Harrison v R.

A computer user may make an indecent photograph of a child when an image is automatically copied to the computer's hard drive while the user browses the internet. The automatic programming of a website does not mean that only the website designer makes the copy.

Liability nevertheless requires a deliberate and intentional act with knowledge that the image is, or is likely to be, an indecent photograph of a child. Where copying is automatic, the prosecution must prove that the user knew that accessed images would be stored and knew that use of the relevant sites would, or was likely to, access illegal images. A possession conviction is not unsafe merely because separate making counts resulted in acquittals where those verdicts may reflect uncertainty about other elements, including age or indecency.

The appellant, a criminal solicitor, was convicted at the Crown Court at Taunton of possessing indecent photographs of a child found on his computer hard drive. He was acquitted of seven making counts and the judge directed acquittals on three further making counts. He was fined £400 and became subject to notification requirements for five years.

The prosecution alleged that the appellant knowingly accessed illegal images while browsing pornographic websites and knew that they were automatically stored on the hard drive. He denied knowing that this occurred and said that his son might have accessed some images. He also disputed that some images depicted persons under 16.

On appeal, he challenged the directions on making and possession in the context of pop-ups and redirections, and contended that the possession conviction was logically inconsistent with the acquittals on the making counts.

1. The appeal was dismissed. The court rejected the submission that, where an image appears through an automatic pop-up or redirection, the website designer rather than the computer user makes the resulting copy. That submission was inconsistent with the ordinary meaning of making and with R v Bowden [2001] QB 88. The relevant copy is made when the image is automatically placed on the user's hard drive.

2. The offence under section 1(1)(a) of the Protection of Children Act 1978 is not absolute. Applying R v Smith; R v Jayson [2002] EWCA Crim 683, the court held that making requires a deliberate and intentional act, coupled with knowledge that the image is, or is likely to be, an indecent photograph of a child. In an automatic-copying case, the jury must be sure that the defendant knew that images he accessed would be stored and that his use of the relevant sites would, or was likely to, access illegal images.

3. The judge's summing-up, read as a whole, adequately directed the jury on that latter distinction. There was sufficient evidence to permit them to find the requisite likelihood from the appellant's prior use of particular sites and the association of the possession images with those sites.

4. Possession under section 160 of the Criminal Justice Act 1988 may exist even if an illegal image was not deliberately saved. A defendant has possession if he knows, even briefly, that he has the image or knows that it remains on the computer hard drive. The required mental element is knowledge that he has, or once had, indecent photographs in his possession, following Atkins v Director of Public Prosecutions [2001] 1 WLR 1427.

5. The differing verdicts were not logically inconsistent. The jury's acquittals on the making counts did not necessarily show that they rejected the school records concerning the appellant's son. They could instead have been unsure whether particular images were indecent photographs of children. The possession verdict was therefore safe.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2007] EWCA Crim 2976.

• Crown Court at Taunton: on 8 November 2006, the appellant was convicted of possessing indecent photographs of a child, acquitted on seven making counts, and directed acquittals were entered on three further making counts.