Factual and Procedural Background
This opinion concerns two appeals by way of case stated relating to alleged offences under the Protection of Children Act 1978 (PCA) and section 160 of the Criminal Justice Act 1988 (CJA), both concerning indecent photographs of children. The first appellant, referred to as Plaintiff A, was convicted on ten counts of possession of indecent photographs found in computer caches but was acquitted on twenty-one counts of “making” indecent photographs stored in a separate directory on his computer. The second appellant, Plaintiff B, was convicted of possession of an indecent pseudo-photograph created by physically combining two photographs with sellotape. Both appeals were heard together for convenience despite arising from separate cases in the same magistrates’ court.
In Plaintiff A’s case, the magistrate found that the photographs in the directory were deliberately saved by Plaintiff A, whereas those in the caches were stored automatically by the computer’s browser cache without Plaintiff A’s knowledge. The magistrate ruled no case to answer on the “making” charges but convicted on possession of the cached images. Plaintiff A appealed against his possession convictions and the acquittal on “making” counts. Plaintiff B appealed against his conviction on the basis that the item in question was not a pseudo-photograph within the statutory definition.
Legal Issues Presented
- Whether possession of indecent photographs under section 160(1) of the CJA is an offence of strict liability, requiring no proof of knowledge of possession beyond the statutory defences.
- Whether the defence of “legitimate reason” under section 160(2)(a) of the CJA and section 1(4)(a) of the PCA is limited to specific categories such as anti-pornography campaigners, defined medical researchers, and certain criminal justice officials, excluding other forms of research.
- Whether the offence of “making” an indecent photograph under section 1(1)(a) of the PCA requires an act of creation (manufacture) and does not include merely storing or copying images, whether knowingly or not.
- Whether an item consisting of two photographs physically combined (sellotaped together) qualifies as a “pseudo-photograph” under section 7(7) of the PCA.
Arguments of the Parties
Plaintiff A's Arguments
- The offence of possession under section 160 requires knowledge of the existence of the photographs; since Plaintiff A was unaware of the computer cache, he should not be convicted for possession of those images.
- The defence of legitimate reason for possession or making of indecent photographs should be limited to narrowly defined categories and does not extend to academic or sociological research.
- The offence of “making” under the PCA requires actual creation or manufacture of photographs and does not include merely copying or storing images on a computer, whether knowingly or unknowingly.
Director of Public Prosecutions' Arguments
- The offence of possession under section 160 is one of strict liability; knowledge of possession is irrelevant once possession is established, subject only to statutory defences.
- “Making” indecent photographs includes the act of copying or downloading images onto a computer, whether or not the accused knew the images were being stored.
- The item consisting of two photographs sellotaped together should be considered a pseudo-photograph within the meaning of the PCA.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Pepper v Hart [1993] AC 593 |
Use of Parliamentary materials for statutory interpretation when conditions are met. |
The court declined to consult Parliamentary discussions on the definition of “legitimate reason” as the conditions for Pepper v Hart were not satisfied. |
| R v Fellows and Arnold [1997] 1 CAR 244 |
Definition of photograph includes data stored electronically capable of conversion into a photograph. |
The court recognized that electronic data stored on a computer disc falls within the scope of “photograph” under the PCA. |
| R v Bowden (unreported, 10 November 1999) |
“Making” an indecent photograph includes knowingly copying or downloading images onto a computer. |
The court held that “making” includes producing copies by downloading or printing, rejecting arguments for a narrower interpretation. |
| Tuck and Sons v Priester (1887) 19 QBD 629 |
Penal statutes should be construed in the most lenient way if multiple reasonable interpretations exist. |
The court acknowledged the rule but found the language in the PCA unambiguous, supporting a broad interpretation of “making”. |
| Morrelle Limited v Wakeling [1955] 2 QB 389 |
Definition of per incuriam and its narrow application to overturning precedent. |
The court ruled that Bowden could not be disregarded as decided per incuriam and was binding. |
| R v Hussain [1972] Cr.App.R.143 |
Possession of firearms without certificate is an absolute offence requiring knowledge of possession but not knowledge of firearm status. |
The court distinguished this case from possession of photographs, noting that knowledge of possession in the firearms context differs from the present case. |
| R v Steele [1993] Crim.L.R. 298 |
Possession of items in a container can constitute possession of the contents even without knowledge of their nature. |
The court found this case distinguishable, as Plaintiff A was not shown to know of the cache’s existence. |
| R v Buswell [1972] 1 All ER 75 |
Possession continues even if the possessor forgets about or mistakenly believes they no longer have the items. |
The court found this case distinguishable; it might apply if Plaintiff A had sought to remove known images but failed. |
Court's Reasoning and Analysis
The court carefully analyzed the statutory provisions of the PCA and CJA, particularly the definitions and scope of “making” and “possession” offences relating to indecent photographs of children. It affirmed that “making” under the PCA includes knowingly creating or copying indecent photographs, extending to electronic data stored on computers, as held in R v Bowden. The court rejected Plaintiff A’s argument that “making” requires original creation only and does not include copying or storing images, holding that the magistrate erred in acquitting on the “making” counts relating to the deliberately saved directory images.
Regarding possession under section 160(1) of the CJA, the court rejected the magistrate’s view that the offence is one of strict liability. Instead, it held that knowledge of possession is an essential element of the offence. The court distinguished relevant firearms possession cases, noting that knowledge of possession in the context of indecent photographs requires awareness of the existence of the material. Since Plaintiff A was not shown to know of the computer cache, he could not be convicted for possession of the cached images.
On the defence of “legitimate reason,” the court emphasized that its applicability is a question of fact in each case, dependent on whether the defendant genuinely requires possession for lawful purposes such as defined research or official duties. The court rejected any rigid limitation to narrowly defined categories but also noted courts should apply appropriate scepticism.
In the appeal of Plaintiff B concerning the pseudo-photograph, the court considered whether an item made by physically combining two photographs constitutes a pseudo-photograph under the PCA. The court found the magistrates erred in law by concluding that the combined item “appears to be a photograph.” The court held that an image made by combining two distinct photographs in such a manner does not meet the statutory definition of a pseudo-photograph, which requires the image to appear as a single photograph.
Holding and Implications
In the first appeal (Plaintiff A), the court concluded:
- The offence of possession under section 160 requires knowledge of possession; therefore, Plaintiff A’s conviction for possession of images stored in the computer cache was unsafe and must be quashed.
- The offence of “making” under section 1(1)(a) of the PCA includes knowingly copying or downloading indecent photographs; accordingly, Plaintiff A should have been convicted on the “making” counts relating to the directory images.
- The defence of “legitimate reason” is a factual matter to be decided on the evidence and is not confined to narrowly defined categories.
The matter was remitted to the magistrate for proceedings consistent with this judgment.
In the second appeal (Plaintiff B), the court held:
- The conviction for possession of a pseudo-photograph made by physically combining two photographs was erroneous in law and is quashed.
The court expressed concern about the appropriateness of prosecuting such a crude item with the severe consequence of registration under the Sexual Offenders Act 1997 and suggested the Director of Public Prosecutions exercise greater discretion in granting consent for similar prosecutions.
No new precedent was established beyond the clarification of the statutory interpretation of “making” and “possession” offences and the definition of pseudo-photograph under the PCA. The decision clarifies that knowledge of possession is necessary for conviction under section 160 and that “making” includes intentional copying but not unintentional storage.