R v Harrison threw up something
absolutely massive, that I and most other commenters on this topic had overlooked.
The two offences prosecuted in this case are making indecent photographs of a child and having such photographs in one's possession. The more serious of them, the making offence, arises under section 1 (1) (a) of the Protection of Children Act 1978. The maximum sentence is 10 years. There is no defence in the legislation for this offence.
If a defendant is found to be in possession of an indecent image, they have the aforementioned defenses of having been sent them without request and not keeping them for an 'unreasonable' time. To be convicted of a possession charge, you need to have stored the image in a way that you can access it.
If a defendant is to be convicted of 'making' an image, there only needs to be forensic evidence of it having been downloaded. There is no need to prove that the defendant was able to access it. There is also
no statutory defense.
If a person sends you an image that you did not request, and you open it without realizing that it is 'indecent', and then you delete it, are you guilty of 'making'?
A summary of
Atkins v Director of Public Prosecutions (2001) suggests not. The judges whose summary
only I was able to access seem to have been extremely lucid, realizing the massive inconsistency:
The court was bound by Bowden: ‘it seems to me problematic enough to construe s.1(1)(a) (an offence to which no defence whatever is available) as encompassing the intentional making of copies. To construe it as creating an absolute offence in the sense contended for by the DPP, i.e. to encompass also the unintentional making of copies, in my judgment would go altogether too far. It would, moreover, as Miss Malcolm points out, represent a striking oddity in our criminal law: a situation where the self-same set of facts involves the commission of two quite distinct offences, possession under s.160 and ‘making’ under s.1(1)(a), no additional ingredient being required for proof of the more serious offence. In short, it is my conclusion that whilst ‘making’ includes intentional copying (Bowden), it does not include unintentional copying.’
This decision came from a higher court whose decisions lower courts are supposed to rely on. I am not a lawyer, and I have neither the time nor energy to become an expert in legal process, but according to the admittedly poor source
Wikipedia:
Generally speaking, higher courts do not have direct oversight over the lower courts of record, in that they cannot reach out on their initiative (sua sponte) at any time to overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent, and the case is not appealed, the decision will stand.
This presents a serious problem. A poorly represented person, who has been sent images they did not request, may be unable to defend themselves unless their lawyer mounts an appropriate defense citing Atkins v DPP (2001). While in theory, all lawyers tasked with defending a client against such charges should be aware of the relevant case law, the reality is likely to be quite different, especially for those who cannot afford a specialist lawyer. There remains a very serious risk of a person receiving a
life-changing conviction for having evidence of images found in their cache, whether or not these were intentionally accessed.
It's also worth asking why there is a statutory defense for the
possession of indecent images, but not for
making.
The offense of making was not intended to cover the ridiculous concept of 'making' a copy of an image on a screen. If it was, the same defenses would 'apply' as to possession of images. The prosecutors in R v Bowden were playing games in their interpretation of the law, desperate to 'put away a pedo', endangering the freedom of the entirety of the British public in the process. If the statutory defenses for possession were necessary, they were equally
if not more necessary to protect those accused of the equivalent yet
easier to wrongly accuse offense of 'making', an offense for which anyone without advanced knowledge of computer file systems could easily be accused.
The British public should be terrified of this threat to their freedom. If someone sends them an indecent image, they rely on a specialist lawyer citing Atkins v DPP, otherwise they are
fucked.
