No:
200504388 B4
Neutral Citation Number:
[2005] EWCA Crim 3093
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Tuesday, 1st November 2005
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE OPENSHAW
DAME HEATHER STEEL
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R E G I N A
-v-
MICHAEL DOOLEY
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Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -
MR P MITCHELL
appeared on behalf of the APPELLANT
MS R DRAKE
appeared on behalf of the CROWN
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J U D G M E N T
1.
LORD JUSTICE HOOPER: On 17 March 2005 in the Crown Court at Oxford, before HHJ McIntyre, the appellant pleaded guilty on re-arraignment to six charges of an offence against
section 1(1)(c)
of the
Protection of Children Act 1978
. That makes it an offence to be in possession of indecent photographs or pseudo-photographs of a child with a view to their being distributed or shown by himself or others. By virtue of subsection (2):
“... a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by another person."
2.
Prior to the trial, HHJ McIntyre was asked to give a ruling as to the meaning of the words "with a view to" in this Section. He gave that ruling. Following the ruling and in the light of it, the appellant pleaded guilty. He now submits that the judge erred in law in his interpretation of the words "with a view to".
3.
The phrase "with a view to" can be found in hundreds of different statutory provisions. In so far as the criminal law is concerned, see, for example,
section 92 of the Trade Marks Act 1994
;
section 1(2) of the Theft Act 1968
; section 17 of that Acts (false accounting);
section 20
and
section 21
, which creates the offence of blackmail. In
section 21(1)
, it is provided:
"A person is guilty of blackmail if, 'with a view to gain for himself or another or with intent to cause loss to another', he makes any unwarranted demand with menaces."
4.
The phrase “with a view to” even appears in the
Human Rights Act. Section 1(5)
provides that a protocol means:
"... a protocol to the Convention -
(a) which the United Kingdom has ratified; or
(b) which the United Kingdom has signed with a view to ratification."
5.
The phrase also appears, for example, in the
Obscene Publications Act 1964
and in the statutory provisions regarding Drug Treatment and Testing Orders.
6.
We turn to the facts of this case. KaZaA is a peer to peer file sharing network that enables Internet users to share any type of computer file. Users become part of a network of other KaZaA members worldwide by downloading the necessary software from the Internet. All members have a "My Shared Folder" which contains files which, when the computer is connected to the internet, can be accessed by any KaZaA member. At any one time, there may be in excess of four million KaZaA members connected to the system.
7.
KaZaA effectively functions as an enormous "library" with its contents stored on the computers of all its active members at any one time. A member wishing to find a particular type of file will enter a term into a search engine, which is part of the software. KaZaA will then search the "My Shared Folders" of all members currently connected to the Internet and provide a list of matching files. The person searching can then select a file and download to his "My Shared Folder". Unless it is moved from their "My Shared Folder" it becomes part of the "stock" of the "library" and can in turn be accessed by the other members. There is a facility for making the "My Shared Folder" inaccessible to others, but the appellant appears to have been unaware of it.
8.
On 10th February 2004, the police searched the appellant's home and seized computer equipment. KaZaA was installed on the computer. There were many thousands of indecent images of children on the appellant's computer, many of which he had obtained via KaZaA. Of the thousands of images, only six were found in the appellant's "My Shared Folder".
9.
The downloading of images from KaZaA will often take many days, the computer being left on for long periods of time. Rather than just download a few images, the appellant would download a very substantial number of images. The images, so we were told, could not effectively be accessed by others until such time as the "My Shared Folders" had the completed image. Thereafter, on the appellant's case, it was his "specific intention" to remove the photograph or image from the "My Shared Folder" to some other part of his computer, where it could not be seen by others. Because of the large number of images that were downloaded, it took him time to do that. In so far as the six images with which this case is concerned, we were told that they had actually been in the "My Shared Folder" for some ten days before the police intervened. It thus follows that they were available to be accessed by the many members of this "club" during those ten days.
10.
It is perhaps unfortunate, with hindsight, that the judge was not presented with a clear set of facts or assumed facts in order to resolve the legal issue. In his ruling, the judge said:
"It seems to me that what the prosecution needs to prove is that a participant downloads a particular photograph or image in the knowledge that it is likely to be seen by other participants who have access to same folder into which the image goes."
11.
Mr Mitchell, of course, did not have the benefit of the transcript and tells us that, at the time, he did not understand the full impact of that sentence. We return to this passage later.
12.
The judge then said:
"If he downloads the photograph or image with that knowledge he is possessing it during the time it is in the My Shared Folder ‘with a view to’ its being distributed or shown by him to other members of the club. It may be that the defendant's specific intention is immediately to remove the photograph or image from the My Shared Folder to some other part of his computer where it cannot be seen by others, but whereas that may provide a defendant with a defence if the charge were possession with intent to distribute or show, it does not amount to a defence to possession with a view to its being distributed or shown in the circumstances. I think there is a difference between the meaning of the words 'with the intention of' and the words 'with a view to'. The fact that it may not have been a defendant's specific intention to distribute or show the photograph or image to others merely provides him with mitigation in respect of the charge he faces under
Section 1(1)(c)
. The words 'with a view to' have a wider meaning than 'with the intention of'.
It follows that if a person charged with this offence did not know that as a result of using the particular software there was a likelihood of the image or photograph in the My Shared Folder' being accessed by others then he would have a good defence to a charge under
Section 1(1)(c)
. And going back to the analogy of the club: it seems to me that if you join a computer club knowing that its purpose is to make material downloaded by you accessible to all members so that there is a likelihood of that material being accessed by other members as a result of your downloading it, then in those circumstances you download it 'with a view to' its being distributed or shown by you to other members.
I hope that ruling is clear. I think at the nub of it is the difference between 'with a view to' and 'with the intention of'."
13.
The judge drew a distinction between the words "with a view to" and the words "with the intention of". In our view, he was right to do so.
14.
Help for the meaning of the phrase (which has not, it appears, received much judicial attention) can be found in the 11th edition of Smith and Hogan's "Criminal Law", now edited by Professor Ormerod, page 807. There the meaning of the phrase "with a view to gain" in
section 21 of the Theft Act 1968
is briefly examined. It is stated that, whilst it is probably not necessary to show that the defendant's primary purpose in making a demand was to make a gain for himself or another, it must one of his objectives. We agree that it need only be one of his objectives. In a case like the present, another way of approaching the issue is to ask whether one of the defendant’s reasons for leaving the images in the “My Shared Folder” was to enable others to access it.
15.
Mr Mitchell submitted that the judge should have adopted this approach and decided that the defendant would only be guilty if one of his reasons for leaving the images in the “My Shared Folder” was to enable others to access the images in the Folder.
16.
Ms Drake for the respondent submitted, first of all, that, on the facts of this case, it was sufficient if the defendant had knowledge that the images may be seen by others. She then adopted the judge's approach: “Did the defendant know that the images were likely to be seen by others?” She then changed that to: “Did the defendant know that the images were very likely to be seen by others?” She ended up with: “Did the defendant know that it was
inevitable
that the images would be seen by others?” before returning to the judge's approach.
17.
In our judgment, although it may be very important to examine the defendant’s knowledge in the way in which the judge did, nonetheless the question which the jury will have to resolve is: “Was at least one of the reasons why the defendant left the images in the ‘My Shared Folder’ so that others could have access to the images in it?” If so he would be in possession of indecent photographs of a child with a view to their being distributed or shown by himself. One can envisage circumstances where a person foresees X as a likely consequence of doing Y, but does not do Y with a view to X. To take a far fetched example, a general may foresee the likelihood of his soldiers being killed in battle, but he surely does not send his troops into battle with a view to their being killed? We should add that it is not necessary in this judgment to refer to the debate about intention and foresight of virtual certainty (Smith and Hogan, pages 93 and ff).
18.
We have considered carefully whether the conviction is safe. In the light of the judge’s ruling about the necessary knowledge, the appellant (we would have expected) must have pleaded guilty on the basis that he knew that the images in the “My Shared Folder” were likely to be seen by other participants. If so, on the facts of this case, it would seem to follow that at least one of the reasons why the defendant left the images in the "My Shared Folder" would be to enable others to have access to them. Mr Mitchell assures us that he understood the ruling to mean that it was not necessary for the prosecution to show that a reason for leaving the images in the folder was to enable others to access them. He tells us that his case was that the appellant did not leave the images there for that reason and he did not assimilate what the judge had said about knowledge. In the light of that assurance, we must quash the conviction. No retrial is sought.