What is Downloading?

August 31, 2008

Technical issues of computer law rarely arise in the Criminal Division of the Court of Appeal but the recent ruling in R v Hammond [2008] EWCA Crim 1358 raises an unusual question. In Hammond the Court of Appeal was faced with a difficult question: how was it to stop an offender from contact with child pornography. The case raises the issue of what ‘downloading’ means and how best to phrase an order restricting use of the Internet for illegal purposes.

The offender had been convicted on five counts involving indecent photographs of children.  As a result of a police investigation of people who had viewed indecent images of children through a particular site on the internet, officers executed a search warrant at the offender’s home address and seized his computer and associated equipment. The computer and other equipment were analysed and the officers found a total of 25 indecent images of children. Despite initial denials, the offender pleaded guilty to the charges.
The offender, aged 57, had a number of previous convictions, including eight previous convictions for indecent exposure, three for taking indecent photographs of a child, one for indecent assault on a female and one for permitting indecent photographs of a child to be taken. The probation officer who compiled the report for the court on the offender expressed the view, not surprisingly, that there was a high risk of further offending but stated that the offender acknowledged that he needed help. In accordance with the probation officer’s recommendation, the judge imposed sentences of community orders with requirements of supervision for three years and attendance on a sex offender programme. In addition, the judge imposed an indefinite Sexual Offences Prevention Order (SOPO) pursuant to s 104 of the Sexual Offences Act 2003. He also ordered the appellant to pay some prosecution costs and the forfeiture of the images and computer equipment in question. Having been convicted of an offence listed in Sch 3 to the 2003 Act, the appellant was required to comply with the notification provisions of the Act for a period of five years (in common parlance, he was on the sex offenders’ register).

The terms of the SOPO gave rise to the appeal. The Order was to the effect that the appellant was: (i) not to purchase or download any evidence elimination software; (ii) not to have unsupervised access to any child under the age of 16; (iii) not to refuse a police officer access to any computer he owns or has access to whilst under the terms of the Sex Offenders Register; (iv) not to download any material from the internet save that applying to downloading for the purpose of any lawful employment or lawful study. Although points were taken about the length of the Order and width of the access provision, it is the term relating to downloading that raises the most interesting questions.

In the Court of Appeal, Forbes J thought the restriction on downloading was too wide and said (at [16]-[17]):
‘For example, currently expressed, the term would prevent the appellant from accessing the internet to order a train ticket or to book a holiday.  The purpose of a Sexual Offences Prevention Order is to do exactly what it says, namely the prevention of sexual offences of the type that the subject of that order has committed, and any term of the order must be both proportionate and designed to achieve that purpose. For it we would substitute the following term which will achieve the necessary protection against the risk of this appellant exploiting or otherwise using or accessing child pornography, namely this, that “he is not to download any photographs or pseudo photographs of any person under the age of 18”.’

What Does That Mean?

While the motives of everyone involved in the case are to be applauded (with exception of the offender obviously), the case does represent a precedent and may sow the seeds of confusion.

It is widely accepted that where an image or any other material is viewed on the Internet then that viewing is driven by the transfer of data to the viewer’s computer. In the widest sense, the data has been downloaded to the viewer’s machine. In many child pornography cases, even perhaps in Hammond’s case, the evidence has largely consisted of the forensic analysis of the defendant’s hard disk showing offending data having been viewed. And it may be that that was precisely the wide definition that the Crown Court had in mind with the original restricting order when focusing on the purpose of the Internet access. But it seems unlikely that that is what the Court of Appeal had in mind.

I congratulate the Court of Appeal on recognising just how central to life the Internet has become but I am not sure that Forbes J has grasped the complexities concerned. After all, one might very well find that a picture of a child might adorn the home page of a theatre or train ticket agency and so the stated reason for changing the terms might very well be undermined if the wider definition is applied. On the other hand, if the definition applied is closer to common usage, so that downloading is taken to mean deliberately opting to save a file to one’s computer, then what is to stop just viewing unlawful images or streaming porn.

With due respect to the Court of Appeal’s laudable efforts, the Crown Court focus on intention seems more soundly based. The issue may be one worthy of the attention of the Sentencing Guidelines Council or the Judicial Studies Board so that a standard form of words might be used. Most cases where a SOPO is used will include reference to Internet use and it needs to be clear, for the benefit of the enforcers of such orders and for the benefit of offenders too, what behaviour is prohibited and what is permitted.

What do SCL members suggest as a form of words to prohibit such behaviour? Let me know your views by e-mailing me at lseastham@aol.com.