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ATKINS v. DIRECTOR OF PUBLIC PROSECUTIONS v. GOODLAND v. DIRECTOR OF PUBLIC PROSECUTIONS  EWHC Admin 302 (8th March, 2000)
B e f o r e :
Case No: CO/3417/99
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 8 March 2000
LORD JUSTICE SIMON BROWN
MR JUSTICE BLOFELD
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DIRECTOR OF PUBLIC PROSECUTIONS
DIRECTOR OF PUBLIC PROSECUTIONS
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Miss Helen Malcolm (instructed by Offenbach & Co of London W1V 2BA
Solicitors) appeared for the Appellant, Dr Atkins
Mr Peter Blair (instructed by Nile Arnall of Bristol BS1 5NA Solicitors)
appeared for the Appellant, Mr Goodland
Mr Robert Davies (instructed by The Treasury Solicitor) appeared for the
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As Approved by the Court
Crown Copyright ©
LORD JUSTICE SIMON BROWN: These two appeals by way of case stated raise
a number of interesting and difficult questions as to the proper construction
and application of the Protection of Children Act 1978 (the PCA) and s.160 of
the Criminal Justice Act 1988 (the CJA), provisions concerned with indecent
photographs of children.
Antony Rowan Atkins was convicted by the Avon Metropolitan Stipendiary
Magistrate at Bristol Magistrates Court on 27 May 1999 of 10 offences of having
in his possession indecent photographs of children between specified dates in
October 1997 contrary to s.160(1) of the CJA. On 25 May 1999 the Magistrate
had upheld a submission that Dr Atkins had no case to answer in respect of 21
additional counts of making indecent photographs of children between the same
dates contrary to s.1(1)(a) of the PCA. Dr Atkins appeals against his
conviction on the 10 possession counts; the DPP appeals against Dr Atkins'
acquittal on the 21 "making" counts.
Peter John Goodland was convicted by the Avon Justices at Bristol Magistrates
Court on 21 April 1999 on one count of having in his possession on 5 November
1998 an indecent pseudo-photograph of a child contrary to s.160(1) of the CJA.
He now appeals against that conviction.
Although the two appeals raise entirely different points (both coming by sheer
chance from Bristol Magistrates Court), it has seemed to us convenient to make
them the subject of a single judgment, if only to avoid the need to set out the
legislation twice over.
The Atkins Appeal
The Stipendiary Magistrate is much to be commended for the great care he took
in the conduct of this trial and the preparation of the case stated (which
extends to no fewer than thirty-eight pages). The facts he found can, I
think, fairly and sufficiently be summarised as follows. Dr Atkins was
appointed to a lectureship in the Department of English at Bristol University
on 1 October 1997. He had available to him there both a Viglin Computer set
up in his office and also a departmental computer mostly used by others in the
department's main office. On 16 October 1997 another member of the department
logged into the departmental computer and was immediately concerned by the menu
of internet addresses recently called up. To cut a long story short, a Mrs
Dunderdale, executive assistant, was amongst those consulted and she in turn
called in her husband who for a number of years had run an information
technology centre. Mr Dunderdale checked the computer's cache file and found
there pictures of naked young girls in crude postures. The history of
computer use pointed to Dr Atkins. On 18 October 1997 Mr and Mrs Dunderdale
decided to examine Dr Atkins' Viglin computer. Similar pictures were found in
the Viglin cache and Mr Dunderdale was also able to locate within that computer
a directory (the J Directory) in the Drive which had a number of files of
similarly indecent material. Mr and Mrs Dunderdale made copies of the
material in the two caches and in the J Directory onto floppy discs. Dr
Atkins was shortly afterwards suspended.
The expert evidence before the Magistrate was this:
"The internet is a medium to publish and obtain information using computers.
A browser programme, for example the Netscape browser, can be used to access
the internet. The browser is able to locate servers and in doing so the user
is able to download information, or ´documents'. A user can deliberately
choose to download or save documents, but it is not commonly known by users
that the browser automatically creates a temporary information store, a
´cache', of recently viewed documents. The reason for this is that when
the user revisits the documents the browser may use the locally stored cache,
provided that it is not too old and does not need updating, which saves time in
fetching the documents. ... The cache is automatically emptied of documents
as it becomes full, but even then it is possible to retrieve information
forensically. Expert computer users can access the cache directly. ...
The J Directory does not form part of the cache and must have been created
The position in short is this. The photographs in the J Directory were there
because Dr Atkins had deliberately chosen to store them there. The
photographs found in the caches, however, although voluntarily called up onto
the screen when initially Dr Atkins was brousing the netscape programme, were
deliberately not saved. The Magistrate concluded that he could not be sure
that Dr Atkins knew of the operation of the computer's cache, knew in other
words that the computer would automatically retain upon its hard disc
information sent to it at the user's request.
Paradoxically, as at first blush it appears, the 10 counts of which Dr Atkins
was convicted related to photographs recovered from the caches (9 from his
Viglin computer, one from the departmental computer), photographs he had
deliberately not saved, whereas the eleven further counts relating to
the J Directory photographs, those which he had deliberately saved,
were dismissed. The main reason for this, I should make plain, is that the
prosecution had been out of time to charge Dr Atkins with possession of the J
Directory material and it was only offences of possession of which the
Magistrate ultimately found Dr Atkins guilty.
Put at this stage at its simplest, it is Dr Atkins' argument that he ought not
to have been convicted of possession given that knowledge of the existence of
the caches could not be proved against him; it is the DPP's argument that Dr
Atkins should have been convicted on the "making" counts in relation both to
the J Directory material and also the material in the caches irrespective of
whether he knew of their existence.
I must at this point refer to the main legislative provisions in play. I
shall set them out in their amended form, although it will be necessary to
return later to indicate something of when and how those amendments came
The Protection of Children Act 1978, as amended, provides so far as
"1(1) It is an offence for a person -
(a) to take, or permit to be taken, or to make any indecent photograph or
pseudo-photograph of a child; or
(b) to distribute or show such indecent photographs or pseudo-photographs;
(c) to have in his possession such indecent photographs or pseudo-photographs,
with a view to their being distributed or shown by himself or others; or
(d) to publish or cause to be published any advertisement likely to be
understood as conveying that the advertiser distributes or shows such indecent
photographs or pseudo-photographs, or intends to do so.
(3) Proceedings for an offence under this Act shall not be instituted except by
or with the consent of the Director of Public Prosecutions.
(4) Where a person is charged with an offence under sub-section 1(b) or (c), it
shall be a defence for him to prove -
(a) that he had a legitimate reason for distributing or showing the
photographs or pseudo-photographs or (as the case may be) having them in his
(b) he had not himself seen the photographs or pseudo-photographs and did not
know, nor had any cause to suspect them to be indecent.
2 (3) In proceedings under this Act relating to indecent photographs of
children a person is to be taken as having been a child at any material time if
it appears, from the evidence as a whole, that he was then under the age of
7 (1) The following sub-sections apply for the interpretation of this Act.
(2) References to an indecent photograph include ... a copy of an indecent
(4) References to a photograph include -
(a) the negative as well as the positive version; and
(b) data stored on a computer disc or by other electronic means which is
capable of conversion into a photograph.
(6) "Child" subject to sub-section (8), means a person under the age of 16.
(7) "Pseudo-photograph" means an image, whether made by computer-graphics or
otherwise howsoever, which appears to be a photograph.
(8) If the impression conveyed by a pseudo-photograph is that the person shown
is a child, the pseudo-photograph shall be treated for all purposes of this Act
as showing a child and so shall a pseudo-photograph where the predominant
impression conveyed is that the person shown is a child notwithstanding that
some of the physical characteristics shown are those of an adult.
(9) References to an indecent pseudo-photograph include -
(a) a copy of an indecent pseudo-photograph; and
(b) data stored on a computer disc or by other electronic means which is
capable of converstion into a pseudo-photograph."
S.160 of the Criminal Justice Act 1988, as amended, provides:
"160(1) It is an offence for a person to have any indecent photograph or
pseudo-photograph of a child in his possession.
(2) Where a person is charged with an offence under sub-section (1) above, it
shall be a defence for him to prove -
(a) that he had a legitimate reason for having the photograph or
pseudo-photograph in his possession; or
(b) that he had not himself seen the photograph or pseudo-photograph and did
not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph or pseudo-photograph was sent to him without any prior
request made by him or on his behalf and that he did not keep it for an
(3) A person shall be liable on summary conviction of an offence under this
section to imprisonment to a term not exceeding six months or a fine ...
(4) Ss.1(3), 2(3), 3 and 7 of the Protection of Children Act 1978 shall have
effect as if any reference in them to that Act included a reference to this
I come next to the Magistrate's rulings (a) that there was no case for Dr
Atkins to answer on the "making" charges, and (b) that Dr Atkins was guilty of
possession in respect of the photographs held in the caches. As to "making",
the case stated reads as follows:
"Mr Davies [counsel for the DPP both below and before us] urges upon me two
views in relation to ´making'. Firstly, he says that in relation to
those found in ´J' Directory, they were ´made' by the positive act of
the defendant in choosing to store them in that separate directory. Secondly
he says that, as in his submission these items are clearly ´data stored
within a computer hard disc', and arrived there as a result of the defendant's
choice to access them for perusal from the internet, even those found in the
cache are ´made'. He urges upon me that the 1978 Act creates in
s.1(1)(a) an offence of strict liability - i.e. that ´making' occurs with
or without the knowledge of the maker.
I must say that I can accede to neither of these submissions. Since biblical
times, the Maker has been the Creator, that is he has fashioned something new.
I have read Hansard and the Reports of the Committee Stages and I accept that
Parliament has tried steadfastly to counter a rising tide of child pornography.
It has firstly added the concept of ´making' to prohibited activities,
and has later defined the pseudo-photograph. It has sought to extend the
possible net of manufacturers as wide as is possible. All that has, to an
extent, been achieved. There is no doubt that indecent pictures ´made'
in any creative way are caught. It has not however in my judgment altered the
basic principle of manufacture. ´Made' still means ´created',
´novated', ´fabricated' - all definitions from the Oxford English
Dictionary. It does not mean ´stored', ´isolated', or
´reserved' in whatever form. For those reasons I say now that I find
the concept of ´making' in this case difficult in relation to [the
´making' charges] and I say that there is no case to answer in respect of
The Magistrate's eventual ruling on possession was as follows:
"I have said that I am not sure, upon the evidence, that the defendant knew of
the nature of the operation of the netscape cache. I am urged by the defence
to say that any de facto possession was thus unknowing and that
possession within the meaning of s.160(1) by the defendant is not made out. I
deal with that submission in the alternative. Firstly, it is my view that the
offence created by s.160(1) is an offence of strict liability, the effect of
which is mitigated only by the three statutory defences set out in sub-section
2. If that is right, then once the fact of de facto possession is
established, the existence or not of knowledge of that fact by the defendant is
irrelevant. My view that this is an offence of strict liability is
strengthened by the fact that the lack of knowledge which amounts to the
defence is precisely restricted by sub-section 2(b), namely that the defendant
was not only unaware of the indecent nature of the photograph but had not
himself seen it. Both limbs of that sub-section must be established by the
defendant on the balance of probabilities. He has established neither. The
fact is that the defendant by his own act put himself in the position whereby,
by the press of a button, transient prohibited material could become stored
upon his hard disc. Due to his mistake as to the consequences of his initial
act, the prohibited material did indeed transmute to his hard disc, albeit to a
different part of it. As I have said, if this is an offence of strict
liability, the defendant's mistake is irrelevant. If, however, my view as to
strict liability is incorrect in law, my conclusion of fact that the eventual
possession of this material upon the hard disc of the computer arose as the
direct and sole result of the defendant's initial voluntary act satisfies me
that he is in possession of the material for the purposes of s.160(1)."
The Magistrate then turned to consider a particular defence which Dr Atkins had
raised under s.160(2)(a), namely that he had a legitimate reason for having the
photographs in his possession, the purpose of legitimate academic research.
The Magistrate in the case stated deals with this defence as follows:
"I have read the reports of the committee stage of this Bill, and indeed those
of the Protection of Children Bill in Hansard. I am satisfied that Parliament
intended to take whatever steps were necessary to eliminate such material and
to restrict as far as was possible any lawful possibility of possession.
Those who work to those ends must, as a matter of common sense, have to handle
such material. Specified anti-pornography campaigners or precisely defined
medical researchers were mentioned by the standing committee. I add to those,
in common sense, those within the criminal justice system - magistrates,
judges, jurors, lawyers and forensive psychiatrists whose duties in the
enforcement of the law necessitate the handling of the material in each
particular case. I find however not the slightest evidence of any intention
of Parliament to extend those categories to those with any other agendae,
however cerebral or esoteric. It follows therefore that I find that, even
were I satisfied that there was indeed no other explanation for the possession
of these images save that of an honest and straightforward desire to research
the subject of child pornography, such research does not fulfil the criteria
which could properly be regarded as ´legitimate'."
The case stated indicates, however, that the Magistrate would in any event have
rejected this defence on the facts:
"I am satisfied that at least a very significant purpose of his [Dr Atkins']
viewing these images was for either the satisfaction of his curiosity, or a
more prurient interest, neither of which can amount to ´legitimate
reason'. Were it possible for the defence of legitimate reason to extend
beyond the barrier that I have mentioned to purely sociological research, I
find as a fact that such reason could not justify the possession of the
particular images in this case."
I can now set out the three questions posed in the case stated for the opinion
of the High Court:
"1. In respect of a charge of ´possession' of an indecent photograph of a
child under Section 160(1) of the Criminal Justice Act 1988, was I right
to hold that it is an offence of strict liability, mitigated only by the three
available statutory defences in subsections (2)(a), (b) and (c)?
2. In respect of the defence of ´legitimate reason' under Section
160(2)(a) was I right to hold that the defence is limited to specified
anti-pornographic campaigners, defined medical researchers and those within the
criminal justice system, namely magistrates, judges, jurors, lawyers and
forensic psychiatrists whose duties in the enforcement of the law necessitate
the handling of the material in each particular case, and that the defence is
not capable of including research into child pornography even if ´honest
3. In respect of a charge of ´making' an indecent photograph of a child
under Section 1(1)(a) of the Protection of Children Act 1978 was I right
to hold that it requires some act of manufacture namely: ´creation,
novation or fabrication' and that ´making' does not mean ´stored,
isolated or reserved in whatever form', or copying an image or document whether
knowingly or not."
I shall address these questions in a different order.
As already indicated, however this question falls to be answered, the answer
cannot avail Dr Atkins because the Magistrate found that in any event he was
not conducting "honest and straightforward research into child pornography".
We are nevertheless invited to consider the question so that courts may have
some guidance on the point. The answer seems to me plain. The question of
what constitutes "a legitimate reason" (for the purposes of both s.160(2)(a) of
the CJA and s.1(4)(a) of the PCA) is a pure question of fact (for the
Magistrate or jury) in each case. The central question where the defence is
legitimate research will be whether the defendant is essentially a person of
unhealthy interests in possession of indecent photographs in the pretence of
undertaking research, or by contrast a genuine researcher with no alternative
but to have this sort of unpleasant material in his possession. In other
cases there will be other categories of "legitimate reason" advanced. They
will each have to be considered on their own facts. Courts are plainly
entitled to bring a measure of scepticism to bear upon such an enquiry: they
should not too readily conclude that the defence has been made out.
I should add only that in my judgment it is not appropriate here to consult the
Parliamentary discussions on the point: the conditions specified by the House
of Lords in Pepper v Hart  AC 593 are not satisfied.
In considering this question it is necessary to bear in mind how the
legislation stood before s.1(1)(a) of the PCA and s.160(1) of the CJA
simultaneously came to be amended by s.84 of the Criminal Justice and Public
Order Act 1994.
S.1(1) as originally enacted read:
"1(1) It is an offence for a person (a) to take, or permit to be taken, any
indecent photograph of a child (meaning in this Act a person under the age of
16) ... "
S.160(1) as originally enacted read:
"160(1) It is an offence for a person to have any indecent photograph of a
child (meaning in this section a person under the age of 16) in his
Until 1994, therefore, there was no offence of "making" indecent photographs,
nor was there any reference in the legislation to pseudo-photographs.
Similarly, I may add, until the 1994 amendments, photographs were not defined
to include "data stored on a computer disc or by other electronic means which
is capable of conversion into a photograph", although the Court of Appeal,
Criminal Division held in R v Fellows and Arnold  1 CAR 244 that
the scope of the original definition was wide enough to include such data.
Another amendment introduced in 1994 was that possession contrary to s.160(1),
although remaining a summary offence, became imprisonable (six months maximum)
rather than merely fineable as previously it had been. S.1(1) remained an
either way offence, imprisonable for up to three years.
Miss Malcolm submits on behalf of Dr Atkins that the Magistrate was correct in
ruling that "making" requires an act of creation and is not satisfied either by
copying or storing an image or document, whether knowingly or not. True, she
recognises, "an indecent photograph" is defined by s.7(2) of the CPA to include
"a copy of an indecent photograph", and s.1(1)(a) as amended makes it an
offence "to make any indecent photograph", so that prima facie the
offence would appear to be committed by anyone making a copy of an indecent
photograph. She nevertheless argues that this is not the case; rather, she
submits, the word "make" was introduced into s.1(1)(a) of the PCA solely to
deal with pseudo-photographs - the real problem which Parliament was addressing
in 1994. In other words, the amended s.1(1)(a) should be construed as if it
read: "It is an offence for a person to take, or permit to be taken, any
indecent photograph of a child, or to make any pseudo-photograph of a child."
What paragraph (a) is aimed at is the creation of indecent child pornography,
not its proliferation.
Not the least difficulty with this argument (as, indeed, with the Magistrate's
ruling on the meaning of "making" in this legislation) is that it flies
directly in the face of R v Bowden (unreported, 10 November 1999) where
the Court of Appeal, Criminal Division (Otton LJ, Smith and Collins JJ)
expressly rejected a similar argument and came to the contrary conclusion.
The court in Bowden was concerned with printouts made (a) by the
defendant copying photographs which he had called up onto his computer screen
via the internet, and (b) by the police of photographs (and in one instance a
pseudo-photograph) stored in data files downloaded by the defendant from the
internet and deliberately stored by him on his own computer discs.
Essentially, therefore, the material in Bowden was equivalent to the J
Directory material in the present case.
Having outlined much the same argument as Miss Malcolm advanced before us (save
for one of her main submissions which she suggests was unfortunately not made
there), the court in Bowden said this:
"We are unable to accede to this interesting argument. In our judgment s.1 as
amended is clear and unambiguous in its true construction. Quite simply, it
renders unlawful the making of a photograph or a pseudo-photograph. There is
no definition section. Accordingly the words ´to make' must be given
their natural and ordinary meaning. In this context this is ´to cause
to exist; to produce by action, to bring about' (OED). As a matter of
construction such a meaning applies not only to original photographs but, by
virtue of s.7, also to negatives, copies of photographs and data stored on
We do not accept that s.1 in its present form is either ambiguous or obscure.
We are certainly not persuaded that in some way the draftsman nodded and
produced an ambiguous, obscure or illogical result. Nor do we accept that the
natural interpretation leads to any absurdity suggested by counsel. We
prefer the submission ... of the respondent: ´a person who either
downloads images onto disc or who prints them off is making them. The Act is
not only concerned with the original creation of images, but also their
I may perhaps observe that it was because of the court's decision in
Bowden, so we were told, that Garry Glitter shortly afterwards pleaded
guilty to similar offences.
It is Miss Malcolm's submission, however, that Bowden was wrongly
decided and, moreover, that we (although an inferior court) are entitled to
disregard it on the footing that it was decided per incuriam of a
crucially important submission. That submission is this. S.1(1) of the PCA,
as originally enacted, created a hierarchy of offences in descending order both
geographically and in terms of moral culpability. Paragraph (a) criminalised
the taking of indecent child photographs, or permitting them to be taken, an
activity involving the direct exploitation of children in their actual
presence; paragraph (b) involved the distribution or showing of such
photographs; paragraph (c) the possession of such photographs with a view to
their distribution or showing; and paragraph (d) the advertising of such
distribution or showing. Importantly, by s.1(4) the statutory defences are
made available only to those charged with offences under paragraphs (b) or (c).
There can be no defence whatever to an offence under s.1(1)(a) (or, indeed,
under paragraph (d)) since there could never be any excuse for such
If, in 1994, as the Crown contends, making a copy of an indecent child
photograph became a criminal offence under s.1(1)(a) as amended, then this can
only have been on the basis that Parliament intended not merely to criminalise
this activity for the first time but to make it an absolute offence. That,
submits Miss Malcolm, is highly unlikely. It would, indeed, necessarily
follow - and Mr Davies for the DPP accepts this - that all sorts of innocent
people could fall foul of its provisions. In this very case, for example, Mr
and Mrs Dunderdale committed the offence when making copies of the material
they found in Dr Atkins' computer, and had they been prosecuted they would have
had no defence whatever. True, they could not have been prosecuted save with
the DPP's consent. But the decision whether to grant consent, we are told, is
routinely devolved to grade 5 officials in the CPS so that the safeguard may
not invariably be effective.
For my part I see the force of this argument and would accept that s.1(1)(a)
should be construed as narrowly as it reasonably can be to avoid the unwelcome
consequences to which Miss Malcolm refers. In any event, as Lord Esher, MR
said in Tuck and Sons v Priester (1887) 19 QBD 629 at 638:
"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 lenient one. That is the settled rule for
the construction of penal sections."
But that said, I am wholly unpersuaded that we should regard Bowden as
wrongly decided, let alone as decided in the strict sense per incuriam.
In the first place, there remains the apparently unambiguous language of the
subsection. Secondly, it may be that this further argument was in any event
addressed to the court in Bowden: there is, after all, a reference in
the judgment, albeit unparticularised, to the "absurdity suggested by counsel".
Thirdly, the per incuriam exception to the principle of stare
decisis is a notably narrow one. As Lord Evershed MR said in Morrelle
Limited v Wakeling  2QB 389 at 406:
"As a general rule the only cases in which decisions should be held to have
been given per incuriam are those of decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of some authority
binding on the court concerned, so that in such cases some feature of the
decision or some step in the reasoning on which it is based is found on that
account to be demonstrably wrong. This definition is not necessarily
exhaustive, but cases not strictly within it which can properly be held to have
been decided per incuriam, must in our judgment, consistently with the
stare decisis rule which is an essential part of our law, be of the
It follows that in my judgment we are bound by Bowden and the Magistrate
here ought properly to have convicted Dr Atkins of "making", at least in
respect of the eleven J Directory counts.
But what of the other ten counts of "making", those relating to the material
unknowingly stored in, and recoverable from, the caches? Bowden, it is
clear, says nothing as to these: it was simply not concerned with data
inadvertently stored on a computer disc. Mr Davies, however, argues that this
material too is caught by s.1(1)(a). The plain fact is, he says, that Dr
Atkins caused these indecent photographs to be stored in the cache of the hard
disc whether he knew it or not. Anyone who accesses child porn on their
computer screen necessarily there and then commits two offences: he is both in
possession of the image and whether knowingly or not, copying it onto the
I would unhesitatingly reject this argument. For the reasons already given,
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.
As already indicated in respect of the J Directory material Dr Atkins could
and, but for the delay, would have been prosecuted for possession under s.160.
Nevertheless, as stated in my judgment he was also properly prosecuted for,
and should have been convicted of, "making" in respect of those particular
So far as the cache material is concerned, it was also common ground before us
that Dr Atkins would have had no defence to charges of possession had the
prosecution case been put simply on the basis of the transient downloading of
the image onto the screen rather than on the basis of its subsequent
inadvertent storage in the cache. As Mr Davies made plain in argument,
however, ordinarily it might be difficult to establish when the initial
transient viewing occurred and a prosecution on that basis might well be out of
time. True, that was not the situation here, but, he says, the DPP is
anxious to establish a precedent with regard to material stored in the cache
and it is his case that the user is in continuous possession of this material
from the moment of downloading it.
The central question, therefore, arising in this part of the case is whether or
not knowledge of the existence and effect of the cache is an essential
ingredient of the offence of possession under s.160. Miss Malcolm submits
that it is and that the possession counts against Dr Atkins should accordingly
have been dismissed. Mr Davies argues that knowledge is immaterial and
therefore that the Magistrate was correct to rule that this is "an offence of
Before addressing counsel's main arguments, I should make just two brief
comments on the Magistrate's ruling quoted above. First, I cannot accept
that the relevance or otherwise of the defendant's knowledge is to be dictated
("precisely restricted") by s.160(2)(b)): that defence goes only to the
defendant's knowledge of the indecent nature of photographs in his possesion,
not to the question whether he is in possession of photographs of any sort.
Secondly, the difficulty with the Magistrate's alternative basis of ruling is
that it appears to be founded on the transient viewing on the screen when the
image was first downloaded - the very basis of prosecution which the Crown here
In my judgment, therefore, the relevance of knowledge of possession falls to be
decided in accordance with general principle and in this regard Mr Davies
invites our attention to three authorities in particular - R v Hussain
 Cr.App.R.143, R v Steele  Crim.L.R. 298, and R v
Buswell  1 AllER 75. Hussain and Steele both
concerned the possession of firearms without a certificate which the court
decided was an absolute offence - in the sense that Hussain was guilty
because he knew he had the relevant article even though he did not know it was
a firearm, and Steele was guilty because he knew he had a holdall with
contents even though he did not know what those contents were.
Buswell was a very different case and concerned the 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 his jeans. Thereafter he
discovered them still in his bedroom drawer where later still they were found
by the police. Allowing his appeal against conviction the Court of Appeal
"(2) Where a person who was in lawful possession of drugs forgot their
existence, or mistakenly thought that they had been disposed of or destroyed,
although in fact they remained in his custody, he did not thereby cease to be
in possession of them; it followed that the continued possession remained
lawful; accordingly the tablets were in the appellant's possession by virtue
of the doctor's prescription."
In my judgment none of those authorities make good the DPP's argument. On the
contrary, I accept Miss Malcolm's submission that the firearms cases are
readily distinguishable on the footing that the holdall in Steele is to
be equated to the cache here and Dr Atkins was not proved to know even that he
had the cache. Buswell too is to my mind distinguishable: nothing in
the present case equated to Buswell's undoubted initial storage of the
tablets in his drawer. Buswell might well have been in point had Dr
Atkins sought (and unknowingly failed) to cancel the material stored in the J
Directory and then been prosecuted for possession of it. That, however, is
not the present case.
Once again, therefore, I prefer Miss Malcolm's argument that knowledge is an
essential element in the offence of possession under s.160 so that an accused
cannot be convicted where, as here, he cannot be shown to be aware of the
existence of a cache of photographs in the first place.
Returning to s.160(2)(b), it seems to me indeed that the very fact that
Parliament created a defence for those possessing photographs reasonably not
known to be indecent, strongly suggests that there was no intention to
criminalise unknowing possession of photographs in the first place.
I would therefore answer the three questions raised in the Atkins' appeal as
(1) No: the offence of possession under s.160 is not committed unless the
defendant knows he has photographs in his possession (or knows he once had them
(2) No: it is a question of fact in each case whether honest research into
child pornography constitutes a ´legitimate reason' for possession (or
(3) No: "making" includes copying photographs providing that it is done
In the result both parties succeed in their appeals.
Miss Malcolm invited us to exercise our discretion not to remit the case to the
Magistrate for conviction on the eleven counts of "making" in respect of the J
Directory material bearing in mind the lapse of time since the offence was
committed and the fact that but for the initial delay the prosecution would
have been for possession rather than "making". For my part I would decline
the invitation.: I really think this case calls for a conviction.
The Goodland Appeal
The sole issue before the Justices was whether a particular item (which I shall
shortly describe and which for convenience I shall call the exhibit) is a
pseudo-photograph within the meaning of s.7(7) of the PCA. The case was
decided by the Justices on the basis of the following admitted facts:
"(a) on 5 November 1998 police officers attended ... the home address of the
defendant and seized [the exhibit] from a secure and locked cabinet at that
(b) prior to [that] seizure the exhibit was in possession of the defendant with
his full knowledge ... It had been made by him by sellotaping two separate
pieces of paper together, which are individually photographs.
(c) the defendant had no legitimate reason for having the item in his
It was further undisputed that the person pictured in the exhibit was a child
and that the exhibit is indecent.
Before turning to the argument it is, I think, necessary to explain rather more
clearly just what the exhibit consists of. The main photograph is of a girl
aged perhaps 10 in a gymnastic outfit standing with her arms upstretched facing
the camera. The second photograph (a small piece plainly cut from a larger
photograph) is of the naked abdomen, genital area and upper thighs of a girl or
young woman. A corner of the second photograph has been affixed to the main
photograph by sellotape so that, as if on a hinge, it can either be turned away
from the clothed girl or superimposed over the lower section of the girl's
The case for the prosecution below is summarised in the case stated as
"The item was a photograph. It is made up of two separate items and was two
photographs put together. The act of putting them together did not destroy
the fact that it was a photograph. ... The question was ´does the
sellotaping of two photographs destroy the fact that it was a photograph'"
The case for the defence was that:
"The item made up of two photographs sellotaped together did not appear to be
a photograph. On a common-sense interpretation, the item could not be an
item. It is a collage, two pictures stuck together. ... As a matter of
law the item does not appear to be a photograph and is not a photograph. If
it was photocopied or photographed it may have been an image."
The Justices' central conclusion was as follows:
"The [exhibit] made up of two photographs sellotaped together appears to be a
photograph. We accepted the respondent's contention that two photographs
sellotaped together does not destroy the fact that it is a photograph. Both
parts of the photograph are in proportion. The image is not distorted. We
did not accept the defence contention that two photographs sellotaped together
is a collage, not a photograph. It does not matter how it is produced because
of the words ´or otherwise howsoever'."
The single question posed for the High Court's opinion is whether in coming to
that conclusion the Justices were wrong in law.
In seeking to uphold this conviction Mr Davies makes two main submissions.
First he argues that the phrase "which appears to be a photograph" in s.7(7) is
a qualitative requirement, not a numerical requirement. The exhibit must
appear to be a product of photography rather than, for example, a cartoon,
sketch, painting or other indecent representation of a child. Secondly he
contends that the exhibit is a single image which appears to be photographic in
nature, given that it is created by combining two photographic sources into one
Mr Blair for the appellant submits that these arguments, although ingenious,
are fundamentally flawed as a method of statutory interpretation. The
question is not whether the exhibit is "a product of photography" or
"photographic in nature". Rather it is whether the exhibit is "an image ...
which appears to be a photograph".
In my judgment Mr Blair's argument is clearly correct. The Justices' own
conclusion that "two photographs sellotaped together appears to be a
photograph" seems to me self-contradictory.
I recognise, of course, that were the exhibit itself to be photocopied the
result could well be said to constitute a pseudo-photograph. (The mere fact
that in this particular case it would plainly appear not to be a genuine
photograph - there being several features of this combination of images which
give the lie to that - would not be inconsistent with such a conclusion - see
particularly s.7(8).) That, however, cannot decide this appeal. In my
judgment an image made by an exhibit which obviously consists, as this one
does, of parts of two different photographs sellotaped together cannot be said
to appear to be "a photograph". I would accordingly answer the question posed
in the case stated: Yes, the Justices were wrong in law.
Mr Goodland's appeal accordingly succeeds.
I add this footnote. The exhibit in the Goodland appeal is pitifully crude
in both senses. It is hardly surprising that the penalty imposed was only a
two year conditional discharge with an order to pay £50 costs. The
sting, however, lies in the requirement to register with the police under the
Sexual Offenders Act 1997 for a period of five years. I seriously question
whether a prosecution with that result is appropriate in a case of this
character. It seems to me that the DPP may wish to instruct those exercising
his devolved discretion in future to be rather more fastidious in giving their
consent to prosecutions.
MR JUSTICE BLOFELD:
Wednesday 8th March 2000
LORD JUSTICE SIMON BROWN: Mr Justice Blofeld is unfortunately unable to
be here. That was known in advance. Yes, Mr Davies.
MR DAVIES: May I make an apology first of all. I was not able to read
this judgment until yesterday afternoon. May I point out one more possible
LORD JUSTICE SIMON BROWN: Shall I indicate first what the judgment is,
before I come to correct it?
For the reasons given in the judgments which have already been handed
down, in the first appeal, that of Atkins, both parties succeed and the matter
falls to be remitted to the magistrate to be dealt with in accordance with the
judgment. In the second appeal, that of Goodland, the appeal succeeds and
accordingly the conviction falls to be quashed.
Mr Davies, at this stage, by all means tell me what needs to be done.
MR DAVIES: My Lord, two corrections, one important, one less so. Page
22, line 8 into 9: "On a common-sense interpretation, the item could not be an
item" should read "the item could not be a photograph".
LORD JUSTICE SIMON BROWN: You are quite right.
Shorthandwriter, have you got that?
MR DAVIES: Less importantly, page 14 line 3, "Garry Glitter"; there is
one R in Gary.
LORD JUSTICE SIMON BROWN: Oh dear. As if I did not know. Thank you
very much. Yes, Miss Malcolm.
MISS MALCOLM: In relation to Mr Atkins, may I make two applications.
The first is an application for his costs out of central funds under section
16(5) of the Prosecution of Offences Act 1985. He was legally aided in the
lower court, but under the different rules that apply in the Divisional Court
he was not granted legal aid and therefore had to pay for the appeal itself.
Given that he succeeded on the appeal. . .
LORD JUSTICE SIMON BROWN: He succeeded on the appeal, but he failed on
what you might call the cross-appeal. MISS MALCOLM: Yes, he did. He failed on
that matter under which this court was bound, but he succeeded on the ten
counts of which he had been convicted. It will not affect at this stage the
costs order imposed by the magistrates' court, which has already been paid. It
will simply deal with the costs incurred by him in bringing the appeal to this
court by case stated.
LORD JUSTICE SIMON BROWN: But what would happen, assuming that an
application for costs were made. . . We have already been told, I recall -
indeed, I noted - that no order is being sought against him by the DPP for
MISS MALCOLM: No.
LORD JUSTICE SIMON BROWN: Mr Davies, do you have any submissions as to
whether he should have his costs out of central funds?
MR DAVIES: No, I do not, my Lord. The fact is, if I am entirely
objective, that he has succeeded on his part of the appeal. We have succeeded
on ours, and we do not apply for costs against him in relation to that.
LORD JUSTICE SIMON BROWN: Very well. He has, no doubt, played his part
in clarifying this problematic area of the law. Very well, Miss Malcolm, costs
out of central funds on his appeal.
MISS MALCOLM: The other matter is a matter that was alluded to on the
last hearing, the question of certification of a point. Mr Davies and I, by
agreement, sent you a fax. We have a copy if it is not immediately to hand.
LORD JUSTICE SIMON BROWN: We have. I discussed all this with Mr
Justice Blofeld. We did not greatly like your proposed question.
MISS MALCOLM: In fact Mr Davies and I had second thoughts about it,
because it implies that Bowden decided----
LORD JUSTICE SIMON BROWN: Quite so.
MISS MALCOLM: ---unknowingly, which he did not.
LORD JUSTICE SIMON BROWN: We decided to certify a question in these
terms. Obviously we are prepared to hear any submissions upon it, but it goes
thus: "Whether the offence of making an" - what is the language of this?
"Indecent", is it not?
MISS MALCOLM: Yes.
LORD JUSTICE SIMON BROWN: "Making an indecent photograph or pseudo
photograph is committed by a person if he/she (a) knowingly or (b) unknowingly
copies an indecent photograph or pseudo photograph of a child." We had better
put "of a child" in earlier. So it would read: "Whether the offence of making
an indecent photograph or pseudo photograph of a child is committed by a person
if he/she (a) knowingly or (b) unknowingly copies an indecent photograph or
pseudo photograph of a child." How is that?
MISS MALCOLM: My Lord, I would have no difficulties with that. The
way that Mr Davies and I had been discussing it was with reference to
LORD JUSTICE SIMON BROWN: I do not think we want to certify it as a
question by express reference to Bowden. Obviously if you do petition
their Lordships' house you will make reference to Bowden.
MISS MALCOLM: The question encompasses both the appeal and
cross-appeal, and I am content with that.
LORD JUSTICE SIMON BROWN: We certify those terms, but obviously we do
not give leave.
MR DAKKOOH: Your Lordship, on behalf of the appellant, Mr Goodland,
there is only one application in that respect, for leave that costs be awarded
out of central funds to cover proceedings both in this court and in the court
LORD JUSTICE SIMON BROWN: We can do that, can we, in respect of the
court below, out of central funds? If we can do it, we do it.
MR DAKKOOH: I am grateful, my Lord.
LORD JUSTICE SIMON BROWN: That is all that you seek in that. No order
is sought by you, Mr Davies, by the Crown in that?
MR DAVIES: No.
LORD JUSTICE SIMON BROWN: Thank you all.
© 2000 Crown Copyright
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