Court of Appeal
| DOI | 10.1350/jcla.2011.75.3.700 |
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| Subject Matter | Court of Appeal |
Court of Appeal
Incitement to Distribute Indecent Photographs of
Children Revisited
Rv O’Shea [2010] EWCA Crim 2879
Keywords Indecent photograph; Incitement; Fraud; New evidence;
Appeal; Defence access
In October 2005 the appellant was convicted at the Crown Court at
Northampton of two counts of incitement to distribute an indecent
photograph of a child and three counts of attempting to incite the
distribution of an indecent photograph of a child. In November 2005 he
was sentenced to a term of five months’ imprisonment for each count,
all to run concurrently.
No indecent photographs of children were found by the police when
they arrested the appellant, but his credit card details were found on the
Landslide server (Landslide Productions was the portal which provided
access to, inter alia, child pornography and the arrest of those who
operated that site sparked Operation Ore) together with his e-mail
addresses and passwords that had been used elsewhere by the
appellant.
The appellant appealed out of time and sought to admit fresh evid-
ence in the form of expert evidence that was designed to demonstrate
that ‘Landslide’s computer records showed that the appellant was the
victim of identity theft; that the computer records on which the prosecu-
tion relied were rife with fraud; that the specific subscriptions said to
have been taken by the appellant were contaminated with fraud’.
H
ELD
,
DISMISSING THE APPEAL
, the evidence that the appellant
wanted to admit was not fresh evidence, it was evidence that could have
been adduced at trial and therefore was inadmissible under s. 23 of the
Criminal Appeal Act 1968. The sole contention was, in essence, that the
information held in the Landslide computers was made by a fraudulent
webmaster, yet this was pure conjecture, unsupported by any evidence
relating to those transactions.
C
OMMENTARY
The Court of Appeal stated: ‘[o]n the part of the appellant’s legal team,
the appeal has been approached, and for much of the time conducted, as
if it were a public inquiry into Operation Ore’ (at [5]). This is certainly
true as the appeal was touted in the press as a test case that would prove
that hundreds of defendants were wrongly convicted (see, for example,
S. Laville, ‘Legal challenge to web child abuse inquiry’, Guardian, 3 July
2009). If it were intended to launch a major challenge against Operation
Ore itself, then the wrong case was picked.
The Court of Appeal took considerable care to consider, then reject,
the arguments of the appellant and make clear that the court had no
168 The Journal of Criminal Law (2011) 75 JCL 168–184
doi:10.1350/jcla.2011.75.3.700
doubt about his guilt. The evidence that was adduced in both the
original trial and this appeal was damning and, despite many attacks on
the credibility of Operation Ore, it seems the evidence here could not be
controverted.
Unlike many offenders caught up in Operation Ore there was no
evidence that the appellant had been in possession of indecent photo-
graphs. The Crown argued, however, that the fact that he had subscribed
to certain parts of Landslide Productions website showed that he had
attempted to access websites displaying child pornography. Given the
absence of actual photographs, the appellant was charged with the
common law offence of incitement, the particulars were that he incited
the distribution of indecent photographs of children (distribution of
indecent photographs is where there is actual distribution or where
photographs are made available for others to access (see the Protection
of Children Act 1978, s. 1(1) and (2))). At the time of committal, the
appellant attempted to argue not only that there was no evidence that
he had done this, but that this was an offence not known to law. The
Divisional Court ruled against him and the matter proceeded to trial (R
(on the application of O’Shea) vCoventry Magistrates’ Court [2004] EWHC
905 (Admin)).
The narrow view of this case is that the Court of Appeal simply
decided that the threshold to admit new evidence under s. 23 of the
Criminal Appeal Act 1968 was not met. However, because, as is com-
mon practice within that court, it did in fact hear the new evidence
(before deciding it was inadmissible), the wider points of interest arise
from this evidence. The crux of the evidence was the testimony of
Terence Bates, a computer forensics expert who has publicly questioned
the legitimacy of Operation Ore (see, for example, D. Campbell, ‘Opera-
tion Ore flawed by fraud’, Guardian, 19 July 2007).
In his evidence, Bates put forward a number of specific attacks:
1. There were numerous indications of fraud on the Landslide com-
puter system.
2. The context of one of the entries ascribed to the appellant was
adjacent to someone identified as RG. The entries relating to RG
were, in the opinion of Bates, fraudulent.
3. The fact that transactions recorded against the appellant’s name
had been entered by a computer with an address assigned to his
internet service provider (ISP) was not conclusive that his com-
puter had accessed Landslide.
4. Bates had found on the Landslide computer a database of a com-
pany named Levenger which could be used to make fraudulent
subscriptions.
5. A transaction on the Landslide computer attributed to the appel-
lant had not been referred to at trial.
6. One of the subscription sites that could be accessed through Land-
slide was a site that was, in Bates’ view, entirely fraudulent.
Incitement to Distribute Indecent Photographs of Children Revisited
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