pca1978

A "discourse of resistance"

What is a photograph?

Since the Protection of Children Act 1978 does not define the word “photograph”, it is a word of ordinary English usage.

Oxford English Dictionary: photograph “A picture or image obtained by photography; (originally) a picture made using a camera in which an image is focused on to sensitive material and then made visible and permanent by chemical treatment; (later also) a picture made by focusing an image and then storing it digitally.”
“Photography” is “The process, practice, or art of taking photographs; the business of producing and printing photographs.”

In an appeal considering whether a computer file could come within the definitions included in the 1978 Act, LJ Evans considered the dictionary definition:

R v Fellows [1997] 1 Cr App R 244
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.

Where the the Protection of Children Act refers to photographs, the text is to be taken as referring also to negatives; according to LJ Evans the “presence of this express definition can probably be traced back […] to Straker v DPP [1963] 1 All ER 697, [1963] 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.”

The Act also defines references to photographs as including data . But the data caught by Act only extends to data stored on computer disk or by other electronic means.
The data must exist before it can be stored; this is a requirement of both logic and normal English usage.
That is, the act of storing the data does not created the data stored on the computer disk.

To treat the “data stored on computer disk” as being created by the act of copying is to treat it as a “copy of a data stored on a computer disk which is capable of conversion into a photograph”, that is, as a copy of a photograph.
That is to treat s.7(4)(b) as mere verbiage.

Fellows: 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 Act thus contemplates the creation of the data as an act of taking a photograph, not of making a photograph (by causing to exist the data).

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Protection of Children Act 1978
7 Interpretation.
(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.
(3) Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children and so as respects pseudo-photographs.
(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.

S. 7(4) substituted (3.2.1995) by Criminal Justice and Public Order Act 1994 (1994 c. 33), s. 84(3)(b); S.I. 1995/127, art. 2(1), Sch 1

Criminal Justice and Public Order Act 1994
84 (1) The Protection of Children Act 1978 shall be amended as provided in subsections (2) and (3) below.
(3) In section 7 (interpretation)—
(b) for subsection (4) there shall be substituted the following subsection—
“(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.”

The Strange Case of the Unnecessary Cake

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.

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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 [1963] 1 All ER 697, [1963] 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.

When is a photograph not a photograph? When it’s absurd!

I will apologize in advance for this post. It is technical and dry, and quite long, and I expect that most of the (probably very few) posts in this blog will be in the same mould.

In April 1994 police arrested Alban Fellows at Birmingham University having been tipped off by US Customs about a computer library of pornography including indecent pictures of children.  Following investigation, Stephen Arnold was also arrested, having sent material to Fellows in order to obtain a password to the library.
Fellows was charged with possessing indecent photographs of children with a view to their being distributed or shown contrary to s.1(1)(c) of the Protection of Children Act 1978, Arnold with distribution contrary to s.1(1)(b).
The Protection of Children Act 1978 was amended by the Criminal Justice and Public Order Act 1994 to extend the definition of “photograph” to include computer data, and to introduce the concept of the pseudo-photograph, which is an image which appears to be a photograph. Those amendments came into effect on 3 February 1995, and were thus not relevant in the Fellows & Arnold case.

At trial in March 1996, counsel for both accused submitted that the Protection of Children Act 1978 did not apply in the case of images existing as computer data, arguing that, since the Criminal Justice and Public Order Act 1994 expressly amended the 1978 Act to include stored computer data, such data was not covered by the unammended provisions.

In ruling against the defendants, Judge Owen held that “the result of the scanning process which is necessary in order to send a photograph by e-mail and that which is stored as a result of a transmission may each be properly categorised as copies of a photograph”.

Which – in theory – ought to have allowed Arnold to change approach and claim that he took the photographs with a digital camera. In making his ruling, Judge Owen had apparently accepted that the need for the amendment of s.7(4) demonstrated that images in the form of computer data were not caught by the 1978 Act. Since photographs taken with a digital camera would be “photographs” (but not for the purposes of the Act) and not “copies of photographs”, he would have been forced to direct the jury to acquit. Absurd!

It ought not – even as a matter of logic – be possible to carry out the major of the mischiefs an Act intends to combat (the exploitation of children by taking indecent photographs of them) in order to escape culpability for a subsidiary mischief. But such is the implication of the ruling, if we believe Andrew Murray:  “a completely digital photo (taken with a digital camera and then downloaded onto a hard drive) would appear to fall between these two definitions, being neither a photograph or a copy of a photograph nor a pseudo-photograph”.

And, in practice, it is extremely unlikely that such a dodge would have worked. Fellows and Arnold both appealed, and the Court of Appeal set about its task of supporting a finding of guilt by disdaining the suggestion that Parliament’s intention was relevant to the meaning of statutory words: “First, because the scope of the original statute was established by the true construction of the words used at the date when the statute was passed. That meaning was not altered by the later introduction of amendments, even if… the effect of the amendments was such as to change the context of the original words and therefore to modify their original meaning with effect from the date when the amendments were introduced. ”
It was no part of the Court of Appeal’s reasoning that data representing a photograph would be a “photograph” for the purposes of the 1978 Act, but the groundwork for such an argument was thus laid. A current dictionary definition of “photograph” might be “a picture made using a camera, in which an image is focused on to light-sensitive material and then made visible and permanent by chemical treatment, or stored digitally”.
The meaning of everyday English words is not a question of law, but rather a question of fact. This is to prevent the normal evolution of everyday language necessitating regular amendment of legislation. It MIGHT have been uncommon in 1996 to call a “digital photograph” a “photograph”(!?!), but it would be perfectly idiomatic today. In fact, the Kodak Digital Camera was demonstrated in 1975; the Joint Photographic Experts Group was created in 1986 to set standards for data formats for digital images under the auspices of the International Organization for Standardization and to carry on work initiated by ISO in 1983;  in 1990 the Dycam Model 1 – also marketed as the Logitech Fotoman – was the first digital camera to actually go on sale; in 1992, Mosaic, the first web browser that let users view photographs over the Web, was released by the National Center for Supercomputing Applications.
Had the Court of Appeal inquired with experts in 1996, it might have (happily, for sure) found that digital data representing a photographic image could correctly be termed a  “photograph”.

But had Arnold claimed responsibility for taking the photographs following Judge Owen’s ruling, would the judge have been bound by his (apparent) acceptance that photographs in the form of data were not caught by the 1978 Act to direct an acquital? If not (surely not!), what approach might the trial judge have adopted to ensure a finding of guilt?

From a newsaper report on the trial, it appears that evidence showed that “the pictures downloaded by computer by Mr Arnold to Mr Fellows were copies taken from Lolita, a pornographic magazine which included indecent pictures of children.”

To be clear, then – on the evidence the photographs were “copies of photographs”. That is, had Arnold claimed to have taken the photographs, the evidence would have shown his claim to be untrue.

This demonstrates clearly that, for the purpose of the Protection of Children Act, whether  a photograph is a “copy of a photograph” ought to be considered a question of fact, not of law.
It was improper for the trial judge to rule that the images in question were copies of photographs.

Whether or not Judge Owen ruled that a photograph existing as data was a copy of a photograph, a non sequitur wormed its way into subsequent legal reporting (and reasoning?).
As seen by the IWF, the Fellows & Arnold appeal established as a point of law that “a computer file containing data that represented the original photograph in another form was ‘a copy of a photograph'”.
According to Murray, “the collective view of the court in Fellows was that digital images held on hard drives were not photographs but were copies of photographs originally taken in the traditional manner.”
According to Yaman Akdeniz, “the trial judge ruled that computerized images could be legally regarded as photographs” and the Court of Appeal “upheld the ruling of the trial judge that images stored on computer disc constituted photographs”.

But the way Professor Ian Cram has it, Fellows establishes “that data held on a computer was capable of [my emphasis] constituting a copy of an indecent photograph”.

Judge Owen had ruled that “the result of the scanning process which is necessary in order to send a photograph by e-mail and that which is stored as a result of a transmission may each be properly categorised as copies of a photograph”.

This is fine, as far as it goes. If you have a traditional photograph and you wish to do something with it on a computer system (including email it to someone else), you must first scan in the photograph. But it is fallacious to conclude that any photograph found on a computer was scanned in: we have already considered another way that digital photographs might come into existence – digital photography.
A photograph taken with a digital camera is a copy of nothing; it is the original item; violence would be done to the everyday meaning of the word “copy” to call such a photograph a “copy”. In the scenario we are proposing, a defendant has sought to deny legal culpability for a distribution offence by claiming responsibility for a creation offence; just making the argument would preclude reliance on erroneous ground that any image found on computer was a ‘copy of a photograph’.

It is not even clear whether the trial judge did rule that any photograph stored as data is a copy of a photograph – it is possible that the judge indicated that he would direct the jury to consider the evidence and, if satisfied that the images in question were copies of photographs (i.e. were the result of a scanning process), find the defendants guilty. Fellows and Arnold might then have decided that it was in their interests to plead guilty.

But if the judge did rule that, as a point of law, a photograph existing as data is a copy of a photograph, then he made it impossible for Arnold to disprove it by evidence – if, for example, Arnold did take the photographs with a digital camera, the judge made it impossible to adduce that evidence.

In Nelson, Lord Justice Simon Brown said that Justice requires that the Judge “assists the jury to reach a logical and reasoned conclusion on the evidence. Such a conclusion, one need hardly add, is likely to be the right one.”

In Fellows, the trial judge (possibly) prevented the jury reaching the correct conclusion by (possibly) declaring a question of fact to be a question of law, thus keeping evidence from the jury. Certainly, (at least, it is reported that) the Court of Appeal rubber stamped such an interpretation and (reportedly) set the precedent that data=copy.

If Arnold did scan in the photographs from a magazine called Lolita, and if the prosecution could adduce evidence to that effect, the correct decision would have been to find Arnold guilty of distributing an indecent photograph of a child (by emailing a copy of a photograph to Fellows).
If, however, it was merely assumed that the photographs were necessarily copies (that must have been scanned in by some unknown person somewhere sometime) then there was no evidence to prove the fact that the photographs were copies of photographs. As a fact in issue – a fact requiring proof by evidence – it is incumbent upon the prosecution to prove that that the photographs were copies of photographs; in the absence of proof, the prosecution has not proved an essential element of its case and there is no case to answer.

Simon Brown LJ said in Roth that a court’s role under the Human Rights Act 1998 “is as the guardian of human rights.”

But what happens when the court itself manipulates the trial process to ensure a finding of guilt?

And the dead were judged according to their works

And I saw the dead, small and great, stand before God; and the books were opened: and another book was opened, which is the book of life: and the dead were judged out of those things which were written in the books, according to their works.

Revelation 20:12

It seems fair that men will be held responsible for their works, but are works ever to be judged according to their authors?

For me, one of the problems with the current child abuse imagery regime is its scope – its vagueness (or, as its supporters maintain, its flexibility) makes it impossible to know what is caught by the law, and what is not. Nothing much can be gathered from considering the express purpose of the law – to prevent the exploitation of children by making indecent photographs of them. Exploitation is… but of course, everyone knows what exploitation is… surely? But aren’t child models “exploited” by the fashion industry every day? Children are people aged under 18. And indecent is… uhm… but photographs are definitely photographs! (Unless they are tracings! Oh, and there are these things called pseudo-photographs…)

Indecency is not defined; from the case law, it is anything that offends against the “recognised standards of propriety”. I consider myself to be reasonably literate, but that phrase means nothing to me. Perhaps the prosecutions that have been brought can help us work out the law’s scope?
Whenever a person is sentenced for a child abuse image offence, the press/state combo never forgets to remind us of the nature of the crime:

Det Con Ian Pennington, from Wigan CID, said: “[The perpetrator] was never in contact with any of the abused children in the pictures – but those accessing such horrible material are well aware that their interest perpetuates the terrible suffering of victims.”

The children in the pictures are victims; they were abused; they were harmed in the production of the images; their suffering was terrible. And, what is more, their suffering will continue into the future. Mr Justice Keith sets out the official justification for punishment:

“The serious psychological injury which they [the children in the picture] would be at risk of being subjected to arises not merely from what they are being forced to do but also from their knowledge that what they are being forced to do would be viewed by others. It is not difficult to imagine the humiliation and lack of self-worth they are likely to feel. It is not simply the fact that without a market for these images the trade would not flourish. If people… continue to download and view images of this kind… the offences which they commit can properly be said to contribute to the psychological harm which the children in those images would suffer by virtue of the children’s awareness that there were people… watching them forced to pose and behave in this way.”

Child abuse images are clearly a bad thing. Not only are the children forced to do… things…. things that harmed them… but the fact that photographs were taken makes their suffering worse. And without a market for such images the trade  (in images? or in child abuse?) would not flourish. Moreover, the offences committed by people downloading, possessing and viewing such images itself directly contributes to the psychological harm which the children in those images suffer, and the knowledge that such use is made of the photographs of their suffering will make the suffering perpetual.

The academic gloss on child abuse imagery is similarly confident. In “Information Technology Law”, Andrew Murray says that

Child abuse images are the most extreme form of pornography and are always obscene no matter which community values apply. There are a number of reasons why child abuse images are treated differently to adult pornography but prime among them are that to produce a child abuse image a child must be abused: thus the image is a record (and evidence of) a crime in a way pornographic images are not.

How can anyone possibly argue about the need for this Act?

A child abuse image is “a record (and evidence of) a crime”…

Well, duh! If an image IS a “child abuse image” (or, more properly, an indecent photograph of a child) then it was taken contrary to section 1(1)(a) of the Protection of Children Act 1978, and the photograph is evidence of that “taking” offence. That the photograph is evidence of a crime is thus true by definition, but this says nothing of the lawfulness of the activities photographed. But the authorities mean more than that, surely?

They wish us to believe that evidence of crime is recorded IN the photograph, not that the taking of the photograph WAS the crime.

But the public record seems to tell us that it is not always the case that the images show criminally unlawful activity. Every now and then we get to hear of some “overzealous” police application of the child abuse image provisions: Tierney Gearon’s photographs of her children in the Saatchi Gallery; Scorpions’ album artwork in Wikipedia; Julia Somerville’s “family photographs”; Nan Goldin’s photograph of  “Klara and Edda Belly Dancing”.
What crime is documented by these photographs?

No prosecutions took place in the above cases. Maybe once the police (only doing our job, gov) had taken off their jackboots, wiser(!?) heads prevailed?
After the investigation into Tierney Gearon’s photographs at the Saatchi Gallery, the CPS Casework Directorate considered the evidence and advised the police that the photograph was not indecent and there was not a realistic prospect of a conviction for an offence under the 1978 Act.
Nan Goldin’s photograph “Klara and Edda Belly Dancing” was also part of the exhibition, and after the police raided the Baltic gallery over complaints relating to Goldin’s work, the CPS concluded that – even if the photograph were to be considered indecent because of changed mores – any accused would have a “legitimate reason” defence, namely the previous CPS description of the image as non-indecent.

But these non-prosecutions tell us nothing about what IS indecent. Maybe successful prosecutions will tell us?
One man had recorded a documentary showing a medical procedure on a young boy and had extracted a certain scene; he claimed that since the image was extracted from a “decent” TV programme, the extracted image could not be indecent (no English broadcaster would show an indecent programme, surely?); he was convicted; the Court of Appeal upheld the conviction saying that the extracted scene constituted a new image and the jury was right to consider only that image and not the circumstances of how it was made – the motivation, of a photographer or a possessor, cannot make a photograph indecent. (So the image was indecent in the extract, but not in the original? Or the original was also indecent? But presumably the broadcaster – who ought to know, and whom we ought to be able to trust not to broadcast indecent material – thought it wasn’t!)
It is difficult to image what had changed between the original, complete TV programme and the extract made of it sufficient to make the extract indecent, other than the defendant’s motivation.

In another trial, the defendant had imported naturist photographs from Qatar; he had taken the photographs himself on a public beach; none of the photographs showed children engaging in any kind of sexual activity or being degraded in any way – essentially they were of children playing or being with adults, engaging in normal outdoor activity such as playing on a beach; he was convicted; the Court of Appeal upheld the conviction but quashed the custodial sentence. The trial judge had directed the jury that visibility of genitalia was a relevant consideration in determining whether the material was indecent; the Court of Appeal approved the direction. So was the emphasis of the photographs on the genitalia? (As the Americans say, a lascivious display of the genitalia?) It is not clear, but it is clear that photographs showing nudity are going to show genitalia to some extent. In R v Oliver & Ors (2002), the Court of Appeal had explicitly excluded mere nudity from indecency: “We do not agree […] that COPINE typologies 2 [Nudist (naked or semi-naked in legitimate settings/ sources)] and 3 [Erotica (surreptitious photographs showing underwear/nakedness)] are properly within Level 1. As it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. ”

So it was the nudity what done it? Who knows? We know that the Nan Goldin photograph “Klara and Edda Belly-dancing” was (probably) not indecent yet showed nudity: a girl of about seven dancing in a kitchen, wearing knickers and some artlessly draped shreds of coloured cloth, and on the floor beneath, her companion is naked, back arched and legs splayed, exposing her vulva. (Obviously not a lascivious display of the genitals, though.)
I say “probably” because despite the statement by the CPS that the image is not indecent, the CPS admits that “Even if the photograph WAS NOW considered to be indecent, a defendant would be able to raise a legitimate defence” (my emphasis). (Why does a historical statement by the CPS that an image is not indecent amount to a legitimate reason to possess the image?)

And it appears that there isn’t even a requirement for nudity, at least in so far as bringing a prosecution is concerned. In 2011 a prosecution involving films which had been screened on television reached Gloucester Crown Court – that is, the police had arrested the man, and the CPS had initiated the prosecution; as it happened, the trial judge ruled that whatever the defendant’s motives for gathering the film clips together, they could not be regarded as indecent within the meaning of the law. The clips were “predominately of children in semi-undressed state”.

So images of scantily clad young children can, at the very least, get you in the dock. The judge prevented the evidence going before the jury, but that doesn’t tell us anything about what WILL be considered indecent – presumably the CPS had believed there was a realistic prospect of a conviction for an offence under the 1978 Act, else they wouldn’t have taken the matter to trial.

Maybe there is another explanation for the attribution of indecency by a jury. In the Qatari nudist photo trial, the accused had admitted a “paedophilic interest” in the photographs. It appears that this was admitted in evidence(!). Perhaps it was his “use” of the photographs that led to the conviction?

In a public lecture in 2010, one of the usual suspects, Alisdair Gillespie – Professor of Criminal Law and Justice at De Montfort University and trustee of the Internet Watch Foundation – argued that the definition of an indecent photograph of a child is problematic as it capable of criminalising art galleries or parents who take innocent pictures of their children while, at the same time, not criminalising paedophiles who take photographs of naked children. He said that, arguably, the law has “lost its focus and we are potentially ignoring what we know about the behaviour of offenders. The law needs to be reformulated to ensure that it is better focused on the protection of children and the actions of the offender.”

The current law has criminalised art galleries? Parents who take innocent pictures of their children? When?
And juries really knowingly acquit paedophiles who have taken photographs of naked children?
The moral entrepreneurs driving the development of the legislation want the law to take into account “offender’s” actions, clearly. But why should a photograph of a naked child taken by a paedophile be indecent while a photograph taken by the child’s mother (say) showing the same scene be lawful? What then of the “use” made of it by people who ought not to possess it if, for example, the photograph is uploaded to a social networking site by someone who improperly understands the privacy settings and inadvertently makes it public?

The state and its agents lie about child abuse images. They lie in order to drive the development of the law.

A discourse of resistance?

Inspired by another blog, this blog aims to present a “discourse of resistance”.

The law of England and Wales deals with the problem of child pornography by addressing “indecent photographs of children” with the Protection of Children Act 1978 – an “Act to prevent the exploitation of children by making indecent photographs of them; and to penalize the distribution, showing and advertisement of such indecent photographs”.

While the protection of children might be necessary in a democratic state, the Protection of Children Act is not. It fails even to reach the minimum requirements for just law – it is unclear and thus offensive to the regime of legal certainty required by the Convention for the Protection of Human Rights and Fundamental Freedoms, particularly in the area of criminal liability. Article 7 of the Convention provides that “no one shall be held guilty of any criminal offence or omission which did not constitute a criminal offence under national or international law at the time when it was committed”. This is designed to ensure that signatory states do not pass or enforce laws which criminalize behaviour in such a way that their citizens cannot regulate their conduct in order to avoid criminal liability.

It is unclear because it is uncertain what material it applies to, and because of this lack of clarity it is applied to a far greater range of material – and thus people – than is justifiable.

By being presenting a discourse on the irrationality of the Protection of Children Act, this blog will – hopefully – offer some resistance to it.