England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		5th April 2004

Monday, 5th April 2004.

1. MR JUSTICE GAGE: The claimant in this case, Anthony O'Shea, is now aged 33. He seeks a judicial review of a decision made by a district judge sitting in Coventry Magistrates' Court on 4th November 2003. The District Judge is the defendant, and he has not appeared before this court. The interested party, the Crown Prosecution Service, has appeared before the court.
2. The background to the matter is as follows. Criminal proceedings followed an investigation in the United States in 1999 when it was discovered that a commercial child pornography business, operating from Fort Worth in Texas, was offering to supply child pornography to internet users in the United Kingdom and elsewhere. The business was known as "Landslide Productions Inc", hereafter "Landslide". It was established and operated by Thomas and Janice Reedy, husband and wife, living in Fort Worth. A police investigation in the United Kingdom uncovered evidence to demonstrate that child pornography websites operated by Landslide were accessed by internet users in this jurisdiction and criminal proceedings, we have been told, have been instituted against a large number of individuals.
3. The interested party's case is that there is evidence to demonstrate that the claimant gained access to child pornography sites and paid entrance fees to this site by use of his credit card. It is alleged that on 24th April 1999, the claimant made three attempts to enter websites called "child rape" and "forchild". The evidence is that "forchild" means children forced to have sex. It is said that the claimant successfully registered with the website "forchild" on 23rd April 1999 and 25th April 1999. It is also said that he successfully registered with the website known as "child rape" on 16th August 1999.
4. The claimant was arrested on 4th October 2002. He has been charged with three offences of unlawfully inciting another to distribute an indecent photograph of a child, contrary to common law, and three offences of attempting to incite, contrary to the Criminal Attempts Act 1981. On 4th November 2003 he appeared before the District Judge at Coventry Magistrates' Court and was committed to the Crown Court for trial.
5. By these proceedings, permission having been granted by leave of the Single Judge, he seeks to challenge the decision made by the District Judge to admit a document into evidence, an exhibit. He also seeks to challenge the decision on the basis that there was insufficient evidence to justify his committal. Finally, he challenges the decision on the ground that the evidence discloses the commission of no offence.
6. The prosecution evidence against the claimant comes from a number of sources: namely witnesses who gave evidence of the operations of Landslide in the United States (a former employee and investigating officers); documents obtained from computers operated by Landslide; an employee of Alliance and Leicester plc; a computer expert; and investigating police officers.
7. The committal proceedings were proceedings pursuant to section 6(1) of the Magistrates' Court Act 1980 and the Magistrates' Court Rules 1981. As is well known in such proceedings, the evidence is tendered in documentary form and the prosecutor is entitled to outline the case. No evidence may be tendered on behalf of the defence. In order for the evidence to be admissible at committal, it must be tendered by the prosecution and fall within sections 5B, 5C, 5D or 5E of the 1980 Act.
8. The Crown submits that the evidence provided by a former employee of Landslide and the computer expert established that there was no possibility of a person gaining access to and paying a subscription to view the "child rape" and "forchild" websites by accident. The procedures necessary to gain access to the websites would have involved logging into the Landslide website; choosing to enter a site specifically referred to as child porn and pressing enter; selecting a site after viewing a sample of the images available on the various websites; and completing a registration page with credit card details.
9. In a helpful skeleton argument, Mr Purves, on behalf of the claimant, has summarised the general procedures involved. They are as follows, and it is a summary of the expert evidence.
10. The Landslide web page offered the opportunity of connection by hyperlinks to other websites operated by third parties. Those websites carried prohibited images of children. In offering such access, the Landslide website operated as a portal, meaning a website which is intended to operate as a gateway to other websites via hyperlinks. The person accessing the Landslide website was invited by the pre-programmed content to complete a form, entering certain personal data. That data consisted of their name, address and e-mail address, and also financial information such as credit card details. In that way, the person was able to select which hyperlinked websites could be accessed and could access those websites for a pre-set time, and a predetermined price would then be debited against the nominated credit card.
11. The computer carrying the website was pre-programmed to accept or reject such data. If the data was rejected, no connection to the hyperlinks was possible. If the data was accepted then for a limited period of time, according to the subscription selected, there was connection to the hyperlinks.
12. However, connection to the hyperlinks does not mean access to the websites. Access was obtained by means of a secure password which had to be entered each time the subscriber wished to view those websites. Connection could be made immediately after a subscriber signed up. A password was also e-mailed to him. The remote computer operated by Landslide was pre-programmed to accept or reject passwords as currently valid, expired, or rejected as not valid. All transactions of these kinds were recorded in the database of the remote computer operated by Landslide. They apparently included instances of attempted access to the hyperlinks by a purporting existing subscriber which the database recorded as rejected. All transactions are characterised as being self-populated in that they are recorded not by a human being inputting the data but as a record kept by the computer of the transactions interfaced between the computer, acting in accordance with its programming, and intending or current subscribers or persons claiming to be such subscribers.
13. All transactions between Landslide, the webmasters controlling the hyperlink web pages and the subscribers to the hyperlink web pages were entirely computer-operated, requiring no interactions between human beings.
14. The first point taken on behalf of the claimant is that the District Judge had regard to evidence which was inadmissible. That evidence related to an exhibit produced by Police Constable Sharon Girling, a police officer involved in the investigation. She is, as it appears, an officer from the United Kingdom responsible for the investigation into Landslide. She made two witness statements and produced a number of exhibits. One of those exhibits is document SAG/01 and another is SAG/02. They chart purchases from the websites by an e-mail address which reads "anthony@adpos.freeserve.co.uk". It was accepted by the claimant at interview with police officers that this was his e-mail address. The document contained a breakdown of what it is alleged were successful and unsuccessful attempts by the claimant to enter the websites, and charges made to his credit card. The information contained in the document was obtained from the Landslide database.
15. In her statement dated 18th February 2003, Police Constable Girling stated:

"To gain access to [the] material, anthony@adpos.freeserve.co.uk used a credit card, the details of which are ... "

16. She then set out a Mastercard number with the expiry date of the end of the 10th month of the year 2001. The statement goes on:

"The purchaser was required to complete a registration/sign-up document supplying the website owner with personal information. These details needed to match the billing details of the credit card including the name and address. The subscriber at this stage also had to supply the company with a password. The individual anthony@adpos.freeserve.co.uk, upon registration, supplied their name as Anthony O'Shea and their address 33 Scots Lane, Coventry, West Midlands, CV6 2DQ."

17. There is evidence from a representative of Alliance and Leicester plc to the effect that the Mastercard credit card number was in the name of a card issued to the claimant in October 1998. As we understand it, the evidence of the Alliance and Leicester witness is not challenged by the claimant.
18. As I have indicated, the first point taken by the claimant in these proceedings is that the evidence of the computer printout referred to by the woman police constable is hearsay evidence and inadmissible. It is submitted that the evidence is not merely that of a mechanical record but contained information inserted by a human interaction. The printout is contained in the papers at divider 4, pages 1 and 2. In particular, looking at page 2, there is a printout recording entries on various dates under the name of Anthony O'Shea. The address is given as 33 Scots Lane; the e-mail address is given as I have already described it; a credit card number is given which on five of the occasions is the same as that of the claimant's credit card number. There is then in one column a code in which it appears that the credit card was accepted on four occasions and rejected on three occasions.
19. Finally, dealing with the evidence on this particular point, at divider 5, page 1, there is a computer printout produced by the Alliance and Leicester witness which shows that on 23rd April and 25th April, the claimant's credit card was debited with sums which were payable or paid to Landslide Productions at Fort Worth.
20. The submission made by the claimant is a simple one. It is submitted that the information contained in the computer printout must have been obtained by entry by a human mind keying in the details of the name, address, credit card number and e-mail address. So it is submitted that this consists of hearsay evidence.
21. The interested party contends that it is all real evidence, being a computer printout produced exclusively by a computer without the intervention of the human mind.
22. A number of decisions of this court, the Court of Criminal Appeal and the House of Lords have been placed before us. In my judgment, it suffices simply to refer to the case of R v Spiby (1990) 91 Cr App R 186. That is a decision of the Court of Criminal Appeal presided over by Taylor LJ, as he then was. The facts are very shortly summarised in the headnote at page 186 as follows:

"The appellant was charged with two others with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of controlled drugs. At his trial counsel for the appellant challenged the admissibility of evidence in the form of computer printouts of telephone conversations made from a hotel. The computer functioned automatically without the intervention of any human being."

23. At page 191, Taylor LJ, after referring to the case of Minors and Harper (1989) 89 Cr App R 102, a decision of Steyn LJ, as he then was, went on to refer to an article by Professor Smith dealing with that decision. Towards the bottom of page 191, the judgment of Taylor LJ reads:

"It is helpful to refer, briefly, to the article The Admissibility of Statements by Computer by Professor Smith ... after referring to The Statue of Liberty (supra), Professor Smith said:

"'Where information is recorded by mechanical means without the intervention of a human mind the record made by the machine is admissible in evidence provided, of course, it is accepted that the machine is reliable. An elementary example is a maximum and minimum thermometer. This records two items of information in the course of 24 hours and there is no doubt that a witness could give evidence of the reading he took from it if that were relevant to the issue before the court. A fortiori, the instrument itself could be produced, if it were possible to do so, if it still bore the relevant readings. It would not be necessary to call a professor of physics to prove how a thermometer works because that is, surely, such a matter of common knowledge as to be judicially noticed. The same is true of a camera which photographs an event or a tape recorder which records a conversation where the event or conversation is in issue or relevant to the issue before the court. A radar speedometer similarly makes a record of an event - the speed of a passing vehicle - and it is no different in legal principle from the thermometer.'

"A little later in the same article, at pp 390, 391, the Professor says:

"'The very fact that the computer was not recording information supplied by another not only prevented the act from applying but also makes it clear that it was not necessary to rely on the act at all. Hearsay invariably relates to information which has passed through a human mind. This information never did so.'

"We respectfully adopt that helpful explanation of real evidence. We consider the learned recorder was right in the present case to conclude that the computer print-outs from the Norex machine were real evidence. This was not a print-out which depended in its content for anything that had passed through the human mind. All that had happened was that when someone in one of the rooms in the hotel had lifted the receiver from the telephone and, with his finger, pressed certain buttons, the machine had made a record of what was done and printed that out. The situation would have been quite different if a telephone operator in the hotel had had herself to gather the information, then type it into a computer bank, and there came then a print-out from that computer. There the human mind would have been involved, that would have been hearsay evidence, and sections 68 and 69 would have been in point. However, in the present case, no such intervention of the human mind occurred. What was recorded was quite simply the acts which had taken place in regard to the telephone machinery and there was no intervening human mind."

24. To my mind, as indeed, as it appears, to the mind of the District Judge, the facts in that case are much the same as in this case. What must have happened here was that someone keyed in the details which appear in the computer printout as recorded and produced by the woman police officer.
25. Mr Purves on behalf of the claimant submits that that information is used by the prosecution to show that it was the claimant who keyed in that information. For my part, it seems to me that that argument is fallacious. The purpose of the computer printout was in fact to show what was recorded. It was not evidence of the truth of what was recorded. So for my part, the first point made on behalf of the claimant fails. In my judgment, this computer evidence was admissible as real evidence and qualifies as real evidence as described in Spiby and in the other cases.
26. Mr Purves' argument about the admissibility really moves on and elides with the second argument, which is whether there was a sufficiency of information to connect the claimant with the computer printout.
27. So far as that is concerned, as I have already indicated, the evidence before the District Judge and which will, in due course, if the matter is committed, be before the jury, is that his credit card and his admitted e-mail address is precisely the same as that recorded on the computer printout. There is, as I have indicated, no dispute that the details are his details.
28. Mr Purves submits that that does not go far enough, because anyone with access to his e-mail address and to his credit card could have keyed the information into the computer. That may be so, but I remind myself that at this stage we are dealing with the establishment of a prima facie case. What the interested party has to show at present is that there is evidence to prove an essential element of the offence.
29. In my judgment, the evidence that is admitted, namely the details of his address, e-mail and credit card, is sufficient for a jury to draw the conclusion, if so minded, that the person with that identity was the person who had keyed the information into the computer. Mr Purves' submission that the one does not follow the other in my judgment puts the cart before the horse. Once there is evidence to show that the credit card details are those of the claimant, it seems to me it is sufficient to show that an inference is capable of being drawn that it was him who keyed the information into the computer.
30. Accordingly, in my judgment, the second point fails as well.
31. The next point taken on behalf of the claimant is that the evidence does not disclose any offence. The offence which is charged, as I have already indicated, is one of incitement or attempted incitement. The District Judge's findings in relation to this matter are set out at page 23, to be found behind tab 1 of the documents. He stated:

" ... I accept the argument of the Crown that the defendant's communication did indeed result in the incitement of others to commit an offence. The continued existence of the business operation depended upon the support of fee paying customers who became responsible for the continuation of the automated process. Clearly the writer of the computer programme, which enabled the computer process to take place, required a human mind.

"It is obvious that the business only continued because it was commercially successful. Those who established the business, programmed the computer or were party to it clearly had a real interest in the venture becoming and continuing to be successful. Therefore, each and every subscription encouraged those individuals to maintain the service. Mr O'Shea knew that if he was sent material of the description he wanted it would be an illegal act, yet he incited others to do just that, through the agency of a computer which after all is simply a sophisticated labour saving device.

"There is some small but significant support for the Crown's submission. I note from the banner advertisement for the child rape site, that after a graphic verbal description of the nature of the site there are the words 'The Real Scene Movies Updated Bi Weekly'. The owners were clearly aware of the need to find fresh images and must have been encouraged to do so and distribute such images every time there was a 'sign up'. The defendant clearly intended to incite distribution to himself and in addition did not wish the business to collapse, so destroying the supply of material, and therefore must have intended to encourage the production of more indecent material and the continued distribution of it to himself and to others. This surely was the intention of all subscribers."

32. Mr Purves submits that that finding is in error. He submits that there can be no incitement of a machine. There must be incitement of a human being. That is trite law. He submits that in this case, the evidence shows that it was the computer which was vested with the decision making process, namely of providing the end result, the computer printout. The decision had been made long before by the human mind, namely the setting up of the programme, and therefore, all that was necessary was for the information to be keyed in and the computer programme would produce the relevant images. So, it is submitted, the incitement occurred after the actus reas, namely the fact of the person setting up the programme. Mr Purves relies on a passage in R v Armstrong, a decision of the Divisional Court, which for convenience sake can also be found in R v Goldman, an unreported case for the Court of Criminal Appeal on 12th July 2001. I propose to cite other passages from Goldman before coming to the passage on which Mr Purves relies.
33. At paragraph 21, Clarke LJ, giving the judgment in the case of Goldman, stated:

"21. The ordinary meaning of 'incitement' as adopted in the authorities is that it encompasses encouragement, persuasion or inducement. The following definition was graphically given by Holmes JA in Mkosiyana (1966) 4 SA 655 at 658. 'An inciter ... is one who reaches and seeks to influence the mind of another to the commission of a crime. The machinations of criminal ingenuity being legion, the approach to the other's mind may take many forms, such as a suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity'.

"22. That graphic definition is, in our judgment, essentially the same as that adopted in decided cases in this jurisdiction. Thus in Invicta Plastics Ltd v Clare [1976] Crim LR 131 the Divisional Court held that 'inducement' was usually described to juries by use of words such as 'it involves the suggestion, or proposal, or persuasion, or inducement to commit the offence' which the person charged was alleged to have incited. The Court of Appeal adopted a very similar definition of 'incite' in Race Relations Board v Aplin [1973] 1 QB 815 at 825 per Lord Denning MR."

34. At paragraph 26 of Goldman, Clarke LJ goes on to cite the passage of Armstrong upon which Mr Purves relies. He states:

"In our judgment the Crown has satisfied the test for incitement approved by the Divisional Court in DPP v Armstrong (unreported, 5th November 1999). Lord Justice Tuckey with whom Moses J agreed said this:

"The nature of the offence of incitement is accurately defined in the draft Criminal Code produced by the Law Commission in their paper No 177 at clause 47 which says:

"'A person is guilty of incitement to commit an offence or offences if --

"'(a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and

"'(b) he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences.'"

35. As I have already indicated, the submission made on behalf of the claimant is that, wide as that definition is, it is not sufficient to cover something which involves a mechanical device, namely a computer. It does not in any way involve any human interaction. Accordingly, it is submitted, no human mind can be incited, in this case, by the claimant inserting details into the computer.
36. I have already stated that it is also submitted that the incitement, if it be an incitement, came after the decision was made to programme the computer. Mr Purves also submits that in any event, the entity lying behind the computer was a company, and it is not possible to incite a company.
37. In my judgment, this argument also fails. The fact is that in this case, the claimant's computer communicated with another computer which itself linked up to another website. This process enabled him to gain access to websites which debited his credit card, which was a wholly automated procedure.
38. However, the business operation of Landslide was operated by human beings. The evidence shows that those who owned Landslide Inc were Mr and Mrs Reedy. The computers were used to facilitate the business, and I accept the submission of the Crown that for the purposes of this committal, it is irrelevant to say that it was only the computer which was encouraged to commit the crime. The fact of the matter is that those lying behind it, as the District Judge pointed out, were operating a business. By subscribing through the means of the computer, the claimant was, in my judgment, at least for the purposes of a prima facie case, established as inciting someone, namely those lying behind the onus of the company, to commit the offence. Accordingly, in my judgment, it matters not that the process was entirely automated by means of a computer.
39. Similarly, it seems to me that the prosecution case is correct when it is submitted that by subscribing, the claimant actually encouraged or was inciting the business to continue to the profit of the individuals. For those reasons, in my judgment, that argument also fails.
40. Accordingly, this application for judicial review must be refused.
41. MR JUSTICE KEITH: I agree that this claim for judicial review must be refused for the reasons given by Gage J.
42. MR JUSTICE GAGE: Thank you very much. Are there any applications? No. Very well. Thank you.