R v. Fellows; R v. Arnold
Encyclopedia
R v. Fellows; R v. Arnold [1997] 1 Cr App R 244; [1997] 2 All E.R. 548, is a prominent English case on the statutory interpretation
of Section 1 of the Protection of Children’s Act
, 1978, and the Obscene Publications Act
of 1959, the definitions have since been amended by the Criminal Justice and Public Order Act
1994. The Court of Appeal
held that data on a computer that represents the original photograph is a copy of a photograph under the 1978 Act, therefore, downloading an indecent photograph from the internet
constitutes making a copy or reproduction of an indecent photograph.
s on his employer’s computer that enabled users to both display and print indecent pictures of children. These materials could also be accessed on the Internet, allowing others to view and duplicate these images. The extensive digital library, viewable on the Internet, encompassed numerous explicit images of children and was called The Archive. Only the users who were given a password
by Fellows, could access the archive. Fellows selected to whom a password was given on the basis of recommendations given by other users. Those people who provided similar data uploads to increase the archive were also rewarded with a password. The second appellant, Steven Arnold, was one such user who assisted in the overall growth of the archive.
At trial, Fellows was convicted on four offences of possessing indecent photographs of children
that could be displayed or distributed to others, contrary to 1 (1)(c) under the Children’s Act of 1978, which prohibits possessing such indecent photographs with the intention to have them distributed or shown. This was also in defiance of the Obscene Publications Act of 1959.
Arnold was convicted with three offences of distributing and showing indecent photographs of children, contrary to 1 (1)(b), which prohibits distributing or showing such indecent photographs.
The appellants appealed to the Court of Appeal. They also appealed against their convictions.
Both Fellows and Arnold were convicted of showing and distributing pornographic materials.
Their appeal was dismissed and their sentences remained. Fellows was sentenced to three years in prison
and Arnold was sentenced to six months in prison.
The current definition now includes data stored on a computer disc, or by other electronic means, which is then capable of being converted into a photograph (section 84 (3) (b)). The amended Act also introduced the idea of a “pseudo-photograph
”, which describes an image created by computer graphic software that can closely resemble a photograph (section 84 (3) (c)). The case also illustrates that technology develops and progresses faster than the law can keep up with it. The Court addressed this concern in the third aforementioned issue, by pointing out the possibility that when statutes are written by Parliament it is only based on what is currently known at that time. It does not necessarily mean that the statute is automatically outdated because of the coming of a new technology. The statute likely implies that it accommodates for new developments in technology. This is likely because most cybercrime
s are elaborations of traditional crimes, they are just merely labelled differently. This case also displays the wide scope of digital evidence and its application to traditional criminal offences.
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
of Section 1 of the Protection of Children’s Act
Protection of Children Act 1978
The Protection of Children Act 1978 is an Act of the Parliament of the United Kingdom.The Protection of Children Bill was put before Parliament as a Private Member's Bill by Cyril Townsend in the 1977-1978 session of Parliament....
, 1978, and the Obscene Publications Act
Obscene Publications Act 1959
The Obscene Publications Act 1959 is an Act of Parliament of the United Kingdom Parliament that significantly reformed the law related to obscenity. Prior to the passage of the Act, the law on publishing obscene materials was governed by the common law case of R v Hicklin, which had no exceptions...
of 1959, the definitions have since been amended by the Criminal Justice and Public Order Act
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...
1994. The Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
held that data on a computer that represents the original photograph is a copy of a photograph under the 1978 Act, therefore, downloading an indecent photograph from the internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
constitutes making a copy or reproduction of an indecent photograph.
Facts
The first appellant, Alban Fellows, had stored digital imageDigital image
A digital image is a numeric representation of a two-dimensional image. Depending on whether or not the image resolution is fixed, it may be of vector or raster type...
s on his employer’s computer that enabled users to both display and print indecent pictures of children. These materials could also be accessed on the Internet, allowing others to view and duplicate these images. The extensive digital library, viewable on the Internet, encompassed numerous explicit images of children and was called The Archive. Only the users who were given a password
Password
A password is a secret word or string of characters that is used for authentication, to prove identity or gain access to a resource . The password should be kept secret from those not allowed access....
by Fellows, could access the archive. Fellows selected to whom a password was given on the basis of recommendations given by other users. Those people who provided similar data uploads to increase the archive were also rewarded with a password. The second appellant, Steven Arnold, was one such user who assisted in the overall growth of the archive.
At trial, Fellows was convicted on four offences of possessing indecent photographs of children
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
that could be displayed or distributed to others, contrary to 1 (1)(c) under the Children’s Act of 1978, which prohibits possessing such indecent photographs with the intention to have them distributed or shown. This was also in defiance of the Obscene Publications Act of 1959.
Arnold was convicted with three offences of distributing and showing indecent photographs of children, contrary to 1 (1)(b), which prohibits distributing or showing such indecent photographs.
The appellants appealed to the Court of Appeal. They also appealed against their convictions.
Issues
- Whether the computer data in the archive was considered a photograph under section 1 of the 1978 Act.
- If it was not considered a photographPhotographA photograph is an image created by light falling on a light-sensitive surface, usually photographic film or an electronic imager such as a CCD or a CMOS chip. Most photographs are created using a camera, which uses a lens to focus the scene's visible wavelengths of light into a reproduction of...
, is the computer disk a copy? - Did the 1978 Act and 1959 Act, before they were amended in 1994, have a wider scope?
- Whether the computer data that was in Fellows possession was distributed, or shown, by being made available for downloading to other computer users.
Judgment
- The Court of Appeal judge accepted the trial judge’s findings that the computer data within the archive was considered a photograph for the purposes of section 1 of the 1978 Act. It was accepted that when the Act was passed such a technology was not accommodated for by Parliament, even so, it was still implied in the Act's scope. Evans LJ, pointed out that a photograph, both in 1978 and now, is “a picture or image which a person sees”, whether a print or with the assistance of technology. The Court held that a photograph in this instance was used according to the 1978 Act, and s 7 (4) extended this meaning. The argument was dismissed.
- Even though the computer disc is not itself a photograph, the court held that there is nothing in the Act which makes it implicit that the copy must be an actual physical photograph. The disc represented the original photograph, albeit in a different form. The argument was dismissed.
- The Court of Appeal struggled with the issue of statutory interpretation, specifically, whether the 1978 and 1959 Act, before amended in 1994, had a wider scope. The Court held that when the statuteStatuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
was created it was written for what was known at the time to Parliament, advancement in technology cannot be viewed as a restriction on the scope of the definition. The definition was constructed to allow for future technological developments. The argument was dismissed. - The Court pointed out that the computer data that Fellow possessed was in fact distributed or shown. Evans LJ, stated that Fellows “ not only stored the data on his computer but also made it available worldwide to other computers via the internet. He corresponded by emailEmailElectronic mail, commonly known as email or e-mail, is a method of exchanging digital messages from an author to one or more recipients. Modern email operates across the Internet or other computer networks. Some early email systems required that the author and the recipient both be online at the...
with those who sought to have access to it, and he imposed certain conditions before they were admitted to do so. He gave them permission by giving them a password. He did this with the sole purpose of allowing others as well as himself, to view exact reproductions of the photographs stored in his archive.” The Court held that the computer users downloaded the same visual reproduction that is in Fellows possession. The arguments were dismissed.
Both Fellows and Arnold were convicted of showing and distributing pornographic materials.
Their appeal was dismissed and their sentences remained. Fellows was sentenced to three years in prison
Prison
A prison is a place in which people are physically confined and, usually, deprived of a range of personal freedoms. Imprisonment or incarceration is a legal penalty that may be imposed by the state for the commission of a crime...
and Arnold was sentenced to six months in prison.
Significance
This case is regarded as a landmark case concerning the distribution of pornographic materials. It is also the first case of its kind that pre-dated the amendments by the 1994 Criminal Justice and Public Order Act. Another implication this trial had was that the Children’s Act of 1978 has been amended by section 84 of the Criminal Justice and Public Order Act 1994, such that the definition of a photograph has been expanded.The current definition now includes data stored on a computer disc, or by other electronic means, which is then capable of being converted into a photograph (section 84 (3) (b)). The amended Act also introduced the idea of a “pseudo-photograph
Pseudo-photograph
A pseudo-photograph is "an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph".Although the term pseudo-photograph can be applied regardless of what it depicts, in law its meaning is especially relevant regarding child pornography.In the UK, the...
”, which describes an image created by computer graphic software that can closely resemble a photograph (section 84 (3) (c)). The case also illustrates that technology develops and progresses faster than the law can keep up with it. The Court addressed this concern in the third aforementioned issue, by pointing out the possibility that when statutes are written by Parliament it is only based on what is currently known at that time. It does not necessarily mean that the statute is automatically outdated because of the coming of a new technology. The statute likely implies that it accommodates for new developments in technology. This is likely because most cybercrime
CyberCrime
CyberCrime was an innovative, weekly America television program on TechTV that focused on the dangers facing computer users. Filmed in San Francisco, California, the show was hosted by Alex Wellen and Jennifer London...
s are elaborations of traditional crimes, they are just merely labelled differently. This case also displays the wide scope of digital evidence and its application to traditional criminal offences.
External links
- Criminal Justice and Public Order Act, 1994, c.33. (http://www.legislation.gov.uk/ukpga/1994/33/contents)
- Obscene Publications Act, 1959, 7 & 8 Eliz.2, c.66. (http://www.legislation.gov.uk/ukpga/1959/66/pdfs/ukpga_19590066_en.pdf)
- Protection of Children’s Act, 1978, c. 37. (http://www.inquisition21.com/pca_1978/reference/pca_1978unam.html)
- R v. Fellows; R v. Arnold Judgment Only [1997] 1 Cr App R 244 (http://oxcheps.new.ox.ac.uk/casebook/Resources/RVFELL_1%20DOC.pdf)