The Court of Appeal dismissed the appeal of Jonathan Bowden against his conviction of 12 counts of having made an indecent photograph of a child contrary to section 1(1)(a) of the Protection of Children Act 1978.
The appellant had taken his computer hard drive to a computer firm for repair. While examining the computer, the repairer had found indecent material on the hard drive. As a result of a subsequent investigation, police had seized a computer and equipment including hard disk and floppy disks from the appellant. They had examined the disks, which contained indecent images of young boys.
The appellant had downloaded the photographs from the Internet, and either printed them out himself, or stored them on his computer disks. It was not contested that all the photographs were indecent and involved children under 16 years of age.
When arrested and interviewed the appellant accepted that he had obtained the indecent material from the Internet and had downloaded on to his computer for his own use. He had not known that it was illegal. He admitted that he had printed out photographs from the images he had downloaded. One of the images existed only as data on disks, and was a pseudo-photograph.
At the trial it was submitted for the appellant that he was not guilty of "making" photographs contrary to s 1(1)(a), which provided that:
(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 . . .
That submission was rejected by the judge, who ruled that on the agreed facts the appellant's behaviour amounted to the taking or making of an indecent photograph or pseudo-photograph, and was therefore caught by the Act.
Sadakat Kadri (Sheratte Caleb) for the appellant; Michael Crimp (Crown Prosecution Service, Cambridge) for the Crown.
Lord Justice Otton said that it had been submitted for the appellant that there was no offence of "making" a photograph: the conduct criminalised by the statute was either taking, or permitting to be taken, a photograph, or making a pseudo-photograph. His alternative submission was that the verb "make" was used in the sense of "create", and should not be understood to encompass mere downloading or printing out of computer data.
It was contended that none of the changes made by the 1994 Act altered the fact that the mischief at which section 1 of the 1978 Act had always been aimed was the active creation of child pornography. Although the amended section now covered those involved in the creation of pseudo-photographs, who might have no contact with the subjects of the images, the addition of the verb "make" did not alter the fundamental nature of the offence.
Section 1 as amended was, however, clear and unambiguous in its true construction. Quite simply, it rendered unlawful the making of a photograph or pseudo-photograph. There was no definition section. Accordingly the words "to make" had to be given their natural and ordinary meaning. In the present context that was "to cause to exist; to produce by action, to bring about" (OED). As a matter of construction such a meaning applied not only to original photographs but, by virtue of section 7 of the Act, also to negatives, copies of photographs and data stored on computer disk.
The submission of counsel for the Crown was to be preferred. He had contended that a person who either downloaded images on to disk or who printed them off was making them. The Act was not only concerned with the original creation of images, but also their proliferation. Photographs or pseudo- photographs found on the Internet might have originated from outside the United Kingdom; to download or print within the jurisdiction was to create new material which hitherto might not have existed therein.