Dooley, R v

For possession of indecent photographs of a child with a view to their distribution or showing under section 1(1)(c) of the Protection of Children Act 1978, it is insufficient that the defendant knew that others were likely to obtain access to the images. Distribution or showing must be one of the defendant’s objectives. In a peer-to-peer file-sharing case, the jury must decide whether one reason for leaving images in a shared folder was to enable others to access them. Knowledge that access was likely may be important evidence, but it does not itself establish the required purpose.

The appellant pleaded guilty at Oxford Crown Court, before HHJ McIntyre, to six offences under section 1(1)(c) of the Protection of Children Act 1978. The images had been downloaded using KaZaA, a peer-to-peer network. Six images remained in his accessible shared folder for about ten days.

Before the plea, the judge ruled that the offence was made out if the appellant downloaded an image knowing that other network users were likely to see it, even if he specifically intended later to remove it from the shared folder. The appellant appealed against that construction. The central issue was the meaning of possession with a view to distribution or showing.

1. Appeal allowed. The conviction was quashed. No retrial was sought.
2. The trial judge correctly held that with a view to has a wider meaning than with the intention of. The statutory purpose need not be the defendant’s primary purpose. It must, however, be one of the defendant’s objectives.
3. For images held in an internet shared folder, the decisive question is whether at least one reason for leaving them there was to enable others to access them. If so, the defendant possesses the images with a view to their being distributed or shown by himself within section 1(1)(c) of the Protection of Children Act 1978.
4. The defendant’s knowledge that others were likely to access the images is relevant and may be important evidence. It is not a substitute for the required purpose. A person may foresee a likely consequence of conduct without acting with a view to that consequence.
5. The guilty plea appeared likely to have been entered on the basis of the judge’s erroneous knowledge-based ruling. Counsel stated that the appellant’s case had been that he did not leave the images in the folder to enable access by others. In light of that assurance, the court could not regard the conviction as safe.

• Court of Appeal (Criminal Division): allowed the appeal and quashed the convictions: [2005] EWCA Crim 3093.
• Crown Court at Oxford: following a pre-trial ruling by HHJ McIntyre on the meaning of with a view to, the appellant pleaded guilty on re-arraignment to six charges under section 1(1)(c) of the Protection of Children Act 1978.