12/14/2023 0 Comments Image smith v2.2Photographs or pseudo-photographs found on the Internet may have originated from outside the United Kingdom to download or print within the jurisdiction is to create new material which hitherto may not have existed therein'."Ĥ. The Act is not only concerned with the original creation of images, but also their proliferation. We prefer the submission of Mr Michael Crimp on behalf of the respondent: 'A person who either downloads images onto a disc or who prints them off is making them. Nor do we accept that the natural interpretation leads to any absurdity suggested by counsel. We are certainly not persuaded that in some way the draftsman nodded and produced an ambiguous, obscure or illogical result. We do not accept that section 1 in its present form is either ambiguous or obscure. As a matter of construction such a meaning applies not only to original photographs but, by virtue of section 7, also to negatives, copies of photographs and data stored on computer disc. In this context this is 'to cause to exist to produce by action, to bring about' (Oxford English Dictionary). Accordingly the words 'to make' must be given their natural and ordinary meaning. Quite simply, it renders unlawful the making of a photograph or a pseudo-photograph. Giving the judgment of the court, Otton LJ said this at page 444E: "In our judgment, section 1 as amended is clear and unambiguous in its true construction. In that case, the defendant had downloaded from the Internet indecent photographs of children under 16 years of age. In considering these provisions, we have in mind what this court said in R v Bowden 1 Cr App R 438. (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 conversion into a pseudo-photograph."ģ. (7) 'Pseudo-photograph' means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a 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. (2) References to an indecent photograph include. 7(1) The following subsections apply for the interpretation of this Act. (4) Where a person is charged with an offence under subsection (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) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect them to be indecent. So far as material, the Act provides as follows: "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. This has generated prosecutions for offences under section 1(1) of the Act.Ģ. It is well known that electronic communication by means of the Internet and e-mails has led to an explosion in the dissemination of pornographic material, and in particular of indecent photographs of children. In each case, the image was saved in the temporary Internet cache as a result of the automatic function of the computer. In the case of Jayson, the image was downloaded by the appellant from the Internet on to his computer screen. In the case of Smith, the image was shown on an attachment to an e-mail. LORD JUSTICE DYSON: In these two appeals the appellants were convicted of the offence of making an indecent pseudo-photograph of a child contrary to section 1(1) of the Protection of Children Act 1978 ("the Act").
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