GS, R. v

Transmission of electronic data to one person can amount to publication under the Obscene Publications Act 1959. The statutory concept of publication does not require dissemination to more than one recipient.

For obscenity, the tribunal must consider the effect of the material on persons likely to read it. A sole recipient is such a person. The plural reference to persons includes the singular, so material may be obscene even if it is likely to be read by only one person. The recipient's existing depravity or addiction does not prevent material from tending to deprave and corrupt that recipient.

The prosecution appealed under section 58 of the Criminal Justice Act 2003 against a terminating ruling at Maidstone Crown Court. GS faced nine counts of publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959.

The prosecution relied on chat logs recovered from the defendant's computer. They recorded explicit online conversations concerning sexual abuse of children. The messages had been transmitted to one unidentified participant in an internet relay chat, with no evidence of wider dissemination. The trial judge ruled that publication to one person could not found an offence unless onward publication could reasonably be expected. The central issue was whether a single electronic transmission could constitute publication and whether one likely reader could satisfy the statutory obscenity test.

1. Appeal allowed. The judge's terminating ruling was wrong in law. The court reversed it and ordered that a fresh trial may take place in the Crown Court on the relevant counts because a prosecution was plainly in the public interest and there was no reason to doubt the defendant's ability to receive a fair trial.

2. The judge had confused the distinct questions of publication and obscenity. Under section 1(3) of the Obscene Publications Act 1959, publication includes transmission of electronically stored data. Transmission of chat messages to one other participant was therefore publication within section 1(3)(b). Neither the statutory language nor the authorities imposed a requirement that the material be sent to more than one person.

3. This construction followed R v Barker (1962) 46 Cr App R 227. That case recognised publication to an individual as one of the statutory forms of publication. R v Clayton and Halsey [1963] 1 QB 163 and Lord Salmon's observations in DPP v Whyte [1972] AC 849 likewise showed that, where material is supplied to a named individual, the relevant obscenity inquiry includes its effect on that individual.

4. For the separate question of obscenity under section 1(1), the recipient was plainly likely to read the messages. The prosecution therefore had to show that the material tended to deprave and corrupt that recipient. Section 6(c) of the Interpretation Act 1978 meant that the plural word “persons” included the singular; nothing in the statutory context displaced that rule.

5. Section 2(6) did not qualify the initial transmission to a sole recipient. It governed only the relevance of effects on further recipients following an onward publication which could reasonably have been expected. It did not make onward publication a condition of the offence.

6. There was a case fit for the jury on tendency to deprave and corrupt. Following the reasoning in DPP v Whyte [1972] AC 849, a recipient's similar disposition or existing addiction did not prevent the material from having that tendency. The statutory reporting restriction was lifted save for an anonymity restriction protecting the defendant's identity.

• Court of Appeal (Criminal Division): Allowed the prosecution appeal under section 58 of the Criminal Justice Act 2003, reversed the terminating ruling, and ordered that a fresh trial may take place: [2012] EWCA Crim 398.
• Crown Court at Maidstone: Upheld a submission of no case to answer on the basis that publication to one person was insufficient without expected onward publication. That ruling was reversed.