Scottish High Court of Justiciary Decisons

DEREK LONGMUIR v. HER MAJESTY'S ADVOCATE [2000] ScotHC 23 (25th February, 2000)

[1] The appellant is Derek Longmuir. He has been indicted on a number of charges in the Sheriff Court in Edinburgh. He has presented a note of appeal against a decision of the sheriff repelling a plea to relevancy stated against part of a charge alleging a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982 as amended. The charge alleges that between certain dates in a house occupied by him, the appellant "did make indecent photographs and pseudo-photographs of children".

[2] The submission made before the sheriff concerned the interpretation to be placed upon the word "make" where it appears in the section in relation to indecent photographs, as opposed to pseudo-photographs, of children.

[3] Before the sheriff and again before this court the Crown and the defence were at one in proceeding upon the factual basis that the Crown intend to lead evidence to the effect that the photographs referred to in the charge consist in data stored on disk, both on hard disk within a personal computer possessed by the appellant and on floppy disk. This data had been obtained by means of a transfer or downloading to the computer from electronic signals in what is commonly known as the Internet. Such data is capable of conversion into a photograph.

[4] The issue is thus a short one. Assuming that it is proved otherwise that such data is capable of conversion into indecent photographs of children, is the act of downloading an act struck at by the terms of section 52 (1)(a).

[5] In rejecting the appellant's submission before him that such an act was not so struck at, the sheriff preferred the Crown's argument that the terms of the section did not contain any manifest ambiguity (as had been submitted by the defence) and that it was neither necessary nor appropriate to go outside the words used to give the section its proper meaning. In so doing the sheriff found himself in agreement with the reasoning of the Court of Appeal in England in the case of R v. Bowden (Court of Appeal 10 November 1999) and was satisfied that the word "make" in the section did apply to "photograph". Accordingly he was satisfied that "a person who downloads images on to disk or who prints them off is making photographs". The sheriff granted leave to appeal as the question was one of general public importance and interest.

[6] The ground of appeal is stated in the following terms:

[7] In renewing the appellant's submission before this court, Mr. Jackson explained that the appeal is only concerned with the reference to photographs in the charge and not with the reference to pseudo-photographs. He began by reviewing the history of the relevant legislation. He pointed out that originally section 52(1)(a) read as follows:

"Any person who

"Photograph" was defined as including the negative as well as the positive version (s.52(8)(c )).

[8] Possession of an indecent photograph of a child was an offence if it was possessed with a view to its being distributed or shown by the possessor or others (s. 52(1)(c) )

[9] In terms of section 160 of the Criminal Justice Act 1988 a new section 52A was inserted into the 1982 Act which penalised the possession of indecent photographs of children.

[10] In terms of section 84 of the Criminal Justice and Public Order Act 1994, section 52(1)(a) of the 1982 Act was amended to read as follows:

"Pseudo-photograph" was defined as meaning "an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph". It was further provided that:

It was also provided that references to an indecent pseudo-photograph included

"(a) a copy of an indecent pseudo-photograph;

For section 52(8)(c) there was substituted the following:

[11] It remains only to note that section 52A of the 1982 Act was amended to penalise the possession of pseudo-photographs as well as photographs (s.84(7)).

[12] Mr. Jackson then submitted that the primary purpose of the amendments to section 52 had been to deal with the problem that had arisen from the advent of the computer and from that the use of computers for the creation of indecent images of children by means of computer-graphics and the like which did not rely simply upon the taking of actual images of children onto film. The mischief struck at was made clear, he said, in the course of a written answer in the House of Commons given by Mr. David MacLean, Minister of State, to a question for the Secretary of State for the Home Department (Hansard H.C. 7 December 1993, vol. 234 col. 161) where it had been said :

The introduction of the word "make" into section 52(1)(a) was intended to refer to the creation of such simulated child pornography. The word "make" covered the process of manufacture or production by combining or bringing together parts or ingredients which was the primary meaning of the word as defined in the Oxford English Dictionary. It was the manufacture or production of pseudo-photography achieved by use of a computer in putting together a number of computer created images so juxtaposed as to create one image which appeared to be an indecent photograph of a child, at which the amendment struck. Because the final image was not a photograph taken of a child it was not struck at by section 52(1)(a) as originally enacted. On the other hand possession of an indecent photograph of a child although not a photograph actually taken by a person onto film but one which had been downloaded by him onto a computer and converted into a photograph, was struck at by the provisions of section 52A. This penalised possession of such an indecent photograph. It was to be noted that the penalties for contravention of section 52(1)(a) were substantially more severe that those for contravention of section 52A. If the Crown submission was correct, the consequence of the amendment was to create a more serious offence for possession of an indecent photograph than had existed prior to the 1994 Act. The reasoning of the Court of Appeal in England in R v. Bowden was unsound. The court had purported to find the natural and ordinary meaning of the word "make" from a secondary definition in the Oxford English Dictionary, namely "to cause to exist, to produce by action, to bring about".

[13] For the Crown it was said that the defence submission did not attempt to construe the words as they appeared in the section as amended. It was common ground that the advances in technology had overtaken the original scope and purpose of section 52(1). The statement made in Hansard had not been in any sense definitive of the legislation that was proposed except that it made clear that the proposals would be directed to dealing with computer pornography and its proliferation. The process which, amongst other things, the amendments sought to regulate began with electronic signals on the Internet generated by others which were capable of conversion into indecent photographs of children if extracted and drawn down into a computer. Such signals could be absorbed or taken into a computer only by operation of the computer. They could then be held as data on hard disk or transferred to floppy disk and held there. If such data was thereafter decoded, it could be presented on screen or printed as photographic images. Operation of the computer was as necessary to the reception and storage of any data on hard disk or floppy disk as operation of the camera was to the reception of the image onto film for the taking of a photograph. The data had no existence in the computer itself unless and until the signals were received into it. Once data drawn from those signals was stored in the computer, it was capable of being converted into photographs. By downloading the electronic signals onto a computer by operation of the computer, a person was enabling the data to become available for further proliferation. The activity of a person in operating the computer to download the electronic signals fell to be distinguished from mere possession of indecent photographs, which did not require that the person in possession should have been responsible for the downloading of the electronic signals which gave rise to the indecent photographs. The reasoning of the Court of Appeal in R v. Bowden was sound and should be followed.

[14] We have no doubt that the submissions of the Advocate Depute are to be preferred and that the decision of the sheriff was correct. We note that the written Parliamentary answer to which reference was made is entirely general in its terms. No reference was made to any material from such Parliamentary debates as may have taken place during the passage of the amending legislation. In any event, as was observed by the Court of Appeal in R v. Bowden, such material is only of relevance where there is some ambiguity or obscurity in the language used in the statute or some absurdity arising from a literal reading of the language of the statute. At best, Mr. Jackson's submission came to this, that Parliament had per incuriam interposed the word "makes" into section 52(1)(a) before the words "any indecent photograph" and introduced the phrase "or pseudo-photograph of a child" after those words without intending that the word "makes" should govern both the reference to "indecent photograph" and "pseudo-photograph". But Parliament amended the definition of "photograph" to include data stored on a computer disk capable of conversion into a photograph, just as it included that part within the definition of "pseudo-photograph". That it to say, Parliament has now also defined a photograph by reference to a process distinct from the taking of a photograph which produced a negative as well as a positive version. There seems no reason why a "pseudo-photograph" should be limited to the operation of creation of that pseudo-photograph by the person charged under section 52(1)(a), since no doubt it can be extracted and drawn down onto a computer from electronic signals on the Internet just as much as a photograph. Like the Court of Appeal in England we find no difficulty with the proposition that the word "make" is apt to cover the activity by which a person using a computer brings into existence the data stored on a computer disk. Such an activity would not be aptly described by the word "take". In the note of appeal the appellant sets out a meaning of the word "make" taken from the New Shorter Oxford Dictionary as "produced by...extraction". That is an apt description of the way in which data stored on disk is produced, namely by use of a computer extracting electronic signals from the Internet and converting them into that data for storage. That activity, just as the taking of an indecent photograph of a child with a camera does, enables child pornography to proliferate and is thus within the mischief which the amendments in the 1994 Act were clearly intended to extend to and to strike at. For that very reason such an activity is to be distinguished from simple possession of such indecent material where the possessor has not himself been responsible for bringing the material into existence. Accordingly there is no substance to the submission of the appellant based upon the difference in the penalties for contravention of section 52(1) and section 52A of the 1982 Act as amended.

[15] In the whole circumstances we have refused the note of appeal and have remitted the case back to the sheriff to proceed as accords.