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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Perrin, R v  EWCA Crim 747 (22nd March, 2002)
Cite as:  EWCA Crim 747
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COURT OF APPEAL (CRIMINAL DIVISION)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE POTTER
MR JUSTICE HARRISON
|- and -|
|Stephane Laurent Perrin|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr G Patterson for the Prosecution
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Kennedy:
“It is agreed and accepted by the defendant that he was legally responsible for the publication of the articles referred to in counts 1, 2 and 3 on the indictment.”
Stephane Laurent Perrin, on the 25th day of October 1999 published an obscene article namely the web page on the internet at HTTP:/WWW. MetropoleNewsGroup.com/Preview.HTML.
“an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
The judge directed the jury faithfully in accordance with the statute by saying at 7E of the transcript -
“The law says an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) – and here of course you have different images haven’t you – the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
The judge then went on to say –
“All relevant circumstances, members of the jury, since we are talking about modern times, includes the sort of people who these days who have personal computers and who have modems and who have access to surf the internet. I suppose ten years ago it would have been very few people, wouldn’t it, but now, it is a matter for you, you may think there are many people of all ages who sit possibly in their bedrooms at home surfing the internet. Therefore, it is a question for you to decide, having regard for all the relevant circumstances, who might read, see or hear of course does not apply, really does it, the matter contained or embodied in this material which you are considering.”
A little later the judge said –
“The definition of obscenity, members of the jury, contains no requirement as to the number of persons which the articles might corrupt or deprave, but if the seller of pornographic material has a large number of customers who are not likely to be corrupted by such material, he does not thereby acquire a licence to expose for sale, or sell such material to a small number of customers who are likely to be corrupted by them.”
And again a little later, at 15B the judge said –
“This case you are trying is said to involve internet pornography and the case is that this defendant published these three web pages which are referred to in the indictment at counts 1 to 3. He does not deny that he published them, members of the jury, because of course you have got that formal admission, that he was responsible for them. The question for you to decide is whether the material is obscene in accordance with the quite elaborate definition that I have given you.”
“Mention of obscenity 1969. Number of persons or proportion of readers likely to be affected. Need clarification on significance of number.”
The judge discussed the question with counsel, and then said to the jury –
“Members of the jury, doing the best I can, the case that I referred to in 1969, the Court of Appeal stated that the jury should in that case, in 1969 or sometime before 1969 because it came to the Court of Appeal in 1969, should have been directed to consider whether the effect of the book in that case was to tend to deprave or corrupt a significant number of those persons likely to read it. However, in another case that came before the House of Lords in 1972, so three years later, but still some decades ago, .. one of their lordships observed that although such direction would have been suitable on the facts of the case, in other words that case, the phrase ‘significant proportion’ cannot be safely transplanted into cases of a different character. So whether it applies in this case, members of the jury, bearing in mind the different character of this case, may be a matter for you to determine. Of course, we are dealing with matters in 1999; we are dealing with the internet, aren’t we, and computer porn as opposed to photographs or magazines, material of that nature. I have already directed you, members of the jury, that with regard to count 1 different considerations may apply, it is a matter for you to decide. With regard to count 1 that was preview material that didn’t have to be paid for by becoming a member. So until the stage when you have to pay with your credit card and become a member, everything that PC Ysart saw was freely accessible to any one who wanted to look or had access to look without any passwords or other means of restricting access.”
The judge then turned to the statutory definition of obscenity and said that it –
“Refers to persons which means some persons though it was said by his lordship in that case, I think in a suitable case, if the number of persons likely to be affected is so small as to be negligible, really negligible, the de minimis principle may be applied. In other words, taking out the latin, if only negligible numbers were involved then it would not be covered by the test of obscenity, there have to be numbers of some significance.
But, I go on to what was said in that case, -
If the seller of pornographic books (or material in this case) has a large number of customers who are not likely to be corrupted by such material he does not thereby acquire a licence to expose for sale or sell such material to a small number of customers who are likely to be corrupted by it.
Because as I said before, in that House of Lords case, it was held that the Obscene Publications Act was not merely concerned with the once and for all corruption of the wholly innocent, it equally protected the less innocent from further corruption and the addict from feeding or increasing his addiction.”
The jury was then sent out to continue their deliberations. In due course, as we have said, they returned verdicts of not guilty in relation to counts 2 and 3, and convicted on count 1.
Ground 3: Relevant Publication
“(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or
(b) in the case of an article containing or embodying matter to be looked at ... where the matter is data stored electronically, transmits that data. ”
The words in italics were added by the Criminal Justice and Public Order Act 1994 section 168(1) and Schedule 9 Paragraph 3.
“The forms of publication included in the definition in section 1(3)(a) fall into three distinct groups: in one group, comprising the words ‘sells, lets on hire, gives, or lends’ publication is to an individual; in the second group, comprising the words ‘distributes, circulates,’ publication is on a wider scale, involving more than one person; in the third group a mere offer for sale or letting on hire constitutes publication.”
Applying that approach to paragraph (b), a mere transmission of data constitutes publication, and it is clear from the decision of this court in Waddon 6th April 2000 unreported, that there is publication for the purposes of section 1(3) both when images are uploaded and when they are downloaded.
“In a case falling within the first group the first issue for the jury (assuming that publication is admitted) is whether the effect of the article is such as to tend to deprave and corrupt the individual to whom it is published. The second issue is whether any other person or persons were likely to see the article. In this connection the issue is not whether republication has or has not taken place, but whether it could reasonably have been expected. If the answer to the second issue is ‘yes’, a third issue will arise, namely, whether the article is such as to tend to deprave and corrupt the person or persons to whom republication could reasonably have been expected.”
The first issue had particular relevance to a case where the publication relied upon was in group one. It would for example have no particular relevance to a publication in the third group, or to a publication within the section 1(3)(b) of the type with which we are concerned, but the second and third issues suitably reformulated would remain relevant. The Court would still have to consider –
(1) whether any person or persons were likely to see the article, and if so –
(2) whether the effect of the article, taken as a whole, was such as to tend to deprave and corrupt the person or persons who were likely having regard to all relevant circumstances, to see the matter contained or embodied in it.
“This Court cannot accept the contention that a photograph may be inherently so obscene that even an experienced or scientific viewer must be susceptible to some corruption from its influence. The degree of inherent obscenity is, of course, very relevant, but it must be related to the susceptibility of the viewer. Further, whilst it is no doubt theoretically possible that the jury could take the view that even a most experienced officer, despite his protestations, was susceptible to the influence of the article yet, bearing in mind the onus and degree of proof in a criminal case, it would we think be unsafe and therefore wrong to leave that question to the jury.”
Ground 4: The jury question.
“The only possible criticism that can be validly made of this part of the summing up is that the learned judge gave no guidance to the jury on the difficult question as to what section 1 meant by ‘persons’ who are likely to read that book. Clearly this cannot be all persons; nor can it mean any one person, for there are individuals who may be corrupted by almost anything. On the other hand, it is difficult to construe ‘persons’ as meaning the majority of persons or the average reader, for such a construction would place great difficulties in the way of making any sense of section 4. The Legislature can hardly have contemplated that a book which tended to corrupt and deprave the average reader or majority of those likely to read it could be justified as being for the public good on any ground. This Court is of the opinion that the jury should have been directed to consider whether the effect of the book was to deprave and corrupt a significant proportion of those persons likely to read it. What is a significant proportion is a matter entirely for the jury to decide. It has been persuasively argued by (counsel) that in the absence of such a direction the jury may have thought that they were bound to hold the book obscene if they came to the conclusion that it tended to corrupt and deprave perhaps only four or five of the thirteen thousand persons who bought it. On the other hand, the jury may have thought that they could convict only if the book tended to deprave and corrupt the average reader or the majority of its readers. This court does not consider that the absence of any direction upon the number of persons who might be corrupted and depraved could, by itself, vitiate the conviction.”
Section 4 of the Act is the section which enables the defendant to argue that publication of the article is justified as being for the public good. It is not a section with which we are concerned in the present case.
“The Act is not merely concerned with the once for all corruption for the wholly innocent; it equally protects the less innocent from further corruption, the addict from feeding or increasing his addiction. To say this is not to negate the principle of relative ‘obscenity’: certainly the tendency to deprave and corrupt is not to be estimated in relation to some assumed standard of purity of some reasonable average man. It is the likely reader. And to apply different tests to teenagers, members of men’s clubs or men in various occupations or localities would be a matter of common sense.”
The last two sentences are particularly relevant in the context of this case where the prosecution contends that likely viewers of preview material did include the young with access to the internet.
“That would indeed have been a suitable direction in that case because, on a favourable view, the book could have been regarded as tragic and pathetic rather than pornographic and, if the readers of the book likely to be corrupted by it were only a ‘minute lunatic fringe’ rather than a significant proportion, the book could not fairly be regarded as obscene. The ‘minute lunatic fringe’ would be negligible. But I do not think the phrase ‘significant proportion’ can safely be transplanted to cases of a different character. There is the danger, for instance, of leading a book seller to believe that, so long as he sells a comparatively large number of copies of a pornographic book to persons not likely to be corrupted by it, he can with impunity sell a comparively small number of copies to persons who are likely to be corrupted by it. In such a case, if the comparatively small number of copies is not so small as to be negligible, the statutory definition should be applied according to its terms: the book’s effect, taken as a whole is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read it. ‘Persons’ means some persons. Cockburn CJ in R v Hicklin LR 3 QB 360 did not suggest any requirement as to the number of persons, or as to the proportion of its readers, which a book might tend to deprave and corrupt.”
At 866F Lord Pearson returned to the point saying –
“The statutory definition has been set out above. It refers to ‘persons’, which means some persons, though I think in a suitable case, if the number of persons likely to be affected is so small as to be negligible – really negligible, the de minimis principle might be applied. But if a seller of pornographic books has a large number of customers who are not likely to be corrupted by such books, he does not thereby acquire a licence to expose for sale or sell such books to a small number of customers who are likely to be corrupted by them.”
Our attention was also invited to passages from other speeches, but for present purposes we do not set out those passages here.
“In proceedings brought against a person under (section 2 of the 1959 Act) for having an obscene article for publication for gain the following provisions shall apply in place of subsections (5) and (6) of that section, that is to say –
(b) the question whether the article is obscene shall be determined by reference to such publication for gain of the article as in the circumstances it may reasonably be inferred he had in contemplation and to any further publication that could reasonably be expected to follow from it, but not to any other publication.”
At 467C the judge continued –
“In our view it would be better for a judge faced with the problems posed by the 1959 and 1964 Acts to follow the order of the statutory provisions ... without attempting to improve or re-define the wording of the Acts, as the Court in Calder and Boyars Ltd advised, save for some reference to the fact that the persons likely to be corrupted should amount to more than a negligible number.”
Ground 1: Article 10: Appellant’s case
A. General Submissions.
“... since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society .... for the prevention of disorder or crime, for the protection of health or morals.”
In his first ground of appeal the appellant contends that there was no evidence to rebut his statements in interview that the major steps involved in publishing the web page that resulted in his conviction were in a jurisdiction where the material published was lawful. He relies on “the lack of precision in the statutory definition of obscenity”.
“The following are two of the requirements that flow from the expression ‘prescribed by law’. Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.”
Mr Fulford submitted that because of the worldwide nature of the internet it is difficult for the publishers to comply with the statutory requirements of individual states, and if they are obliged to do so the most restrictive laws will prevail.
“restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.”
But Article 46 enables the provision of services to be restricted stating that –
“The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment of foreign nationals on grounds of public policy, public security or public health.”
As Mr Fulford accepts, limitation on access to pornography can be justified on grounds of public policy, and we are unable to discern anything which the provisions of the Treaty add to the submissions made in relation to Article 10 of the Convention.
“Prohibitions on general categories of material detrimental to human dignity, such as material that is obscene, contrary to sound morals or indecent, exist in most Member States. Sometimes the terms are defined by the legislation; elsewhere, their meaning falls to be determined by the courts. And the same concept may be used to underpin both a blanket prohibition and a more flexible solution in which material is restricted depending on the potential audience or on the medium used.”
Some types of material (i.e. child pornography) are regarded by the paper as unacceptable anywhere, but as to the other types of material the Commission reported that –
“The differences between national rules and their lack of transparency makes it more difficult to apply existing national rules to international services and networks and involve the industries in questions at European level. Moreover, they can generate disproportionate barriers to the free movement of services in the Community and make it harder to defend shared values in international fora.”
B. Prescribed by law.
“The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague ..... criminal law provisions on obscenity fall within this category.”
The Court went on to point out that there were a number of decisions which were accessible and which supplemented the letter of the Code. That, Mr Fulford submits, cannot be said of jury decisions which are not accompanied by reasons. The recent decision of Hooper J in R v Video Appeals Committee of British Board of Films Classification Times 7th June 2000 shows, it is submitted, the problems which can arise with different views of what constitutes obscenity. Mr Fulford accepts that the problem will not arise in every case. In Wingrove v UK  24 EHRR 1 the European Court recognised at paragraph 44 of the judgment that “the offence of blasphemy cannot by its very nature lend itself to precise legal definition” but in paragraph 43 the Court went on to say –
“There appears to be no general uncertainty or disagreement between those appearing before the Court as to the definition in English law of the offence of blasphemy ... having seen for itself the content of the video work, the Court is satisfied that the applicant could reasonably have foreseen with appropriate legal advice that the film, particularly those scenes involving the crucified figure of Christ, could fall within the scope of the offence of blasphemy.”
C. Necessary in a Democratic Society
Ground 2: Article 7
Article 10: Respondent’s case
“By reason their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as the ‘necessity’ of a ‘restriction’ or ‘ penalty’ intended to meet them.”
Consequently, it was said, Article 10:2 leaves to the Contract State a margin of appreciation –
“This margin is given both to the domestic legislator (‘prescribed by law’) and to the bodies, judicial amongst others, that are called upon to interpret and apply the law in force.”
The fact that some European States were more tolerant of the Little Red School Book than others was not found to be persuasive. In paragraph 57 the Court said –
“The Contracting States have each fashioned their approach in the light of the situation obtaining in their respective territories; they have had regard, inter alia, to the different views prevailing there about the demands of the protection of morals in a democratic society. The fact that most of them decided to allow the work to be distributed does not mean that the contrary decision of the Inner London Quarter Sessions was a breach of Article 10.”
In Muller the approach was precisely the same, the Court saying at paragraph 35 of its judgment –
“The view taken of the requirments of morals varies from time to time and from place to place, especially in our era, characterised as it is by a far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than an international judge to give an opinion on the exact content of these requirements as well on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.”
In Wingrove the same point was made by the Court at paragraph 53 when it said –
“In examining whether restrictions to the rights and freedoms guaranteed by the Convention can be considered ‘necessary in a democratic society’ the Court has, however, consistently held that the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the European Court to give a final ruling on the restriction’s compatibility with the Convention and it will do so by assessing in the circumstances of a particular case, inter alia, whether the interference corresponded to a ‘pressing social need’ and whether it was ‘proportionate to the legitimate aim pursued’”.
Finally, in Hoare the Commission pointed out that it could not be said “with any degree of certainty that only the intended purchasers of the film would have access to it and not minors”. The Commission noted the absence of any claim to artistic merit, and concluded that –
“Where obscene video cassettes were distributed to a limited circle of viewers but where there was no further control over them, where the official channels of certification of videos were not used, and where no artistic merit is claimed for the works, the applicant’s conviction for publishing obscene works was proportionate to the legitimate aim pursued.”
“The statutory scheme contained in the 1995 Act is one approved by a democratically elected Parliament and should not be at all readily rejected. I would for my part endorse the conclusion of the Court of Appeal Criminal Division in paragraph 88 of its judgment in R v Benjafield:
‘It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public, that those who have offended should not profit from their offending and should not use their criminal conduct to fund further offending. However, in our judgment, if the discretions which are given to the prosecution and to the courts are properly exercised, the solution which Parliament has adopted is a reasonable and proportionate response to a essential public interest, and therefore justifiable.’”
That, Mr Patterson submits, is the approach we should adopt in this case. No one has argued that the protection of minors and other vulnerable people is not an important issue to be addressed. On the other side of the balance sheet, apart from the general right to freedom of expression, there is no public interest to be served by permitting a business for profit to supply material which most people would regard as pornographic or obscene, using that word in its non-statutory sense. Yet, as Mr Patterson points out, the infringement of the appellant’s freedom is limited, as can be seen by reference to the verdict of the jury on counts 2 and 3, and, although the protection to vulnerable people which is afforded by the 1959 Act may be limited, there is no reason why a responsible government should abandon that protection in favour of other limited remedies already available to parents and others as advocated by Mr Fulford.
Ground 1: Conclusion.
LORD JUSTICE KENNEDY: We turn to the appeal against sentence. Mr Fulford makes the point, which we accept, that this is the first occasion on which this appellant has been convicted of an offence of this kind. He has previous convictions, it appears, for offences of dishonesty in France but nothing for an offence of this kind. As Mr Fulford accepts, he is not entitled to any credit for a plea of guilty because he was convicted of the offence. The point is made that there was sufficient uncertainty about the nature of the criminality to make it unsurprising in the circumstances that there was a contest in relation to his criminal liability for what he had done. That is a point we find some difficulty in accepting. The reality is that he was convicted of an offence to which he could have pleaded guilty.
It is pointed out that this was material that had to be sought out. That, of course, is true. As Mr Fulford accepts, it was available to the young but they had to seek it. On the other hand, it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected, so far as is possible, by the law. There is, as Mr Fulford submits, difficulty with the worldwide web, but it is through the worldwide web that people are able to make very substantial profits.
This appellant, although he may have had difficulty in knowing what was legal and illegal in different countries worldwide, actually lived in the United Kingdom, where, as was found in the court below, this offence was committed. We do not find it easy to accept he had any difficulty in finding out whether what he was publishing was acceptable in this country.
Finally it is submitted that, if one looks at the authorities, sentences passed in relation to other offences were not of this magnitude, at any rate where the offence was not, on the face of it, relating to child pornography. That is true so far as it goes, but again the danger in relation to this type of offence was its accessibility to the young and vulnerable. In those circumstances it seems to us that, bearing in mind the statutory maximum of three years, the judge adopted the right approach in this case, and we see no reason to interfere with the sentence which he imposed.
The appeal against sentence is dismissed.
(There followed discussion regarding leave to appeal. Time was extended to 8 weeks from today to enable application to be made for leave to appeal and to re-formulate wording of questions to be considered for certification)