R v Bowden (1999)

In "R. v Bowden" [2000] 2 All ER 418 the English Court of Appeal dismissed an appeal against conviction on a point of law.

Making an indecent photograph of a child

Bowden had been convicted at the Crown Court in Cambridge on 12 counts of making an indecent photograph of a child contrary to section 1(1)(a) of the Protection of Children Act 1978.

Before being amended by the Criminal Justice and Public Order Act 1994, section 1(a) of the 1978 Act had read:

1.- (1) It is an offence for a person-
:(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16);

As amended it read:

1.- (1) It is an offence for a person-
:(a) to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child

The 1994 Act had added the concept of pseudo-photographs to the law.

Bowden submitted that the making offence applied only to pseudo-photographs.The prosecution submitted that it applied to photographs since the 1978 Act was concerned with the further dissemination of indecent photographs as well as their production.

It was accepted in the Bowden case that s.1(1)(a) of the 1978 Act covered those making pseudo-photographs who may have had no contact with the subjects of the images.

But it also covered those making copies of photographs by knowingly copying the photograph.

The wording in s.1 of the 1978 Act as amended was clear and unambiguous. The words "to make" had to be given their natural and ordinary meaning, and in the instant context that was "to cause to exist; to produce by action, to bring about".

In "R v Fellows & Arnold" (1997) 1 CAR 244, the Court of Appeal had held that a computer file containing data that represented the original photograph in another form was "a copy of a photograph" as per section 7(2) of the 1978 Act.

Therefore, downloading an indecent photograph from the Internet was "making a copy of an indecent photograph" since a copy of that photograph had been caused to exist on the computer to which it had been downloaded.

The implications of this judgement were extensive—not only did it confirm that those downloading indecent images from the Internet were breaking the law, it also meant that law enforcement officers committed the same offence when they made a copy of the contents of suspects' computer disks. This led to amendments to the Protection of Children Act by the Sexual Offences Act 2003 to create a statutory defence where it was necessary "to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings".

It also meant that those simply viewing Internet child pornography on their computer screens were committing the offence. In "R v Jayson" (CA, [2002] EWCA Crim 683) the Court of Appeal ruled that "the act of voluntarily downloading an indecent image from a web page on to a computer screen is an act of making a photograph or pseudo-photograph".