For possession of an indecent image of a child to be proved, it was necessary to establish some knowledge of its existence. Images stored without the defendant’s knowledge by browser software in a hidden cache, of which he was also unaware, were not such, and a conviction was quashed. The situation was akin to a person having a hold-all in which, unknown to him, was a gun. Knowledge of the bag was enough, but ignorance of the bag itself made it no crime. An image formed by sellotaping two parts of other images together was not a pseudo-photograph. The court was bound by Bowden: ‘it seems to me problematic enough to construe s.1(1)(a) (an offence to which no defence whatever is available) as encompassing the intentional making of copies. To construe it as creating an absolute offence in the sense contended for by the DPP, i.e. to encompass also the unintentional making of copies, in my judgment would go altogether too far. It would, moreover, as Miss Malcolm points out, represent a striking oddity in our criminal law: a situation where the self-same set of facts involves the commission of two quite distinct offences, possession under s.160 and ‘making’ under s.1(1)(a), no additional ingredient being required for proof of the more serious offence. In short, it is my conclusion that whilst ‘making’ includes intentional copying (Bowden), it does not include unintentional copying.’
Judges:
Lord Justice Simon Brown and Mr Justice Blofeld
Citations:
Times 16-Mar-2000, Gazette 30-Mar-2000, [2000] 1 WLR 1427, [2000] EWHC Admin 302, [2002] 2 Cr App R 248
Links:
Statutes:
Criminal Justice and Public Order Act 1994, Protection of Children Act 1978 7(7), Criminal Justice Act 1988 160
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Fellows, Arnold CACD 27-Sep-1996
Computer based digital images are ‘copies of a photograph’ sufficient for the Act, and so possession of digital entities capable of being transformed into images were such photographs. Making a file available for download, was sufficient to amount . .
Cited – Tuck and Sons v Priester 1887
A person should not be penalised except under a clear law: ‘If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more . .
Cited – Regina v Bowden CACD 10-Nov-1999
The defendant downloaded indecent images of children onto his computer, and printed them out. He was convicted of making new images by virtue of creating copies on his disc by downloading, by displaying them on his screen, and by printing them out. . .
Cited – Morelle Ltd v Wakeling CA 1955
The plaintiff asserted ownership of leasehold land. A similar situation had arisen in an earlier case befoe the Court of appeal, and the court was asked to decide that that case had been decided per incuriam.
Held: The per incuriam principle . .
Cited – Regina v Hussain 1972
H was charged with the possession of firearms without a certificate.
Held: This was an absolute offence. Hussain was guilty because he knew he had the relevant article even though he did not know it was a firearm. . .
Cited – Buswell, Regina v CACD 1972
The defendant was accused of possession of drugs. The drugs in question had been medically prescribed by the defendant’s doctor. After he had taken them home he genuinely thought that they had been accidentally destroyed by his mother when washing . .
Cited – Regina v Steele 1993
The defendant appealed his conviction for possession of a firearm without a certificate.
Held: The offence was absolute. The defendant was guilty because he knew he had a holdall with contents even though he did not know what those contents . .
Cited by:
Cited – Regina v Smith, Regina v Jayson CACD 7-Mar-2002
The defendants were convicted of making indecent quasi-photographs of children under the Act. They had received e-mails, and opened the images in attachments to those e-mails. They appealed saying that the opening of the attachment was not . .
Cited – Regina v Collier CACD 11-Jun-2004
The defendant appealed a conviction of possession of indecent pseudo-photographs of children. He said that he had not seen the image, and that though he had reason to know the images were indecent, he had no reason to know that they were of . .
Cited – Porter, Regina v CACD 16-Mar-2006
The defendant appealed his conviction of possession of indecent photographs or pseudo-photographs of children. The images had been deleted, and were irrecoverable, but they had originally been viewed through a program which created a smaller . .
Cited – Clifford v The Chief Constable of The Hertfordshire Constabulary QBD 1-Apr-2011
The claimant alleged malicious prosecution and misfeasance in public office bought by the claimant who was charged with child pornography offences in July 2004. The prosecution had eventually offered no evidence. He said that it should have been . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 17 May 2022; Ref: scu.77936
