs under the Act.
4. The scope and interpretation of statutory definitions related to photographs and pseudo-photographs, including the significance of data stored electronically capable of conversion into such images.

Arguments of the Parties

Appellant in Smith

• The appellant argued that merely opening an unsolicited e-mail attachment and viewing the images did not amount to "making" a pseudo-photograph under section 1(1)(a) of the Act.
• He contended that the section should be construed narrowly to avoid criminalizing innocent conduct, such as opening unsolicited attachments without knowledge of their content.
• He distinguished his case from deliberate downloading, emphasizing that he did not solicit the images but merely viewed them.
• The appellant also argued that there would be an unreasonable overlap between the offence of making under the 1978 Act and possession under section 160(1) of the Criminal Justice Act 1988.
• He submitted that the statutory defence available under section 1(1)(b) and (c) should logically extend to section 1(1)(a), which it does not.

Crown's Arguments in Smith

• The Crown submitted that the appellant had effectively solicited the indecent images by e-mail and showed deliberate interest in receiving and retaining them.
• Opening the attachments and failing to delete the images amounted to an act of "making" the pseudo-photographs as defined by the Act.
• Relying on precedent, the Crown argued that downloading or printing images from the Internet creates new material and thus constitutes making.

Appellant in Jayson

• The appellant contended that the automatic storage of images in a temporary Internet cache did not constitute "making" as it lacked the requisite mens rea of intending to store or retrieve the images.
• He argued that images appearing on the computer screen were only temporarily present in random access memory and did not amount to making a photograph under the Act.
• The appellant relied on the statutory definition of "stored" in section 7(4)(b) of the Act, submitting that storage implies retention for future use, which was absent here.
• He further argued that the case law (notably Atkins) did not address whether images displayed on a screen constitute making, thus supporting a narrow interpretation.

Crown's Arguments in Jayson

• The Crown submitted that the deliberate act of causing an indecent photograph to appear on a computer screen constitutes making the photograph.
• They argued that the automatic saving of images in the temporary cache was also an act of making, and it would be unjust for a knowledgeable operator to evade liability by relying on the temporary nature of the cache.
• Reliance was placed on the Bowden decision, which recognized that reproducing indecent material found on the Internet falls within the legislative mischief targeted by the Act.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by referencing the statutory provisions of the Protection of Children Act 1978, particularly section 1(1)(a) and the definitions in section 7. The court emphasized the natural and ordinary meaning of "make" as "to cause to exist; to produce by action; to bring about," as established in R v Bowden.

In the first appeal, the court distinguished between an innocent party who unknowingly opens unsolicited attachments and the appellant, who solicited and knowingly received indecent images by e-mail. The evidence of e-mail correspondence demonstrated the appellant's deliberate intention to receive and retain such images, thereby constituting an act of making under the Act. The court rejected the appellant's argument for a narrow construction limiting the offence to original creation only, affirming that proliferation of images also falls within the offence's scope.

Regarding mens rea, the court held that knowledge or suspicion that the images are indecent is necessary for the offence. It accepted that an innocent person unaware of the content would not be guilty merely by opening an attachment. However, where evidence shows deliberate intent and knowledge, as in this case, the offence is made out.

In the second appeal, the court addressed the act of browsing Internet child pornography and the automatic storage of images in a temporary cache. The court ruled that the deliberate act of downloading an image onto a computer screen constitutes making the photograph or pseudo-photograph. The temporary nature of the cache and the lack of intention to store for future retrieval were held irrelevant to the act of making. The court rejected the appellant's narrow interpretation of "stored" in the statutory definition, clarifying that the definition relates to what constitutes a photograph, not the mens rea for making the offence.

The court noted that the mens rea requires a deliberate and intentional act with knowledge that the image is or is likely to be an indecent photograph or pseudo-photograph. The automatic saving of images in the cache, when accompanied by knowledge, also constitutes making. The court found the sentencing judge's approach appropriate given the gravity of the offences and the nature of the images involved.

Holding and Implications

The court DISMISSED both appeals against conviction and the appeal against sentence in the second case.

The holding confirms that under the Protection of Children Act 1978, the act of "making" an indecent photograph or pseudo-photograph includes the deliberate downloading or opening of such images, whether from e-mail attachments or the Internet, and includes images automatically stored in temporary electronic caches, provided the requisite mens rea is present.

This decision reinforces the broad scope of the offence to cover the proliferation of indecent images through modern electronic means, emphasizing that knowledge and intent are essential elements. The ruling clarifies the legal boundaries between innocent conduct and criminal liability in the digital context, but does not extend liability to those unaware of the illicit nature of images accessed inadvertently.

No new precedent beyond the application and affirmation of existing principles was established, but the judgment provides important guidance on the interpretation of "making" in relation to electronic images.