Atkins v DPP

JurisdictionEngland & Wales
JudgeLORD JUSTICE SIMON BROWN,MR JUSTICE BLOFELD,Mr Justice Blofeld
Judgment Date08 March 2000
Judgment citation (vLex)[2000] EWHC J0308-1
Docket NumberCase No: CO/3417/99; CO/3002/99
CourtQueen's Bench Division (Administrative Court)
Date08 March 2000

[2000] EWHC J0308-1

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

CROWN OFFICE LIST

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Simon Brown

Mr Justice Blofeld

Case No: CO/3417/99; CO/3002/99

Atkins
Appellant
and
Director Of Public Prosecutions
Respondent
and
Goodland
Appellant
and
Director of Public Prosecutions
Respondent

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 DPP

LORD JUSTICE SIMON BROWN
1

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.

2

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.

3

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.

4

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.

5

The Atkins Appeal

6

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.

7

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 separately."

8

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.

9

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.

10

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.

11

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 about.

12

The Protection of Children Act 1978, as amended, provides so far as material:

"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; or

(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 possession; or

(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 16.

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 photograph �

(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."

13

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

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