It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
The rule of law requires a proper administration of justice. This in turn mandates a reliable and qualitative court system with well educated and honest judges, prosecutors and advocates.
In R v Fellows (1996), a man was brought before the courts accused of possessing indecent photographs of children with a view to their being distributed or shown. Since the photographs only existed in the form of computer data, he contended that the provisions of the Protection of Children Act 1978 did not apply – there were no photographs. It sounds like the kind of semantic argument the exercise of which gives courts (and philosophers) a bad name, and it was held that Fellows was guilty.
But it appears to me (as I argue elsewhere) that the legal process was manipulated to ensure a finding of guilt.
In Fellows, Evans LJ concluded that, while Fellows possessed no (i.e. paper) “photographs”, he possessed “copies of indecent photographs”, justifying this conclusion by saying that there “is nothing in the Act which makes it necessary that the copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary.”
The reference to a copy would have been unnecessary because the “copy” would itself have been a photograph, and, if indecent and of a child, an “indecent photograph of a child”.
In R v Bowden (1999), Lord Justice Otton relied on, and thereby endorsed, the finding in Fellows “that although a computer disc was not a photograph [sic], it contained data which could be converted into a screen image and into a print exactly reproducing the original photograph from which it was derived”.
This is nothing more – and nothing less – than a dodge. Fellows is being taken as establishing that a computer disc contained data which could be converted into a screen image and into a print exactly reproducing the original photograph from which it was derived contains a copy of a photograph.
By amendments made to the Protection of Children Act 1978 by the Criminal Justice and Public Order Act 1994, data that can be converted into a photograph is included in the statutory definition of a photograph (s.7(4)).
This means that, if data can be converted into a photograph, the data IS the photograph, in the same way that the “negative as well as the positive version” of the photograph IS the photograph. None is a copy of a photograph. Indeed, it appears that the Court of Appeal already accepts this – prosecution counsel in Fellows argued that the negative is the only ‘photograph’ and all prints etc are copies of it. The Court felt no need to decide whether that was correct, but strongly inclined to the view that it was not. Evans LJ considered that the meaning of ‘photograph’ in ordinary parlance, both in 1978 and in 1996, was the picture or image which a person sees, whether as a print or ‘positive’ or, possibly, when a slide or microfiche is projected onto a screen. Evans LJ believed that ‘photograph’ was used in that sense in the 1978 Act and that s 7(4) confirmed that the negative was included also. And, but it ought not be necessary for me to say it here, s.7(4)(b) confirms that the data is included also.
Thus an image (or photograph) which a person sees when displayed on a computer screen (converted into a photograph in the statutory language) is, on the statutory definition, a photograph.
It is not a “copy of a photograph”. And this shorthand version of the statutory text is itself used to deceive: the reference to a copy of an indecent photograph is included in section 7(2) of the Act so that the offences listed in section 1 of that Act apply in relation to indecent (traditional, photographic) photographs as well as to copies (perhaps photocopies) of those indecent photographs; it would be absurd to argue that a photocopy of a photograph could not be caught by an Act intended to protect children from being exploited by indecent photographs being made of them simply because it was not a photograph – to do so would be to engage in the type of the semantic argument mentioned above (but Parliament still thought it necessary to cut such an argument off at the pass).
In Lord Justice Evans’ view, s.7(4)’s inclusion of the negative version of the photograph in the statutory definition was intended expressly so that a distinction between negatives and prints derived from them should not be made. In his view s 7(4) did not extended the meaning of ‘photograph’ beyond what was otherwise included in it. That is, the statutory definition of ‘photograph’ did not, before the amendments made by the Criminal Justice and Public Order Act 1994, include anything like ‘data, not visible to the eye, which can be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original photograph from which it was derived.’
By analogy with Lord Justice Evans’ view on s.7(4)’s provisions on negatives, the inclusion by s.7(4)(b) of ‘data stored on a computer disc or by other electronic means which is capable of conversion into a photograph’ in the statutory definition was intended expressly so that a distinction between data and negatives and prints derived from them should not be made.
It is thus unnecessary and improper to consider whether the data is a “copy of an indecent photograph”, because it is – by the statutory definition – a photograph. (What if, in Bowden, Otton LJ did not rely on Bowden’s material being “copies of photographs”? Then the only alternative would have been to consider them photographs, and to say that Bowden was guilty of making them one would have to explain how, rather than use silly word games to make it appear that he had.)
Moreover, I submit that evidence that the photograph (data) is a copy of an indecent photograph is inadmissible.
Murphy, in On Evidence, says that
Because the purpose of evidence is [to] establish the probability of the facts upon which the success of a party’s case depends in law, evidence must be confined to the proof of those facts which are required for that purpose. The proof of supernumerary or unrelated facts will not assist the court, and may in certain cases prejudice the court against a party, while having no probative value on the issues actually before it.
To convict a person of possessing an indecent photograph of a child, it is necessary to prove that the person possessed the photograph, that the photograph is indecent, and that it shows a child.
If the item in question is already, by the statutory definition, a photograph, that it is also a copy of an indecent photograph is a supernumerary fact. It has no probative value and is unnecessary, and consideration of the fact might (as, on a generous interpretation, happened in Bowden) confuse the court.
For a photograph is made in a way different from the way in which a copy of a photograph is made: a photograph is made (“caused to exist; produced by action, to brought about” – OED) by being taken (with a camera); a copy of a photograph is made, for example, by photocopying the photograph.
Whether a “photograph” is a “copy of an indecent photograph” is a question of fact to be decided on evidence (and who needs evidence when you can have rulings?). Fellows merely (logically) establishes that data is capable of being a copy of a photograph; data might itself be the photograph because, for example, it is a photograph taken with a digital camera. (This would have been the case even before the 1994 amendments.)
I submit, though, that the amendment made to the Protection of Children Act by the Criminal Justice and Public Order Act rendered (in 1996!) this finding in Fellows an irrelevance, of historical interest only.
If there is evidence that a defendant scanned in the photograph, does it prove that the defendant made a copy (the data) of the (traditional) photograph?
No. A photograph existing as data is converted into a (visible) photograph (a printout or an onscreen image). To convert a thing is to change its form, character, or function; no new thing is created.
The reverse happens when a photograph is scanned in to a computer: the photograph is converted from a visible photograph into the data form of the photograph. The data is not caused to exist; the data (by the statutory definition, the photograph) was made when the photograph was taken. This accords with the use of the word “scan” (or digitize) as used by IT professionals (data is captured; analogue (real world) values are converted into digital representations of those values).
Or, as Evans LJ said so well in Fellows, “The data therefore represent[s] the original photograph in another form [my emphasis]” .
For the the Court of Appeal to hold (to secure a conviction) that a copy of a photograph need not itself be a photograph (because the copy would then be a photograph and the reference to copy unnecessary), and then for a differently constituted Court unnecessarily to hold (to secure a conviction) that an indecent photograph is a copy of an indecent photograph seems, to me, rather like the Court having its (unnecessary) cake AND eating it.
If the Court had applied the statutory definition of photograph, the Court would have to have asked how the photograph was made. By dodging the issue by preferring the obsoleted definition from Fellows the Court acted dishonestly and unlawfully: the (supposed) precedent that downloading a file from the internet is an act of making was made ultra vires.
By accommodating this situation for many subsequent years (Bowden was decided in November 1999) advocates have revealed themselves craven.
The sources quoted in my two opening paragraphs on the rule of law (the Universal Declaration of Human Rights and a report of the Swedish Bar Association) were approved (or at least quoted positively) in Bingham‘s book “The Rule of Law“, suggesting that Britain’s highest judges have respect for human rights and the rule of law upon which they depend. The activities of various of his accomplices in English crime cast reasonable doubt on that.
Protection of Children Act 1978
S 7. -(1) The following subsections apply for the interpretation of this Act.
(2) References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.
. . .
(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.
Extracts from R v Fellows
Was the disk storing the first appellant’s archive, which he admitted having in his possession at the material time, an ‘indecent photograph’ within s 1(1)(c) of the 1978 Act? It cannot be said that the disk itself was a photograph within the dictionary definition, because that requires-‘a picture or other image obtained by the chemical action of light or other radiation on specially sensitised material such as film or glass’.
There is no ‘picture or other image’ on or in the disk; nothing which can be seen. The statutory definition includes the negative as well as the positive version (s 7(4)). The presence of this express definition can probably be traced back, in our judgment, to Straker v DPP  1 All ER 697,  1 QB 926, where the Queen’s Bench Divisional Court distinguished between photographic negatives and prints derived from them. The 1978 Act provided expressly that this distinction should not be made, and in our view it cannot be argued that s 7(4) extended the meaning of ‘photograph’ beyond what was otherwise included in it.
Indeed, the dictionary definition, quoted above, can be said to point to the negative rather than the positive version, or print, although as we understand it the print may also come within it when conventional techniques are used (‘obtained by the chemical action of light or other radiation on specially sensitised material’). Mr Mitting submitted to us that this is the correct interpretation of the Act: the negative is the only ‘photograph’ and all prints etc are copies of it. It is not necessary for us to decide whether this is correct, but we are strongly inclined to the view that it is not. The meaning of ‘photograph’ in ordinary parlance, both in 1978 and now, in our view, is the picture or image which a person sees, whether as a print or ‘positive’ or, possibly, when a slide or microfiche is projected onto a screen or enlarged by the appropriate equipment. It seems to us that ‘photograph’ was used in this sense in the 1978 Act and that s 7(4) confirmed that the negative was included also.
If not a ‘photograph’, is the computer disk nevertheless a ‘copy of an indecent photograph’ within s 7(2)? It contains data, not visible to the eye, which can be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original photograph from which it was derived. It is a form of copy which makes the original photograph, or a copy of it, available for viewing by a person who has access to the disk. There is nothing in the Act which makes it necessary that the copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. So we conclude that there is no restriction on the nature of a copy, and that the data represents the original photograph, in another form.
Extracts from R v Bowden
In R v Fellows and Arnold the Court of Appeal held that the scope of the definitions of indecent photographs in Section 1 and 7 of the 1978 Act were wide enough to include a form of technology not anticipated when that Act was passed; that although a computer disc was not a photograph, it contained data which could be converted into a screen image and into a print exactly reproducing the original photograph from which it was derived; that there was no restriction on the nature of a copy and the data represented the original photograph in another form; and that, accordingly, the judge was correct to rule that the disc held data which came within the definition of “photograph” for the purposes of the 1978 Act.
In our judgment Section 1 as amended is clear and unambiguous in its true construction. Quite simply, it renders unlawful the making of a photograph or a pseudo-photograph. There is no definition section. Accordingly the words “to make” must be given their natural and ordinary meaning. In this context this is “to cause to exist; to produce by action, to bring about” (OED). 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.