England and Wales Court of Appeal (Criminal Division) Decisions

Perrin, R v [2002] EWCA Crim 747 (22nd March, 2002)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd March 2002

Lord Justice Kennedy:

1. On 16^th October 2000 in the Crown Court at Southwark the appellant was convicted of publishing an obscene article (Count 1 in the indictment) and on 6^th November 2000 he was sentenced to 30 months imprisonment. He now appeals against conviction and sentence by leave of the single judge.

Facts

2. The obscene article in question was a web page on the internet, and the case for the prosecution was that on 25^th October 1999 PC Ysart, an officer with the Obscene Publications Unit, in the course of his duties, at Charing Cross Police Station used a computer to access the web page which he found at an identified site. What he did was video-recorded, so in due course the jury was able to see what he found – people covered in faeces, coprophilia or coprophagia, and men involved in fellatio. That web page, and what was shown on it was the subject matter of count 1. It was in the form of a trailer, a preview, available free of charge to any one with access to the internet. Any one wanting more of the type of material which it displayed could click on to a link marked “subscription to our best filthy sites.” The officer did that, and provided his name, address and credit card details. He was then given access to a further web page which formed the subject matter of count 2 in the indictment, of which the appellant was acquitted.
3. On 12^th November 1999 the officer visited the web site again, and the web page which he viewed on that occasion formed the subject matter of count 3, of which again the appellant was acquitted. He did not re-visit the preview page to which count 1 in the indictment refers.
4. Police enquiries then led to the appellant, whose home at Millenium Harbour, London, E14 was visited on 16^th November 1999 by four officers who had a search warrant. The appellant was there, and he was arrested. The premises were searched, and various items were recovered. He was then interviewed, with the assistance of a French interpreter, and in the presence of his solicitor. He said he was a director of Piazza Financial Services, and registrant (or owner) of website URL.www.sewersex.com. That website was registered to a company called Metropole News Group. At a further interview on 22^nd March 2000 the suggestion was raised by the appellant that some competitor might have put something onto his website. There was also some discussion of Metropole’s activities in North America, and the appellant accepted that he was a majority shareholder. He said that he accepted responsibility for its activities, and where sites were developed abroad they were legal where they were managed.

Formal Admission.

5. When the case came on for trial at Southwark Crown Court in October 2000 counsel then appearing for the appellant made a formal admission on his behalf –

“It is agreed and accepted by the defendant that he was legally responsible for the publication of the articles referred to in counts 1, 2 and 3 on the indictment.”

Preliminary submissions.

6. Counsel then made three preliminary submissions – first that the imprecision of the offence charged in each of the counts of the indictment was such that at the time of the alleged offending the appellant was not able to regulate his conduct so as to avoid committing a criminal act, as required by Article 7 of the European Convention on Human Rights. By way of example, count 1 in the indictment read as follows –
Statement of offence Publishing an Obscene Article, contrary to section 2(1) of the Obscene Publications Act 1959. Particulars of Offence

Stephane Laurent Perrin, on the 25^th day of October 1999 published an obscene article namely the web page on the internet at HTTP:/WWW. MetropoleNewsGroup.com/Preview.HTML.

7. The second submission was that the court had no jurisdiction because on the committal papers there was no sufficient evidence of publication within the jurisdiction.
8. The third submission was that as only PC Ysart appeared to have seen the material there was insufficient evidence of it being seen by persons who will tend to be depraved and corrupted by it.
9. The judge ruled in favour of the Crown in relation to all three submissions, and the trial then proceeded.

The Trial.

10. The appellant did not give evidence, and called no witnesses. The statutory definition of what is deemed to be obscene is in section 1(1) of the Obscene Publications Act 1959, which states -

“an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

The judge directed the jury faithfully in accordance with the statute by saying at 7E of the transcript -

“The law says an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) – and here of course you have different images haven’t you – the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

The judge then went on to say –

“All relevant circumstances, members of the jury, since we are talking about modern times, includes the sort of people who these days who have personal computers and who have modems and who have access to surf the internet. I suppose ten years ago it would have been very few people, wouldn’t it, but now, it is a matter for you, you may think there are many people of all ages who sit possibly in their bedrooms at home surfing the internet. Therefore, it is a question for you to decide, having regard for all the relevant circumstances, who might read, see or hear of course does not apply, really does it, the matter contained or embodied in this material which you are considering.”

A little later the judge said –

“The definition of obscenity, members of the jury, contains no requirement as to the number of persons which the articles might corrupt or deprave, but if the seller of pornographic material has a large number of customers who are not likely to be corrupted by such material, he does not thereby acquire a licence to expose for sale, or sell such material to a small number of customers who are likely to be corrupted by them.”

And again a little later, at 15B the judge said –

“This case you are trying is said to involve internet pornography and the case is that this defendant published these three web pages which are referred to in the indictment at counts 1 to 3. He does not deny that he published them, members of the jury, because of course you have got that formal admission, that he was responsible for them. The question for you to decide is whether the material is obscene in accordance with the quite elaborate definition that I have given you.”

11. There was, of course, a distinction between count 1 and the other two counts. That distinction may explain the verdict, and the judge highlighted it in his summing up, saying that count 1 “was material which apparently could be accessed by a person who didn’t have to become a member by using a credit card to subscribe"”
12. After the jury had retired they asked this question –

“Mention of obscenity 1969. Number of persons or proportion of readers likely to be affected. Need clarification on significance of number.”

The judge discussed the question with counsel, and then said to the jury –

“Members of the jury, doing the best I can, the case that I referred to in 1969, the Court of Appeal stated that the jury should in that case, in 1969 or sometime before 1969 because it came to the Court of Appeal in 1969, should have been directed to consider whether the effect of the book in that case was to tend to deprave or corrupt a significant number of those persons likely to read it. However, in another case that came before the House of Lords in 1972, so three years later, but still some decades ago, .. one of their lordships observed that although such direction would have been suitable on the facts of the case, in other words that case, the phrase ‘significant proportion’ cannot be safely transplanted into cases of a different character. So whether it applies in this case, members of the jury, bearing in mind the different character of this case, may be a matter for you to determine. Of course, we are dealing with matters in 1999; we are dealing with the internet, aren’t we, and computer porn as opposed to photographs or magazines, material of that nature. I have already directed you, members of the jury, that with regard to count 1 different considerations may apply, it is a matter for you to decide. With regard to count 1 that was preview material that didn’t have to be paid for by becoming a member. So until the stage when you have to pay with your credit card and become a member, everything that PC Ysart saw was freely accessible to any one who wanted to look or had access to look without any passwords or other means of restricting access.”

The judge then turned to the statutory definition of obscenity and said that it –

“Refers to persons which means some persons though it was said by his lordship in that case, I think in a suitable case, if the number of persons likely to be affected is so small as to be negligible, really negligible, the de minimis principle may be applied. In other words, taking out the latin, if only negligible numbers were involved then it would not be covered by the test of obscenity, there have to be numbers of some significance.

But, I go on to what was said in that case, -

If the seller of pornographic books (or material in this case) has a large number of customers who are not likely to be corrupted by such material he does not thereby acquire a licence to expose for sale or sell such material to a small number of customers who are likely to be corrupted by it.

Because as I said before, in that House of Lords case, it was held that the Obscene Publications Act was not merely concerned with the once and for all corruption of the wholly innocent, it equally protected the less innocent from further corruption and the addict from feeding or increasing his addiction.”

The jury was then sent out to continue their deliberations. In due course, as we have said, they returned verdicts of not guilty in relation to counts 2 and 3, and convicted on count 1.

The appeal.

13. There are four grounds of appeal against conviction advanced by fresh counsel, Mr Fulford QC and Mr Southey.
14. The first ground of appeal is that the conviction violated the appellant’s rights under Article 10 of the European Convention – not a point taken in the court below. Next it is contended that the conviction violated his rights under Article 7, in that his conduct was not prescribed by law. The third ground of appeal is that the judge was wrong to reject the submission that the only relevant publication of the web page was to the officer who down-loaded it, and therefore it is wrong to test obscenity by reference to others who might have access to the preview page. Finally it is contended that in answering the jury’s question the judge was wrong not to say in clear terms that it was necessary for a significant proportion of those visiting the web page to be affected by it.
15. In his submissions to us Mr Fulford began by addressing the two grounds of appeal founded on domestic law, namely grounds 3 and 4 and we will adopt the same approach.

Ground 3: Relevant Publication

16. In quoting from the summing up we have already set out the terms of section 1(1) of the Obscene Publications Act 1959 as amended. It states that an article shall be deemed to be obscene if its effect is “such as to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to .. see or hear the matter contained or embodied in it.” Section 1(2) defines “article” in a way that clearly embraces the web page with which we are concerned, and section 1(3) provides that for the purposes of the Act a person publishes an article who –

“(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or

(b) in the case of an article containing or embodying matter to be looked at ... where the matter is data stored electronically, transmits that data. ”

The words in italics were added by the Criminal Justice and Public Order Act 1994 section 168(1) and Schedule 9 Paragraph 3.

17. So far as count 1 was concerned the sole evidence of publication adduced at the Crown Court was of one visit by PC Ysart to the relevant web page, the preview page. There was, as Mr Fulford pointed out, no evidence as to how long the web page had been in the form in which it was when seen by PC Ysart, and there was no evidence as to who, other than the officer, had visited that web page. Mr Fulford submitted that the court was not entitled to speculate. Such web pages are easy to alter, and although there was evidence of visits to pages for which payment had to be made (i.e. those featured in counts 2 and 3) those pages could be visited without first visiting the preview page. Mr Fulford submitted that in reality the preview page would not be visited by accident. To reach it a viewer would have to type in the name of the site, or conduct a search for material of the kind displayed. That, Mr Fulford submitted, is the modern equivalent of entering a shop selling pornographic books, and selecting a book, and there is authority for the proposition that if such a book is only seen by an investigating officer who is unlikely to be depraved and corrupted by it the requirements of section 1(1) are not satisfied.
18. In R v Barker [1962] 46 Cr App R 227 the Court of Criminal Appeal considered section 1 of the 1959 Act in its unamended form. The appellant had advertised in magazines and four customers had then sent for and obtained from him photographs which were said to be obscene. Ashworth J, giving the judgment of the Court, analysed section 1(3)(a) of the Act. Paragraph (a) is not directly relevant for present purposes, but the analysis is informative. At 230 the judge said –

“The forms of publication included in the definition in section 1(3)(a) fall into three distinct groups: in one group, comprising the words ‘sells, lets on hire, gives, or lends’ publication is to an individual; in the second group, comprising the words ‘distributes, circulates,’ publication is on a wider scale, involving more than one person; in the third group a mere offer for sale or letting on hire constitutes publication.”

Applying that approach to paragraph (b), a mere transmission of data constitutes publication, and it is clear from the decision of this court in Waddon 6^th April 2000 unreported, that there is publication for the purposes of section 1(3) both when images are uploaded and when they are downloaded.

19. The court in Barker then addressed itself to the questions which arise in relation to section 1(1) once publication is established but, as Mr Patterson for the respondent pointed out in his submissions to us, the analysis was specifically confined to cases falling within the first group which had been identified in the analysis of section 1(3)(a). The judgment continued –

“In a case falling within the first group the first issue for the jury (assuming that publication is admitted) is whether the effect of the article is such as to tend to deprave and corrupt the individual to whom it is published. The second issue is whether any other person or persons were likely to see the article. In this connection the issue is not whether republication has or has not taken place, but whether it could reasonably have been expected. If the answer to the second issue is ‘yes’, a third issue will arise, namely, whether the article is such as to tend to deprave and corrupt the person or persons to whom republication could reasonably have been expected.”

The first issue had particular relevance to a case where the publication relied upon was in group one. It would for example have no particular relevance to a publication in the third group, or to a publication within the section 1(3)(b) of the type with which we are concerned, but the second and third issues suitably reformulated would remain relevant. The Court would still have to consider –

(1) whether any person or persons were likely to see the article, and if so –

(2) whether the effect of the article, taken as a whole, was such as to tend to deprave and corrupt the person or persons who were likely having regard to all relevant circumstances, to see the matter contained or embodied in it.

20. The other decision to which our attention was drawn in relation to this ground of appeal is R v Clayton and Halsey [1963] 1 QB 163. That too was a decision of the Court of Criminal Appeal. In that case two experienced police officers in plain clothes had entered a bookshop owned by Clayton in which Halsey was his assistant. The officers had each selected a packet of photographs which formed the subject matter of the substantive charges. In cross-examination they both agreed that they had seen thousands of photographs of a similar character in the course of their work, and that the photographs did not arouse any feeling in them whatsoever. Having set out the relevant provisions of the 1959 Act Lord Parker CJ said at 167 that “in the case of the publication of an article by way of sale to a particular person the test of obscenity is whether the effect of the article in question upon that person was such as to tend to deprave or corrupt him.”
21. He then referred to Barker and to the facts of the case which was before the Court. At 168 Lord Parker continued –

“This Court cannot accept the contention that a photograph may be inherently so obscene that even an experienced or scientific viewer must be susceptible to some corruption from its influence. The degree of inherent obscenity is, of course, very relevant, but it must be related to the susceptibility of the viewer. Further, whilst it is no doubt theoretically possible that the jury could take the view that even a most experienced officer, despite his protestations, was susceptible to the influence of the article yet, bearing in mind the onus and degree of proof in a criminal case, it would we think be unsafe and therefore wrong to leave that question to the jury.”

22. Mr Patterson submitted, and we accept, that the present case is different from Clayton and Halsey because this is not a case of publication of an article by way of sale to a particular person. That is not the type of publication relied on. The publication relied on in this case is the making available of preview material to any viewer who may choose to access it (including of course vulnerable young people) and in such a situation the prosecution was entitled to invite the jury to look beyond PC Ysart and to answer the two questions which we distilled from the decision in Barker. That was what was done in this case, and consequently in our judgment there is no substance in the third ground of appeal. Before parting with this ground of appeal we emphasise that section 1(1) of the 1959 Act only requires the jury to be satisfied that there is a likelihood of vulnerable persons seeing the material. The prosecution does not have to show that any such person actually saw it or would have seen it in the future.

Ground 4: The jury question.

23. Mr Fulford contends that in law it was necessary if the jury was to convict for them to be satisfied that a significant proportion of those visiting the web page were vulnerable, that this issue was not clearly dealt with in the summing up in the passages quoted above, and that, when it was highlighted by the jury’s question, the answer to that question given by the judge was muddled. We agree that the answer was far from clear, but in order to reach a conclusion as to the effect of that lack of clarity it is necessary first to decide whether Mr Fulford is right in his submission as to the law.
24. In R v Calder and Boyars Ltd [1968] 52 Cr App R 706 the appellants had been convicted of publishing an obscene article, namely the book “Last Exit to Brooklyn”. Thirteen thousand copies of the book had been sold before the prosecution was launched, and when dealing with the judge’s direction in relation to section 1(1) of the 1959 Act as to the meaning of obscenity Salmon LJ, giving the judgment of the Court, said at 711 –

“The only possible criticism that can be validly made of this part of the summing up is that the learned judge gave no guidance to the jury on the difficult question as to what section 1 meant by ‘persons’ who are likely to read that book. Clearly this cannot be all persons; nor can it mean any one person, for there are individuals who may be corrupted by almost anything. On the other hand, it is difficult to construe ‘persons’ as meaning the majority of persons or the average reader, for such a construction would place great difficulties in the way of making any sense of section 4. The Legislature can hardly have contemplated that a book which tended to corrupt and deprave the average reader or majority of those likely to read it could be justified as being for the public good on any ground. This Court is of the opinion that the jury should have been directed to consider whether the effect of the book was to deprave and corrupt a significant proportion of those persons likely to read it. What is a significant proportion is a matter entirely for the jury to decide. It has been persuasively argued by (counsel) that in the absence of such a direction the jury may have thought that they were bound to hold the book obscene if they came to the conclusion that it tended to corrupt and deprave perhaps only four or five of the thirteen thousand persons who bought it. On the other hand, the jury may have thought that they could convict only if the book tended to deprave and corrupt the average reader or the majority of its readers. This court does not consider that the absence of any direction upon the number of persons who might be corrupted and depraved could, by itself, vitiate the conviction.”

Section 4 of the Act is the section which enables the defendant to argue that publication of the article is justified as being for the public good. It is not a section with which we are concerned in the present case.

25. In our judgment the passage from the judgment in Calder and Boyars which we have cited was an attempt by the court to address a particular problem created by the facts of that case. Where a large number of copies of the book had gone into circulation and, in a situation where a section 4 defence was raised, if the word “persons” was given the widest possible meaning injustice might be done to the defendant because, as Salmon LJ said, “there are individuals who may be corrupted by almost anything”. Although the words of the statute remain the same, their application is bound to be somewhat different when what is alleged to be obscene is accessible material on a web page in relation to which a section 4 defence could not realistically be raised, and not the printed word in thirteen thousand copies of a book.
26. In DPP v Whyte [1972] AC 849 the respondents were booksellers charged with having obscene articles, namely books and magazines for publication for gain. They were acquitted on the basis that their clientele was already depraved and corrupted, but the House of Lords held that even those already depraved and corrupted could be corrupted further. At 863B Lord Wilberforce said –

“The Act is not merely concerned with the once for all corruption for the wholly innocent; it equally protects the less innocent from further corruption, the addict from feeding or increasing his addiction. To say this is not to negate the principle of relative ‘obscenity’: certainly the tendency to deprave and corrupt is not to be estimated in relation to some assumed standard of purity of some reasonable average man. It is the likely reader. And to apply different tests to teenagers, members of men’s clubs or men in various occupations or localities would be a matter of common sense.”

The last two sentences are particularly relevant in the context of this case where the prosecution contends that likely viewers of preview material did include the young with access to the internet.

27. Lord Pearson directly addressed the numerical issue which we are considering, saying at 864H that in the statutory definition “there is no requirement as to the number of persons, or as to the proportion of its readers, which the article will tend to corrupt and deprave. The word ‘persons’ is plural, but it may include the singular. I think in some cases the rule de minimis non curat lex would suitably be applied.” He then referred to the direction suggested by Salmon LJ in Calder and Boyars and continued –

“That would indeed have been a suitable direction in that case because, on a favourable view, the book could have been regarded as tragic and pathetic rather than pornographic and, if the readers of the book likely to be corrupted by it were only a ‘minute lunatic fringe’ rather than a significant proportion, the book could not fairly be regarded as obscene. The ‘minute lunatic fringe’ would be negligible. But I do not think the phrase ‘significant proportion’ can safely be transplanted to cases of a different character. There is the danger, for instance, of leading a book seller to believe that, so long as he sells a comparatively large number of copies of a pornographic book to persons not likely to be corrupted by it, he can with impunity sell a comparively small number of copies to persons who are likely to be corrupted by it. In such a case, if the comparatively small number of copies is not so small as to be negligible, the statutory definition should be applied according to its terms: the book’s effect, taken as a whole is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read it. ‘Persons’ means some persons. Cockburn CJ in R v Hicklin LR 3 QB 360 did not suggest any requirement as to the number of persons, or as to the proportion of its readers, which a book might tend to deprave and corrupt.”

At 866F Lord Pearson returned to the point saying –

“The statutory definition has been set out above. It refers to ‘persons’, which means some persons, though I think in a suitable case, if the number of persons likely to be affected is so small as to be negligible – really negligible, the de minimis principle might be applied. But if a seller of pornographic books has a large number of customers who are not likely to be corrupted by such books, he does not thereby acquire a licence to expose for sale or sell such books to a small number of customers who are likely to be corrupted by them.”

Our attention was also invited to passages from other speeches, but for present purposes we do not set out those passages here.

28. In R v O’Sullivan [1995] 1 Cr App R 455 the defendant was alleged to have had control of obscene articles (magazines and videos stored in lock-up garages) with a view to their publication by sale or offer for sale in sex shops. It was therefore necessary to have regard not only to the test of obscenity to be found in section 1(1) of the 1959 Act but also to section 1 of the Obscene Publications Act 1964 which deals specifically with obscene articles intended for publication for gain. Section 1(3) of the 1964 Act provides that –

“In proceedings brought against a person under (section 2 of the 1959 Act) for having an obscene article for publication for gain the following provisions shall apply in place of subsections (5) and (6) of that section, that is to say –

(a) .....

(b) the question whether the article is obscene shall be determined by reference to such publication for gain of the article as in the circumstances it may reasonably be inferred he had in contemplation and to any further publication that could reasonably be expected to follow from it, but not to any other publication.”

29. We must therefore approach the decision in O’Sullivan recognising that in that case the relevant statutory provisions included provisions which had no application in the present case. We are not concerned with what publication it may reasonably be inferred that the appellant had in contemplation, or with foreseeable re-publication. After dealing with publication of that kind Bell J giving the judgment of the court said at 466G “in so far as the jury were sure of any of those publications, it had to be sure, finally, that the effect of the contemplated publication or the further publication which could reasonably be expected to follow was such as to tend to deprave and corrupt a significant proportion, that is more than a negligible number of those who were likely, having regard to all relevant circumstances, to read or see the matter contained, or embodied in the relevant magazine or video: see section 1(1) of the 1959 Act.”

At 467C the judge continued –

“In our view it would be better for a judge faced with the problems posed by the 1959 and 1964 Acts to follow the order of the statutory provisions ... without attempting to improve or re-define the wording of the Acts, as the Court in Calder and Boyars Ltd advised, save for some reference to the fact that the persons likely to be corrupted should amount to more than a negligible number.”

30. Mr Fulford relies on those passages to support his submission that a clear reference to a tendency to corrupt more than a negligible number of viewers was a necessary part of a proper direction in the present case. We do not agree. As Lord Pearson indicated in DPP v Whyte at 865 the direction, which was entirely appropriate in Calder and Boyars Ltd and, we would add, in O’Sullivan, cannot safely be transplanted to cases of a different character. Where, as in the present case, there is and can be no suggestion that publication is for the public good and the provisions of the 1964 Act are not in issue we see no reason why the task of the jury should be complicated by a direction that the effect of the article must be such as to tend to deprave and corrupt a significant proportion, or more than a negligible number of likely viewers. Such a direction is all too likely to give rise to a request for further assistance as to what proportion is significant, or what number is negligible, and where the direction is unnecessary it is much better, in our judgment, for the jury to be directed simply in accordance with the words of the statute: see paragraph 10 above.
31. Nonetheless, despite the somewhat rambling nature of the judge’s directions in response to the question posed by the jury, we consider that it was made clear that it was necessary for more than a negligible number of persons to be likely to see the material, and in our view that did not detract from the wording of the statute in any way disadvantageous to the appellant. Even if we had concluded that a “significant proportion” direction should have been given in clear terms we note that in both Calder and Boyars Ltd and in O’Sullivan the court concluded that the absence of such a direction did not vitiate the convictions, and we would have come to the same conclusion.

Ground 1: Article 10: Appellant’s case

A. General Submissions.

32. Article 10 of the European Convention on Human Rights gives everyone a right to freedom of expression, but Article 10(2) provides that the exercise of that freedom –

“... since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society .... for the prevention of disorder or crime, for the protection of health or morals.”

In his first ground of appeal the appellant contends that there was no evidence to rebut his statements in interview that the major steps involved in publishing the web page that resulted in his conviction were in a jurisdiction where the material published was lawful. He relies on “the lack of precision in the statutory definition of obscenity”.

33. Mr Fulford’s core submission in relation to this part of the case is that because of the world wide accessibility of the internet, helpfully described in the opinion of the United States Court of Appeal (Third Circuit) in ACLU v Reno (No 3) [2000] 217 F.3d 162 at 168-169 any court or jury asked to consider whether there has been publication by a defendant of a web page which is obscene should be instructed to consider first where the major steps in relation to publication took place, and only to convict if satisfied that those steps took place within the jurisdiction of the court. Mr Fulford frankly concedes that there is no English or European authority to support that submission, which involves writing words into section 1(3) of the 1959 Act, but he submits that, having regard to Articles 7 and 10 that adjustment or “interpretation” is necessary and represents a workable solution to a problem created by a relatively new medium. As he points out, there was no evidence as to where the data files were created and posted, and there was no evidence as to the location of the server.
34. Mr Fulford reminded us that in Sunday Times v UK (No 1) [1979] 2 EHRR 245 the European Court of Human Rights stated at paragraph 49 of its judgment –

“The following are two of the requirements that flow from the expression ‘prescribed by law’. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”

Mr Fulford submitted that because of the worldwide nature of the internet it is difficult for the publishers to comply with the statutory requirements of individual states, and if they are obliged to do so the most restrictive laws will prevail.

35. In Groppera Radio AG v Switzerland [1990] 12 EHRR 321 the applicant had broadcast from Italian territory radio programmes intended for the Swiss which were received over the air and through redistribution on Swiss territory by Swiss companies operating cable networks. Swiss legislation inhibited the activities of the Swiss companies and the applicant complained that the ban on cable transmissions infringed the applicant’s rights under Articles 10 and 13 to impart information and ideas regardless of frontiers. The European Court found the Swiss laws to be sufficiently accessible, and that there was no breach of either Article 10 or Article 13. The decision in relation to Article 10 was by a majority, and Mr Fulford invited our attention to the dissenting opinion of Judge Pettiti who focussed on the fact that Groppera was an Italian law company operating in Italy. At 349 he pointed out the value of trans-border broadcasts in encouraging democracy, and said that the court should uphold and promote freedom of expression.
36. Mr Fulford then invited our attention to a number of decisions of courts in the United States of America where attempts to protect vulnerable viewers have been held to fall foul of the provisions of the constitution. In ACLU v Reno (No 3) (supra) the court reluctantly upheld the issue of a preliminary injunction against the Attorney-General to prevent the enforcement of the Child Online Protection Act on the basis that it violated free speech guarantees. At 173 the court made it clear that it based its determination on COPA’s reliance on “contemporary community standards” which in the American Libraries case [1997] 969 F.SUPP. 160 had been held not to exist nationwide. At 176 the court recognised that “web publishers cannot restrict access to their site based on the geographic locale of the internet user visiting their site”, and it is clear from the judgment that the argument which we have heard as to the power of the most restrictive state laws was fully deployed. It is however important to recognise that there is nothing in the American authorities to suggest that the court had any power to balance the needs of vulnerable children against the constitutional requirement to safeguard freedom of speech.
37. Mr Fulford submits that in Europe the problems are the same as those which have been experienced in the United States. Community standards as to what tends to deprave and corrupt are not Europe-wide, and the court should look at the problem from the point of view of a publisher who is prepared to comply with the law. He cannot attach a condition that there will be no access to his material in a given country, although a service-provider could operate such a limitation.
38. In the American Libraries case (supra) the District Judge in New York emphasised the importance of inter-state commerce and said at 183 that “haphazard and unco-ordinated state regulation can only frustrate the growth of cyberspace.” The same points were made by the District Court in Michigan in Cyberspace Communications Inc. v Engler [1999] 55 F.Supp. 2d 737, and Mr Fulford submits that they apply to the case with which we are concerned.
39. Mr Fulford pointed out that Article 49 of the European Community Treaty provides that –

“restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.”

But Article 46 enables the provision of services to be restricted stating that –

“The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment of foreign nationals on grounds of public policy, public security or public health.”

As Mr Fulford accepts, limitation on access to pornography can be justified on grounds of public policy, and we are unable to discern anything which the provisions of the Treaty add to the submissions made in relation to Article 10 of the Convention.

40. Our attention was drawn to the European Commission’s Green Paper on the Protection of Minors and Human Dignity in Audio Visual and Information Services [1996] which recognises the urgency of the problem, and “the limits to purely national solutions and the difficulty of devising and applying world wide solutions”. The aim of the paper was to “help create the conditions for the establishment of a coherent framework for the protection of minors and human dignity in audio visual and information services in the European Union.” As can be seen from the body of the paper, the aim has yet to be achieved, but, as the paper recognises, the present position is that –

“Prohibitions on general categories of material detrimental to human dignity, such as material that is obscene, contrary to sound morals or indecent, exist in most Member States. Sometimes the terms are defined by the legislation; elsewhere, their meaning falls to be determined by the courts. And the same concept may be used to underpin both a blanket prohibition and a more flexible solution in which material is restricted depending on the potential audience or on the medium used.”

Some types of material (i.e. child pornography) are regarded by the paper as unacceptable anywhere, but as to the other types of material the Commission reported that –

“The differences between national rules and their lack of transparency makes it more difficult to apply existing national rules to international services and networks and involve the industries in questions at European level. Moreover, they can generate disproportionate barriers to the free movement of services in the Community and make it harder to defend shared values in international fora.”

B. Prescribed by law.

41. Having concluded his general submissions in support of the argument that an internet publisher should only be prosecuted, if at all, in the country where the major steps in relation to publication could be shown by the prosecution to have taken place, Mr Fulford went on to focus on the wording of Article 10(2) and to submit that the offence charged is not sufficiently “prescribed by law” because the statutory definition of obscenity lacks sufficient precision, and the restriction which the statute imposes is not shown to be “necessary in a democratic society”.
42. Mr Fulford submitted that an activity will only be satisfactorily prescribed by law if the person contemplating engaging in it can know with reasonable certainty by reference to statute and/or case law whether what he has contemplated doing will be held to be illegal. That necessary degree of certainty is, Mr Fulford submits, lacking where the critical decision as to whether an article is to be regarded as obscene is habitually left to a jury. In Muller v Switzerland [1991] 13 EHRR 212 the European Court rejected the submission that the word “Obscene” in the Swiss Criminal Code was too vague to enable the individual to regulate his conduct, saying at paragraph 29 of the judgment that –

“The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague ..... criminal law provisions on obscenity fall within this category.”

The Court went on to point out that there were a number of decisions which were accessible and which supplemented the letter of the Code. That, Mr Fulford submits, cannot be said of jury decisions which are not accompanied by reasons. The recent decision of Hooper J in R v Video Appeals Committee of British Board of Films Classification Times 7^th June 2000 shows, it is submitted, the problems which can arise with different views of what constitutes obscenity. Mr Fulford accepts that the problem will not arise in every case. In Wingrove v UK [1997] 24 EHRR 1 the European Court recognised at paragraph 44 of the judgment that “the offence of blasphemy cannot by its very nature lend itself to precise legal definition” but in paragraph 43 the Court went on to say –

“There appears to be no general uncertainty or disagreement between those appearing before the Court as to the definition in English law of the offence of blasphemy ... having seen for itself the content of the video work, the Court is satisfied that the applicant could reasonably have foreseen with appropriate legal advice that the film, particularly those scenes involving the crucified figure of Christ, could fall within the scope of the offence of blasphemy.”

C. Necessary in a Democratic Society

43. Mr Fulford accepts that under Convention law regulation of morals is normally regarded as a matter for individual states, but he submits that a more stringent view should be taken in relation to the internet because of the difficulty of knowing where it will be viewed. Different considerations arise in relation to material such as child pornography, which almost everyone agrees should be banned, but for the rest it is appropriate to have regard to reality. If a mass of such material is going to be available anyway, why is it necessary in the democratic society to attempt to inhibit a small part of it? If inhibition is necessary it can be achieved more effectively in other ways, for example by industry self-regulation, blockage by service providers, and steps taken in the home.

Ground 2: Article 7

44. As Mr Fulford recognised, this ground of appeal, namely that the conduct complained of was not prescribed by law for the purposes of Article 7, added nothing to the submissions which he made under Article 10, and we need say no more about it.

Article 10: Respondent’s case

45. Mr Patterson accepted that Article 10 was engaged, but submitted that there is here a restriction prescribed by law and necessary in a democratic society, as recognised by Article 10:2. He submitted, and we accept, that the protection to be afforded to freedom of expression varies to some extent with the subject matter. Responsible exchange of political ideas attract more protection than projection of pornography for gain (see Wingrove (supra) at paragraph 58 of the judgment).
46. As to what is prescribed by law Mr Patterson submits that the1959 Act and the decisions made under it do provide the necessary degree of guidance. Section 1(1) gives to the word “obscene” a restricted meaning which is more demanding than its dictionary definition. The effect must be such as to tend to deprave and corrupt. There was no such definition in the Swiss Code considered in Muller (supra), and prior to that in 1976 the European Court of Human Rights had considered the application of Article 10 to the English legislation in Handyside v UK [1979 to 1980] 1 EHRR 737, the case about the Little Red School Book. In that case it was accepted by the applicant that the activities complained of were “prescribed by law” and in paragraph 44 of its judgment the Court so found. As already noted the European Court in Wingrove had no difficulty with the English law of blasphemy, and in Hoare v UK application 31211/96 unreported, a case concerned with the mail order supply of pornographic video tapes, the European Commission found that the offence alleged under section 2(1) of the 1959 Act was prescribed by law, for the legitimate purpose of protecting morals. Mr Patterson is therefore entitled to submit, and we accept, that in the present case not only does the statute speak for itself, but there is also a body of European authority to support the proposition that for the purposes of Article 10:2 the offence of which the applicant was convicted was for a legitimate purpose prescribed by law.
47. As to what is necessary in a democratic society, in Handyside the European Court accepted at paragraph 48 that “it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals.” Laws vary from time to time and place to place as to what needs to be done by way of protection of morals, and, the court continued –

“By reason their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as the ‘necessity’ of a ‘restriction’ or ‘ penalty’ intended to meet them.”

Consequently, it was said, Article 10:2 leaves to the Contract State a margin of appreciation –

“This margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the law in force.”

The fact that some European States were more tolerant of the Little Red School Book than others was not found to be persuasive. In paragraph 57 the Court said –

“The Contracting States have each fashioned their approach in the light of the situation obtaining in their respective territories; they have had regard, inter alia, to the different views prevailing there about the demands of the protection of morals in a democratic society. The fact that most of them decided to allow the work to be distributed does not mean that the contrary decision of the Inner London Quarter Sessions was a breach of Article 10.”

In Muller the approach was precisely the same, the Court saying at paragraph 35 of its judgment –

“The view taken of the requirments of morals varies from time to time and from place to place, especially in our era, characterised as it is by a far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than an international judge to give an opinion on the exact content of these requirements as well on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”

In Wingrove the same point was made by the Court at paragraph 53 when it said –

“In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered ‘necessary in a democratic society’ the Court has, however, consistently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a ‘pressing social need’ and whether it was ‘proportionate to the legitimate aim pursued’”.

Finally, in Hoare the Commission pointed out that it could not be said “with any degree of certainty that only the intended purchasers of the film would have access to it and not minors”. The Commission noted the absence of any claim to artistic merit, and concluded that –

“Where obscene video cassettes were distributed to a limited circle of viewers but where there was no further control over them, where the official channels of certification of videos were not used, and where no artistic merit is claimed for the works, the applicant’s conviction for publishing obscene works was proportionate to the legitimate aim pursued.”

48. Of course it can be said that the internet is different, but the problem which it presents was addressed by Parliament when in 1994 it amended the 1959 Act and, Mr Patterson submits, we should be slow to find that an inadequate response. In R v DPP ex parte Kebilene [1999] 3 WLR 972 Lord Hope expressly emphasised the importance of this discretionary area of judgment where choices have to be made by the executive or legislature between the rights of the individual and the needs of society, and said at 994C that “it will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck”. As Mr Patterson points out, that is the situation with Article 10.
49. In HM Advocate v McIntosh [2001] UKPC D1 the Privy Council considered whether confiscation legislation in Scotland violated the European Convention, and Lord Bingham said –

“The statutory scheme contained in the 1995 Act is one approved by a democratically elected Parliament and should not be at all readily rejected. I would for my part endorse the conclusion of the Court of Appeal Criminal Division in paragraph 88 of its judgment in R v Benjafield:

‘It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending. However, in our judgment, if the discretions which are given to the prosecution and to the courts are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a essential public interest, and therefore justifiable.’”

That, Mr Patterson submits, is the approach we should adopt in this case. No one has argued that the protection of minors and other vulnerable people is not an important issue to be addressed. On the other side of the balance sheet, apart from the general right to freedom of expression, there is no public interest to be served by permitting a business for profit to supply material which most people would regard as pornographic or obscene, using that word in its non-statutory sense. Yet, as Mr Patterson points out, the infringement of the appellant’s freedom is limited, as can be seen by reference to the verdict of the jury on counts 2 and 3, and, although the protection to vulnerable people which is afforded by the 1959 Act may be limited, there is no reason why a responsible government should abandon that protection in favour of other limited remedies already available to parents and others as advocated by Mr Fulford.

50. The United States authorities are, Mr Patterson submits, of limited value because of the protection given to free speech in the United States constitution, and the different inter-relationship between the states. The wording of Article 49 of the Treaty is not directly relevant, nor is the dissenting opinion of Judge Pettiti in the Groppera case.
51. Finally, on the jurisdictional point, Mr Patterson submitted that, for the reasons given by this court in Waddon supra, there was publication when anyone accessed the preview page, and he rejected entirely Mr Fulford’s submission that a prosecution should only be brought against a publisher where the prosecutor could show that the major steps in relation to publication were taken within the jurisdiction of the court. Not only would that lead to publishers taking their major steps in countries with the most relaxed laws, but such countries might also have little interest in prosecuting, especially if the offensive material was targetted elsewhere.

Ground 1: Conclusion.

52. In the result we are satisfied that the statutory provision relied upon does fall within the scope of Article 10:2. For a legitimate purpose the offence was prescribed by law. Parliament was entitled to conclude that the prescription was necessary in a democratic society, and the publication shown by the evidence was sufficient to give jurisdiction to the court. We reject the suggestion that it is ever necessary for the Crown to show where the major steps in relation to publication were taken. Ground 1 of the Grounds of Appeal therefore fails, and as Ground 2 adds nothing it too fails. The appeal against conviction is therefore dismissed.
(There followed an appeal against sentence)

LORD JUSTICE KENNEDY: We turn to the appeal against sentence. Mr Fulford makes the point, which we accept, that this is the first occasion on which this appellant has been convicted of an offence of this kind. He has previous convictions, it appears, for offences of dishonesty in France but nothing for an offence of this kind. As Mr Fulford accepts, he is not entitled to any credit for a plea of guilty because he was convicted of the offence. The point is made that there was sufficient uncertainty about the nature of the criminality to make it unsurprising in the circumstances that there was a contest in relation to his criminal liability for what he had done. That is a point we find some difficulty in accepting. The reality is that he was convicted of an offence to which he could have pleaded guilty.

It is pointed out that this was material that had to be sought out. That, of course, is true. As Mr Fulford accepts, it was available to the young but they had to seek it. On the other hand, it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected, so far as is possible, by the law. There is, as Mr Fulford submits, difficulty with the worldwide web, but it is through the worldwide web that people are able to make very substantial profits.

This appellant, although he may have had difficulty in knowing what was legal and illegal in different countries worldwide, actually lived in the United Kingdom, where, as was found in the court below, this offence was committed. We do not find it easy to accept he had any difficulty in finding out whether what he was publishing was acceptable in this country.

Finally it is submitted that, if one looks at the authorities, sentences passed in relation to other offences were not of this magnitude, at any rate where the offence was not, on the face of it, relating to child pornography. That is true so far as it goes, but again the danger in relation to this type of offence was its accessibility to the young and vulnerable. In those circumstances it seems to us that, bearing in mind the statutory maximum of three years, the judge adopted the right approach in this case, and we see no reason to interfere with the sentence which he imposed.

The appeal against sentence is dismissed.

(There followed discussion regarding leave to appeal. Time was extended to 8 weeks from today to enable application to be made for leave to appeal and to re-formulate wording of questions to be considered for certification)