O'Shea v City of Coventry Magistrates' Court and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE GAGE,MR JUSTICE KEITH |
| Judgment Date | 05 April 2004 |
| Neutral Citation | [2004] EWHC 905 (Admin) |
| Docket Number | CO/6342/2003 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 April 2004 |
[2004] EWHC 905 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2
Mr Justice Gage
Mr Justice Keith
CO/6342/2003
MR GB PURVES (instructed by Barker Gillette) appeared on behalf of the CLAIMANT
MR D PERRY AND MR D DESMOND (instructed by CPS Birmingham) appeared on behalf of the DEFENDANTS
Monday, 5th April 2004.
The claimant in this case, Anthony O'Shea, is now aged 33. He seeks a judicial review of a decision made by a district judge sitting in Coventry Magistrates' Court on 4th November 2003. The District Judge is the defendant, and he has not appeared before this court. The interested party, the Crown Prosecution Service, has appeared before the court.
The background to the matter is as follows. Criminal proceedings followed an investigation in the United States in 1999 when it was discovered that a commercial child pornography business, operating from Fort Worth in Texas, was offering to supply child pornography to internet users in the United Kingdom and elsewhere. The business was known as "Landslide Productions Inc", hereafter "Landslide". It was established and operated by Thomas and Janice Reedy, husband and wife, living in Fort Worth. A police investigation in the United Kingdom uncovered evidence to demonstrate that child pornography websites operated by Landslide were accessed by internet users in this jurisdiction and criminal proceedings, we have been told, have been instituted against a large number of individuals.
The interested party's case is that there is evidence to demonstrate that the claimant gained access to child pornography sites and paid entrance fees to this site by use of his credit card. It is alleged that on 24th April 1999, the claimant made three attempts to enter websites called "child rape" and "forchild". The evidence is that "forchild" means children forced to have sex. It is said that the claimant successfully registered with the website "forchild" on 23rd April 1999 and 25th April 1999. It is also said that he successfully registered with the website known as "child rape" on 16th August 1999.
The claimant was arrested on 4th October 2002. He has been charged with three offences of unlawfully inciting another to distribute an indecent photograph of a child, contrary to common law, and three offences of attempting to incite, contrary to the Criminal Attempts Act 1981. On 4th November 2003 he appeared before the District Judge at Coventry Magistrates' Court and was committed to the Crown Court for trial.
By these proceedings, permission having been granted by leave of the Single Judge, he seeks to challenge the decision made by the District Judge to admit a document into evidence, an exhibit. He also seeks to challenge the decision on the basis that there was insufficient evidence to justify his committal. Finally, he challenges the decision on the ground that the evidence discloses the commission of no offence.
The prosecution evidence against the claimant comes from a number of sources: namely witnesses who gave evidence of the operations of Landslide in the United States (a former employee and investigating officers); documents obtained from computers operated by Landslide; an employee of Alliance and Leicester plc; a computer expert; and investigating police officers.
The committal proceedings were proceedings pursuant to section 6(1) of the Magistrates' Court Act 1980 and the Magistrates' Court Rules 1981. As is well known in such proceedings, the evidence is tendered in documentary form and the prosecutor is entitled to outline the case. No evidence may be tendered on behalf of the defence. In order for the evidence to be admissible at committal, it must be tendered by the prosecution and fall within sections 5B, 5C, 5D or 5E of the 1980 Act.
The Crown submits that the evidence provided by a former employee of Landslide and the computer expert established that there was no possibility of a person gaining access to and paying a subscription to view the "child rape" and "forchild" websites by accident. The procedures necessary to gain access to the websites would have involved logging into the Landslide website; choosing to enter a site specifically referred to as child porn and pressing enter; selecting a site after viewing a sample of the images available on the various websites; and completing a registration page with credit card details.
In a helpful skeleton argument, Mr Purves, on behalf of the claimant, has summarised the general procedures involved. They are as follows, and it is a summary of the expert evidence.
The Landslide web page offered the opportunity of connection by hyperlinks to other websites operated by third parties. Those websites carried prohibited images of children. In offering such access, the Landslide website operated as a portal, meaning a website which is intended to operate as a gateway to other websites via hyperlinks. The person accessing the Landslide website was invited by the pre-programmed content to complete a form, entering certain personal data. That data consisted of their name, address and e-mail address, and also financial information such as credit card details. In that way, the person was able to select which hyperlinked websites could be accessed and could access those websites for a pre-set time, and a predetermined price would then be debited against the nominated credit card.
The computer carrying the website was pre-programmed to accept or reject such data. If the data was rejected, no connection to the hyperlinks was possible. If the data was accepted then for a limited period of time, according to the subscription selected, there was connection to the hyperlinks.
However, connection to the hyperlinks does not mean access to the websites. Access was obtained by means of a secure password which had to be entered each time the subscriber wished to view those websites. Connection could be made immediately after a subscriber signed up. A password was also e-mailed to him. The remote computer operated by Landslide was pre-programmed to accept or reject passwords as currently valid, expired, or rejected as not valid. All transactions of these kinds were recorded in the database of the remote computer operated by Landslide. They apparently included instances of attempted access to the hyperlinks by a purporting existing subscriber which the database recorded as rejected. All transactions are characterised as being self-populated in that they are recorded not by a human being inputting the data but as a record kept by the computer of the transactions interfaced between the computer, acting in accordance with its programming, and intending or current subscribers or persons claiming to be such subscribers.
All transactions between Landslide, the webmasters controlling the hyperlink web pages and the subscribers to the hyperlink web pages were entirely computer-operated, requiring no interactions between human beings.
The first point taken on behalf of the claimant is that the District Judge had regard to evidence which was inadmissible. That evidence related to an exhibit produced by Police Constable Sharon Girling, a police officer involved in the investigation. She is, as it appears, an officer from the United Kingdom responsible for the investigation into Landslide. She made two witness statements and produced a number of exhibits. One of those exhibits is document SAG/01 and another is SAG/02. They chart purchases from the websites by an e-mail address which reads "anthony@adpos.freeserve.co.uk". It was accepted by the claimant at interview with police officers that this was his e-mail address. The document contained a breakdown of what it is alleged were successful and unsuccessful attempts by the claimant to enter the websites, and charges made to his credit card. The information contained in the document was obtained from the Landslide database.
In her statement dated 18th February 2003, Police Constable Girling stated:
"To gain access to [the] material, anthony@adpos.freeserve.co.uk used a credit card, the details of which are … "
She then set out a Mastercard number with the expiry date of the end of the 10th month of the year 2001. The statement goes on:
"The purchaser was required to complete a registration/sign-up document supplying the website owner with personal information. These details needed to match the billing details of the credit card including the name and address. The subscriber at this stage also had to supply the company with a password. The individual anthony@adpos.freeserve.co.uk, upon registration, supplied their name as Anthony O'Shea and their address 33 Scots Lane, Coventry, West Midlands, CV6 2DQ."
There is evidence from a representative of Alliance and Leicester plc to the effect that the Mastercard credit card number was in the name of a card issued to the claimant in October 1998. As we understand it, the evidence of the Alliance and Leicester witness is not challenged by the claimant.
As I have indicated, the first point taken by the claimant in these proceedings is that the evidence of the computer printout referred to by the woman police constable is hearsay evidence and inadmissible. It is submitted that the evidence is not merely that of a mechanical record but contained information inserted by a human interaction. The printout is contained in the papers at divider 4, pages 1 and 2. In particular, looking at...
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