Atkins v DPP

[Donald Ramsbottom]

Here is one for the Techmarines out there and those that have departmental
and personal computers in the same place. Forget the subject matter, and
check out the reasoning and analysis. There are observations on "possession"
and "making" which may be relevant to RIP interpretation.


>ATKINS v DIRECTOR OF PUBLIC PROSECUTIONS  : GOODLAND v DIRECTOR OF PUBLIC
PROSECUTIONS 
>(2000) 
>
>Court:
>CA (Simon Brown LJ, Blofeld J) 8/3/2000 
>
>Subject:
>CRIME - INFORMATION TECHNOLOGY - CHILDREN 
>
>Descriptors:
>INDECENT PHOTOGRAPHS : "MAKING" : WHETHER POSSESSION REQUIRED KNOWLEDGE :
LEGITIMATE 
>REASON : CACHE : PHOTOGRAPHIC MONTAGE : PROTECTION OF CHILDREN ACT 1978 :
CRIMINAL 
>JUSTICE ACT 1988 : CRIMINAL JUSTICE AND PUBLIC ORDER ACT 1994 
>
>Summary:
>Appeals by way of case stated, against convictions for possession of indecent 
>photographs of children. "Possession" under s.160 Criminal Justice Act 1988 
>required knowledge in accordance with general principles of law. Whether
academic 
>research constituted the "legitimate reason" defence was purely an issue of 
>fact. "Making" photographs included copying, provided it was done with
knowledge. 
>Photographic montages were not included in s.7(7) Protection of Children Act 
>1978. 
>
>Text:
>Two appeals by way of case stated, by defendants ('A' and 'G') in two separate 
>cases, against their convictions at Bristol Magistrates' Court for offences 
>contrary to s.160(1) Criminal Justice Act 1988, namely possession of
indecent photographs of children. G was convicted on 
>21 April 1999 on one count of having in his possession an indecent
pseudo-photograph 
>of a child contrary to s.160(1) of the 1988 Act. A was convicted on 27 May 
>1999 of ten offences under s.160(1) of the 1988 Act. Two days earlier the
stipendiary 
>magistrate upheld A's submission that there was no case to answer in respect 
>of 21 additional counts of making indecent photographs of children contrary 
>to s.1(1)(a) Protection of Children Act 1978. The Director of Public
Prosecutions 
>('the DPP') appealed against A's acquittal on the 21 "making" counts. A, an 
>University English Lecturer, had a personal computer in his office and also 
>a departmental computer mostly used by others in his department's main office. 
>Following an enquiry into unorthodox internet usage of the departmental
computer 
>its cache memory was examined and found to contain indecent pictures of
children. 
>A's personal computer was then examined and similar pictures found within its 
>one of the directories. The staff members made copies of the material onto 
>floppy discs. A was suspended shortly afterwards. Expert evidence on the
retrieval 
>of documents from the internet stated that computer users did not commonly 
>know that the cache existed or that it automatically stored recent images
viewed 
>from the internet for efficiency reasons. However the directory on which the 
>other images were stored did not form part of the cache and must have been 
>deliberately stored there. The magistrate concluded that he could not be sure 
>that A knew of the cache. However, A's ten convictions related to images
retrieved 
>from caches in both the departmental and A's personal computer whereas the 
>charges which related to the images which A had deliberately saved were
dismissed. 
>That was because the additional charges had been brought out of time. A
submitted 
>at trial that he had a defence under s.160(2)(a) of the 1988 Act, namely that 
>he had a legitimate reason for having the photographs in his possession, the 
>purpose of academic research. The case, as stated, indicated that the
magistrate 
>would have rejected that defence on the facts. The following questions were 
>posed by the magistrate. (i) "In respect of a charge of 'possession' of an 
>indecent photograph of a child under s.160(1) of the 1988 Act (supra), was 
>I right to hold that it was an offence of strict liability, mitigated only 
>by the three available statutory defences in sub-sections (2)(a), (b) and
(c)?" 
>(ii) "In respect of the defence of "legitimate reason" under s.160(2)(a) was 
>I right to hold that the defence is limited to specified anti-pornographic 
>campaigners, defined medical researchers and those within the criminal justice 
>system, namely magistrates, judges, jurors, lawyers and forensic scientists 
>who duties in the enforcement of law necessitate the handling of material in 
>each particular case, and that the defence is not capable of including
research 
>into child pornography even if "honest and straightforward"?" (iii) "In
respect 
>of a charge of "making" an indecent photograph of a child under s.1(1)(a) of 
>the 1978 Act was I right to hold that it required some act of manufacture
namely: 
>"creation, novation or fabrication" and that "making" does not mean "stored, 
>isolated or reserved in whatever form", or copying an image or document
whether 
>knowingly or not?". A contended that he ought not to have been convicted of 
>possession given that his knowledge as to the existence of the cache could 
>not be proved. The DPP however argued that A should have been convicted on 
>the "making" charges in respect of both the material in the cache and that 
>deliberately saved material on the computer directory irrespective of whether 
>he knew of their existence. The sole issue in G's case was whether a
particular 
>item was a pseudo-photograph within the meaning of s.7(7) of the 1978 Act. 
>The item was a montage of two different photographs, hinged with sellotape 
>so that the photograph underneath could be rendered indecent by the one on 
>top. The question posed for the High Court was as to whether the magistrates 
>were correct to decide that the two photographs, stuck together as they were, 
>constituted a photograph. 
>
>HELD: (1) The question of what satisfied the "legitimate reason" defence was 
>a pure question of fact in each case. (2) Until the Criminal Justice and
Public Order Act 1994 there was no offence of "making" indecent photographs,
nor was there any reference 
>in the legislation to pseudo-photographs. Similarly, until 1994 photographs 
>were not defined to include computer images etc. The 1994 Act also introduced 
>the penalty of six months' imprisonment for offences contrary to s.160(1) of 
>the 1988 Act. (3) The magistrate's ruling on "making" flew in the face of R
v Bowden (1999) TLR 19/11/99, which held that a person who either downloads
images onto disc 
>or who prints them is "making" them because the 1988 Act was not only
concerned 
>with the creation of such images but also with their proliferation. Section 
>1(1)(a) of the 1978 Act should be construed as narrowly as possible to protect 
>innocents such as the staff members who copied A's files onto floppy disc. 
>However, R v Bowden (supra) was correctly decided. The magistrate ought to 
>have convicted on the 11 counts on which A was acquitted. (4) There was no 
>defence whatsoever to s.1(1)(a) of the 1978 Act. It did not encompass the
unintentional 
>making of copies; it did not create an absolute offence. Therefore there was 
>no "making" involved in images stored in computer caches. (5) Relevance of 
>knowledge of possession fell to be decided in accordance with general
principle. 
>The present case was most similar to R v Steele (1993) CLR 298 because Steele 
>did not have knowledge of what was in his holdall. A did not even know of the 
>cache's existence. (6) The questions in A's appeal were therefore answered 
>as follows: (i) No: the offence of possession under s.160 was not committed 
>unless the defendant knew that he had, or once had, photographs in his
possession; 
>(ii) No: it is a question of fact in each case whether honest research into 
>child pornography constituted a legitimate reason for possession (making) it; 
>(iii) No: "making" included copying photographs, provided that it was done 
>knowingly. Therefore both parties in A's case succeeded in their appeals. This 
>case called for a conviction and the case would be remitted to the
magistrates' 
>court. (7) In G's case, the magistrates' conclusion that "two photographs
sellotaped 
>together appears to be a photograph" was self-contradictory. Were this item 
>to have been photocopied it could have constituted a pseudo-photograph but 
>that point could not decide this appeal. Therefore G's appeal was allowed. 
>
>
>Appeals allowed. 
>
>Appearances:
>Helen Malcolm instructed by Offenbach & Co for A. Peter Blair instructed by 
>Nile Arnall (Bristol) for the G. Robert Davies instructed by the Treasury
Solicitor 
>for the Director of Public Prosecutions. 
>
>References:
>LTL 3/8/2000 (Unreported elsewhere) 
>
>Judgment:
>Approved subject to editorial corrections - 24 pages 

Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists