R v (1) GRAHAM WESTGARTH SMITH (2) MIKE JAYSON (2002)

[Donald ramsbottom]

Another case on paedophiles and the net. As ever ignore if not interested
in law.




R v (1) GRAHAM WESTGARTH SMITH (2) MIKE JAYSON (2002) 

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)
 2 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. 

Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
Internet and Global Encryption Law Specialists & General UK  Law Matters
5 Seagrove Avenue Hayling Island Hampshire UK
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