O'Shea v City of Coventry Magistrates' Court & Anor

Computer-generated records made automatically from transactions are real evidence where their contents do not depend on information processed by a human mind. At the committal stage, matching personal, email and credit-card details may provide sufficient evidence for a jury to infer that the accused made the relevant entries, even though another person might have used those details. Incitement may also be established where a person uses an automated computer process to encourage the human operators behind a business to commit an offence or continue offending. The fact that the immediate mechanism is a computer, or that the business is conducted through a company, does not prevent the existence of a prima facie case of incitement.

The claimant sought judicial review of a district judge’s decision to commit him for trial on charges of inciting, and attempting to incite, the distribution of indecent photographs of children. The prosecution relied on computer records from an overseas website business, together with evidence linking the records to the claimant’s email address, address and credit card.

The claimant argued that the computer records were inadmissible hearsay, that the evidence did not sufficiently connect him with the records, and that an automated computer process could not amount to incitement because no human being was directly encouraged. The central issues were the admissibility and sufficiency of the evidence and whether the alleged conduct disclosed an offence.

1. Application refused. The court upheld the decision to commit the claimant for trial.
2. Following and applying R v Spiby (1990) 91 Cr App R 186, a computer printout is real evidence where the computer records transactions automatically and the relevant content does not depend on information passing through a human mind. The printout was relied upon to show what the computer recorded, rather than the truth of information supplied by a person. It was therefore admissible.
3. At committal proceedings the question was whether there was evidence capable of establishing a prima facie case. The claimant’s admitted email address and matching address and credit-card details were sufficient evidence from which a jury could infer that he had entered the information, notwithstanding the possibility that someone else might have used his details.
4. The ordinary meaning of incitement includes encouragement, persuasion or inducement, as explained in R v Goldman. The fact that the immediate process was wholly automated did not prevent a prima facie case. The business was operated by human beings, and the claimant’s subscriptions could be regarded as encouraging those behind the business to commit offences and to continue the supply and distribution of illegal material.
5. The argument that a company, or a computer acting as its mechanism, could not be incited was therefore rejected. The claim for judicial review was refused.

Permission to apply for judicial review was granted by a single judge. The Divisional Court of the High Court then refused the claim and upheld the district judge’s committal decision.