England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT TAUNTON
HIS HONOUR GRIGGS

		Royal Courts of Justice Strand. London. WC2A 2LL
		05/12/2007

Mr. Justice Cranston:

1. The appellant was convicted on 8^th November 2006 at the Crown Court at Taunton of one count of possessing indecent photographs of a child. At the same time he was acquitted of 7counts of making indecent photographs of a child. HH Judge Griggs had ordered his acquittal of a further 3 counts of the latter offence. He was sentenced to pay a fine of £400 or serve 14 days imprisonment in default. Having been convicted of this offence he was required to comply with the provisions of Part 2 of the Sexual Offences Act (notification to the police) for five years. He now appeals to this court on the grounds first, that the judge misdirected the jury on both the factual and mental elements of the offences; and secondly, that the conviction is unsafe because of the inconsistencies between what the jury did in acquitting him of the making offences but convicting him of the possession offence.

Background

2. At the time of the offence the appellant was a solicitor, practicing in criminal law. On the 19^th December 2002 police officers attended his home and seized his computer. Experts examined the hard drive of the computer and found a number of sexually explicit images. The images were placed into the categories, now well accepted and adopted by this court in R v Oliver [2002] EWCA Crim 2766; [2003], Cr App R 463. The categories originally derive from the work of the COPINE project of University College, Cork. Of the six images which remained in the possession count, for which he was sentenced, one fell into category 4 (penetrative sexual activity between adults and children) but the remainder into category 1 (erotic posing but no sexual activity).
3. The prosecution case was that the photographs were indecent photographs of girls under the age of 16. The appellant was a regular user of pornographic web sites and was aware that illegal photographs appeared on those web sites by way of an automatic ('pop up') mechanism. He was also aware that they would be stored on the hard drive of his computer. In the prosecution's case since he was aware that the indecent images were stored on his hard drive he was in possession of them. In a concession by the prosecution it accepted that it would need to prove, in relation to the images in the possession count, not only that the appellant was in possession of them but also that he made them. This is the reason that the jury had to be satisfied as to both making and possession in relation to the possession count. It is also the reason that he was only sentenced in relation to six images on the possession count: then the six images were not associated with any of the images on the making counts on which he was acquitted.
4. In his evidence at trial the appellant accepted that he viewed adult pornography on the internet. He accepted that he had searched a number of sites including "Animal sex with Lolita's" and "Free Lolita videos" but did not concede that the "Loltita" referred to under age girls. Before his arrest, he said he did not know that by accessing material on a web page it would be stored on the hard drive. He said that he assumed there would be a record of a page visited, but not the contents of the page. He said that when he saw the images which the experts retrieved in his second interview he was 'gobsmacked' by the sight of them. He denied ever having seen them.
5. In respect of the 16 images in the possession count the appellant said that of those accessed on 17^th October 2002 his son, was using the computer. He pointed out that although his credit card details were used for an on line transaction on that date the application was rejected as the person did not provide the security code on the back of the card. The following day, he said, when other images in the possession count were accessed, His son was not at school, despite the fact that school records showed that he registered both in the morning and afternoon. He said that he went to work leaving his son at home. In respect of the ten images down loaded on 24^th October 2002 - other images in that count - the appellant said that his son was not at school despite school records to the contrary. He said that the images were from the kind of site he would seek to avoid. He said that although he had had experience of coming across sites of that nature he had stopped using them because they were unsafe and unreliable as a result of the sheer numbers on the page, of which only a small fraction were shown. In respect of a particular picture to which he was referred he said that the site would not make him think the picture was of an under age girl. He did not concede that the pictures were of persons under 16 but repeated that it was the sort of site to keep clear of. For the remaining images in the possession count the appellant gave similar explanations.
6. So the defendant's case was that the jury could not be sure that it was he, rather than his son Oliver, who downloaded the illegal images. While he accepted that he visited legal adult pornographic websites, he did not accept that he was aware that material appearing by way of automatic mechanisms such as "pop ups" would be stored on his hard drive. Furthermore, it was his case that it was not possible to conclude that the images were of persons under the age of 16. He denied knowledge that the images had been stored to his hard drive and therefore denied possession of them.
7. Thus issues for the jury were whether the images stored there were of persons under age and were of an indecent nature. The jury then had to be sure that the appellant was the person responsible for accessing the images and that he knew that such material would then be automatically stored to the hard drive. Finally the jury had to be sure that the appellant knew that his browsing would or access illegal images, or be likely to do so. As we have said the jury were not sure that the appellant was guilty of the making counts which were before them although they did convict on the possession count.

The Law

8. The law in this case is relatively straightforward, although some commentators have said that it could be redrafted in clearer terms e.g. D. Ormerod [2000] Crim LR 381, 383. As we see it the main difficulty comes from applying the law to the rapidly changing nature of the internet. That task is assisted by bearing in mind the policy behind the law, which is to choke off the demand for this type of material, which lends to the exploitation and degradation of children. The seriousness with which parliament treats this matter is evident in the consequences on conviction: not only is an offender punishable in the ordinary way but there are legal implications such as having to report to the police as to residency and holiday movements.
9. The two offences prosecuted in this case are making indecent photographs of a child and having such photographs in one's possession. The more serious of them, the making offence, arises under section 1 (1) (a) of the Protection of Children Act 1978. The maximum sentence is 10 years. There is no defence in the legislation for this offence. That being the case, the courts have said it should be construed as narrowly as it reasonably can be to avoid unwelcome consequences: Atkins v Director of Public Prosecutions [2001] 1 WLR 1427, 1437, per Simon Brown LJ. The possession offence is contained in section 160 (1) of the Criminal Justice Act. Section 160 (2) contains a number of defences. One defence is that the person charged has not seen the photograph and did not know, nor had cause to suspect, that it was indecent; another is that the photograph was sent to him without prior request and he did not keep it for an unreasonable time: s160 (2) (b), (c). Possession offences are punishable by a maximum of 5 years imprisonment.
10. Many of the elements of these two offences- making and possession - are straightforward. "Indecency" is measured objectively and is a matter for the jury. Images on a computer are photographs for the purposes of these offences. Children are those who appear to be under age - necessary because it will be impossible to know, especially where those being exploited are abroad, just how old they really are. "Making" has its own ordinary meaning, namely to cause to exist, to produce or to bring about: R v Bowden [2001] QB 88; [2000] 1 Cr App R 438. The physical element of possession, as in the other areas of criminal law, means to be in a person's custody or control.
11. As to the mental element of the two offences, there is now clarity. They are not absolute offences. With the making offence what is necessary is "a deliberate and intentional act, with knowledge that the image made is, or is likely to be an indecent photograph of a child", R v Smith; R v Jayson [2002] EWCA Crim 683; [2003] 1 Cr App R 212, [34]. The mental element of the possession offence is knowledge on the part of the defendant that he has indecent photographs in his possession or that he once had them: Atkins v Director of Public Prosecutions [200]1 1 WLR 1427, 1440.
12. What does all this mean in the context of images viewed on the internet? As we have said in R v Bowden [2001] QB 88; [2000] 1 Cr App R 438 held that downloading an image from the internet constitutes making that image. This reflects the reality of the internet that downloading means that a new copy of the image is created. That occurs if the person saves it, and in any event because the computer automatically copies it to the hard drive. Similarly there is copying when opening an e-mail attachment as in R v Smith; R v Jayson [2002] EWCA Crim 683. In all these cases there needs to be the mental element. That is clear with a person saving an illegal image. In the case of automatic copying to the hard drive the mental element is satisfied if the defendant knows that the images viewed are automatically save it there. With opening an e-mail attachment, at its lowest, the mental element is satisfied if the defendant knows that it contains, or is likely to contain, illegal images.
13. Possession is straightforward when the defendant knowingly downloads and saves an illegal image. He has custody and control because he can readily call it onto the screen. If the defendant has not saved the downloaded illegal image, the legislative intention is still that he may have possession of it. That follows because, as we have noted, section 160 (2) of the Criminal Justice Act 1988 provides a defence to possession, but only if the defendant had not seen the image or did not know, nor have cause to suspect, that it was indecent, so if the image was sent to him without prior request and he did not keep it for an unreasonable time. The separate legitimate reason excuse in section 160 (2) (a) is not relevant to this discussion). In the case of an image not deliberately saved the defendant can still be said to have possession of it if, albeit for a very short time, he knew he had possession, or if he knows he still has it in the computer's hard disc; see Atkins V Director of Public Prosecutions [2002] 1 WLR 1427, 1440.

The appellants argument

14. In an attractive submission Mr Tedd QC for the appellant says that the present case is novel. It involves "pop up" activity, or redirection to other web sites, caused automatically by the computer language associated with particular web sites. It was common ground that adult pornographic sites often incorporate these automatic "pop ups" or redirections. In Mr. Tedd's submission a person cannot be said to make an illegal image if, when using his computer to browse the internet, he intentionally accesses an web site comprised of lawful, albeit pornographic, material, but without further action on his part the programming associated with the site causes illegal material to "pop up" or results in access to sites which contain illegal material.
15. In legal terms, the appellant's submission is that the factual aspect of making is absent. It is not the user who makes the resultant images but the creators of the original web page. He distinguishes the type of situation in R v Jayson [2003] 1 Cr App R 13, when the computer user deliberately opens an e-mail attachment which causes the contents of the attachment to be stored.
16. Moreover, says the appellant, the mental element of making and indeed possession, are absent as well. In his submission the mental element of making the illegal image is that it was made intentionally, knowing at the time it was made that it was, or was likely to be, an indecent photograph of a child. In relation to possession, the mental element is knowledge that the appellant had in his control or custody an image which was or was likely to be, an indecent photograph of a child.

Conclusion

17. We reject the notion that with automatic "pop up" type activities it is the web site's designer, not the user, who makes the image. It is contrary to authority and to the ordinary meaning of language. Moreover, the jury must have been taken to heave decided against the appellant, as the appellant now concedes, about the existence and function of the computer in storing material automatically. In other words the jury must be taken to have decided that the appellant knew that any images he accessed would be copied - made in terms of legislative language - and stored automatically.
18. It was common ground that, as the appellant admitted he knew, automatic "pop ups" or redirections to other sites would occur when accessing legal pornographic sites. The issue the jury then had to decide was whether the appellant knew the likelihood that in accessing certain sites, illegal material would in this way be accessed. The appellant complains that the judge failed to make the distinction between the likelihood that "pop up" type activity would occur on the one hand and the likelihood that, if it did, illegal material would be accessed on the other. He also complains that there was no evidence that it was possible to predict, before accessing any particular site, whether or not "pop up" type activity would occur and that, further, it would be of illegal images.
19. There are passages in the Judge's summing up where this distinction was not drawn as clearly as I might have been. But we are in no doubt that, in the context of the summing up as a whole the jury knew what they had to be sure not only about and that the appellant knew about automatic "pop up" activity when he accessed adult pornographic sites, but that he knew that in accessing certain sites there was a likelihood that these "pop ups" would be illegal images.
20. In our view there was also enough evidence for the jury to decide the issue of the likelihood that sites, if accessed, would lead to illegal "pop up" activity. Images in the possession count can be associated with particular sites. Thus there was an (evidential) basis for the jury to be sure, based on the appellant's previous use of particular sites, that it was likely to contain illegal images.

Inconsistent verdicts

21. The appellant submits that there is a illogical inconsistency between acquittals by the jury on the making counts and the conviction on the possession count. It will be recalled that the way the prosecution presented the case was that it had to prove "making" in relation to the possession case as well. The inconsistency is said to arise because the appellant's son had to be eliminated as the perpetrator on all counts. The accuracy of the school records, showing the son's presence at school for registration on particular days, was criticised in evidence. Since the jury acquitted the appellant on the making counts it is submitted that it must have accepted the school records were faulty. Thus there then is no logical basis for regarding the school records as any more accurate in respect of the remaining dates of the images in the possession count.
22. Logical inconsistency is never easy to establish in relation to a jury verdict. Here we find no basis for it. For each of the counts, the prosecution had to make the jury sure, in relation to the various elements of the offences as we have set them out above. Eliminating the son as perpetrator was only part of the jury's task. They had also to be sure that the images were illegal. In relation to some of the images the appellant did not concede that they were of persons who were under age. That the jury regarded age or indecency as live issues is demonstrated by their request, after they had retired, for a magnifying glass to examine the images more closely. Thus the acquittal of the appellant on the making counts does not logically imply that they did not accept the evidence of the school records. Their acquittals of the appellant on these counts is equally consistent with them not being sure that illegal images were involved. In any event, we accept the careful submissions of Mr. Mott QC for the prosecution, that the school records were not determinative in relation to some, at least, of the images in the possession count.