According to the Court of Appeal’s
Judgment in the recent case of R v GS [2012] private one to one text chat on
the internet can be subject to the Obscene Publications Act 1959 (OPA).
This
means that anyone using the internet to discuss sexual fantasies may be at risk
of committing a criminal offence.
Prior to this judgment it was presumed
that the OPA did not apply to one to one conversations between individuals.
This position was clearly overturned by paragraph 21 of Lord Justice Richards’
lead Judgment wherein it was stated that:
“In our judgment, to publish an article
to an individual is plainly to publish it within the meaning of the Act.”
It must be noted that the content of the
chat logs in question pertained to “explicit conversation
concerning incestuous, sadistic paedophile sex acts on young and very young children.
It was accepted that what was discussed was fantasy and not a reference to real
events”.
However, whilst the content of the
conversations were paedophile fantasies, the Judgment itself potentially
extends the OPA to all sexual fantasies that might “deprave and corrupt”.
The Crown Prosecution Service’s
Guidelines state that:
“It is impossible to define all types of
activity which may be suitable for prosecution. The following is not an
exhaustive list but indicates the categories of material most commonly
prosecuted: sexual act
with an animal; realistic portrayals of rape;
sadomasochistic material which goes
beyond trifling and transient infliction of injury; torture with instruments;
bondage (especially where gags are used
with no apparent means of withdrawing consent); dismemberment or graphic mutilation;
activities involving
perversion or degradation (such as drinking urine, urination or vomiting on to
the body, or excretion or use of excreta); fisting.”
It is
noteworthy that, of the CPS’ list, animals cannot consent at law; there are no
definitions of what “torture with instruments,” “graphic mutilation” or “realistic portrayal” of rape are; and
urination and fisting are activities which are legal to perform in real-life.
Furthermore
these guidelines have not been revised since R v Peacock [2012] where the jury
seemed to acquit the defendant on the basis that they did not find that male on
male urination and fisting were likely to deprave and corrupt.
However, the most significant
consequence of the Judgment in R v GS is that these activities do not need to
be represented pictorially, for example by a photograph, but merely in the form
of text or words.
Therefore a person using the internet
to privately discuss intimate sexual fantasies with other individuals regarding
activities which are legal to perform in real-life such as fisting, may find
themselves subject to criminal charges.
The Judgment, dated the 9th February
2012, is set out below in full; having only been edited to remove Counsel’s
remarks regarding retrial and reporting restrictions:
---
Neutral Citation Number: [2012] EWCA
Crim 398
No: 201106555/B5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand London, WC2A 2LL
Thursday, 9th February 2012
B e f o r e:
LORD JUSTICE RICHARDS
MR JUSTICE KENNETH PARKER
MR JUSTICE LINDBLOM
REGINA
v
GS
PROSECUTION APPLICATION SECTION 58
CRIMINAL JUSTICE ACT 2003
Computer Aided Transcript of the
Stenograph Notes of WordWave International Limited A Merrill Communications
Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831
8838 (Official Shorthand Writers to the Court)
Mr G Pons appeared on behalf of the Applicant
Mr D Smith appeared on behalf of the Respondent
JUDGMENT (As approved by the Court)
Crown copyright©
1. LORD
JUSTICE RICHARDS: This is an appeal by the prosecution, under section 58 of the
Criminal Justice Act 2003, against a terminating ruling. The application for
leave to appeal was referred to the court by the Registrar. We granted leave at
the start of the hearing.
2. The
defendant in the case, the respondent to this appeal, faced trial at Maidstone
Crown Court on an indictment containing nine counts of publishing an obscene
article contrary to section 2(1) of the Obscene Publications Act 1959
("the 1959 Act"). The charges resulted from examination of the
defendant's computer following its seizure at his home. On it were nine chat
logs recording an explicit conversation concerning incestuous, sadistic
paedophile sex acts on young and very young children. It was accepted that what
was discussed was fantasy and not a reference to real events but it was the
prosecution case that the material was obscene.
3. There
was evidence that the chat logs were exact records of the Internet relay chat
in which the defendant had been engaged. Internet relay chat is a form of
instant communication via the Internet either between a group or, as in this
case, in a one-to-one context. The chat logs were not themselves published -
that is common ground - but they were relied on as evidence of the comments
that the defendant had typed and transmitted to the other party to the chat,
and it was alleged that by so transmitting them the defendant had published
them. The identity of the other party was not known and there was no evidence
that the material was shared beyond the defendant and that other party.
4. At
the close of the prosecution case there was a defence submission of no case to
answer. The judge, His Honour Judge MacDonald QC, rejected defence submissions
that there was no evidence on which the jury could find that the material had a
tendency to deprave and corrupt, and a related submission, in respect of two of
the counts, that the evidence was of no more than mildly offensive remarks. But
he upheld the defence submission that publication to one person was not an
offence unless that person could reasonably be expected to publish onwards,
which had not been shown in this case. He likened the present case to that of
two people sitting otherwise alone together in an ordinary physical room, not
overheard, sharing these fantasies. He said it was revolting but not a crime.
5. The
prosecution submit that the judge was wrong so to rule and that on the evidence
before the Crown Court there was a case to go to the jury. It is common ground
that the conditions for an appeal against the judge's ruling, which had the
effect of concluding the proceedings against the defendant, are met.
The Statutory Provisions
6. Section
2(1) of the 1959 Act provides:
"(1)Subject as hereinafter
provided, any person who, whether for gain or not, publishes an obscene article
or who has an obscene article for publication for gain (whether gain to himself
or gain to another) shall be liable—
(b)on conviction on indictment to a
fine or to imprisonment for a term not exceeding three years or both."
7. Relevant
definitions are to be found in section 1, as amended, which provides so far as
material as follows:
"(1)For the purposes of this Act
an article shall be deemed to be obscene if its effect or (where the article
comprises two or more distinct items) the effect of any one of its items is, if
taken as a whole, such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.
(2)In this Act 'article' means any
description of article containing or embodying matter to be read or looked at
or both, any sound record, and any film or other record of a picture or
pictures.
(3)For the purposes of this Act a
person publishes an article who—
(a)distributes, circulates, sells, lets
on hire, gives, or lends it, or who offers it for sale or for letting on hire;
or.
(b)in the case of an article containing
or embodying matter to be looked at or a record, shows, plays or projects it
or, where the matter is data stored electronically, transmits that data."
8. In
this case the act of publication relied on for each count was the transmission
of electronic data within section 1(3)(b). The article in each case was the
comment or statement transmitted, as evidenced by the chat log. As to
obscenity, it was contended that the comments taken together had a tendency to
deprave and corrupt the person to whom they were sent, being a person likely to
read them.
9. The
other provision of the 1959 Act we should mention is section 2(6) which
provides:
"In any proceedings against a
person under this section the question whether an article is obscene shall be
determined without regard to any publication by another person unless it could
reasonably have been expected that the publication by the other person would
follow from publication by the person charged."
In addition to those provisions of the
1959 Act reference has been made in the submissions before us to section 6(c)
of the Interpretation Act 1978 which provides:
"In any Act, unless the contrary
intention appears, words in the singular include the plural and words in the
plural include the singular."
Relevant Authorities
10. In R v Barker (1962) 46 Cr App R
227, the appellant was charged with having published obscene photographs to
four named persons who had corresponded with him and sent him money and
received in return the allegedly obscene photographs. Ashworth J, giving the
judgment of the court, stated as follows at pages 230 to 231:
"The forms of publication included
in the definition in section 1(3)(a) fall into three distinct groups: in one
group, comprising the words 'sells, lets on hire, gives or lends,' publication
is to an individual; in the second group, comprising the words 'distributes,
circulates,' publication is on a wider scale, involving more than one person;
in the third group a mere offer for sale or letting on hire constitutes
publication.
In a case falling within the first group
the first issue for the jury (assuming the publication is admitted) is whether
the effect of the article is such as to tend to deprave and corrupt the
individual to whom it is published. The second issue is whether any other
person or persons were likely to see the article. In this connection the issue
is not whether republication has or has not taken place, but whether it could
reasonably have been expected. If the answer to the second issue is 'Yes,' a
third issue will arise, namely, whether the article is such as to tend to
deprave and corrupt the person or persons to whom republication could
reasonably have been expected.
In considering the first of these
issues, a jury should obviously take into account the article itself, and, in
addition they should have regard to the age and occupation of the person to
whom the article is published, if such age and occupation is proved in
evidence. Similarly, the age and occupation of that person are relevant factors
in regard to the second issue, whether republication could reasonably be
expected. But they are not the only relevant factors. If, as in the present
case, there is evidence to prove that the person to whom the article was
published by the accused kept it locked up, this is a relevant factor, though not
by any means conclusive. It may well happen that a person who has obtained an
obscene article keeps it under lock and key, but nonetheless 'could reasonably
have been expected' to show it to others as opportunity arose. In regard to the
third issue similar considerations to those involved in the first are
applicable ..."
11. Ashworth
J went on to note that the charges in the case before the court were all within
the first group, involving sales to named individuals. The court held that the
Recorder's directions to the jury had failed to reflect the general principles
set out in the judgment in relation to that group and the appellant's
conviction was quashed. Among other things, the Recorder directed the jury that
the fact that the recipient only looked at the photographs himself and locked
them up so that nobody could see them was unimportant. Although the judgment
did not spell this out, it is evident that this was a misdirection because if
the photographs were likely to be seen only by the recipient, the jury would
have had to consider the effect on him alone, not on other people, in deciding
whether they had a tendency to deprave and corrupt.
12. Barker
was applied in R v Clayton and Halsey [1963] 1 QB 163, a case in which there
had been publication by way of sale to two police officers. Convictions were
quashed on the basis in effect that there was no evidence that the officers
were susceptible to any degrading or corrupting influence from the articles
sold to them.
13. DPP
v Whyte [1972] AC 849, concerned book sellers who were charged with having
obscene articles, namely books and a magazine for publication for gain. The
justices found that the significant proportion of future recipients of the
articles were going to be the hardcore of regular customers of the book shop
whose morals were already in a state of depravity and corruption and that there
was a grave doubt whether such minds could be said to be open to any immoral
influences which the articles were capable of exerting. The justices
accordingly dismissed the informations. The prosecutor's appeal was dismissed
by the Divisional Court but a further appeal was allowed by a majority of the
House of Lords. As the headnote to the report summarises it, the House of Lords
found that to state as a proposition that all the men in question had been
incapable of being depraved and corrupted because they were addicts was not a
finding of fact but an assumption contrary to the whole basis of the 1959 Act.
The Act was not merely concerned with the once for all corruption of the wholly
innocent but equally protected the less innocent from further corruption and
the addict from feeding or increasing his corruption. The words "deprave
and corrupt" in section 1(1) referred primarily to the effect on the mind,
including the emotions, of the persons who read or saw it, and that the
justices having found as a fact that the articles were capable of corrupting
and that the men in question had been depraved and corrupted by them, the book
seller should have been convicted.
14. That
is the context in which Lord Pearson made the following observations on which
reliance has been placed in argument. We quote from pages 864G - 865E:
"A third point to be noticed in
the statutory definition [obscenity] is that there is no requirement as to the
number of persons, or as to the proportion of its readers, which the article
will tend to corrupt and deprave. The word 'persons' is plural, but it may
include the singular. I think in some cases the rule de minimis non curat lex
would suitably be applied. In Reg v Calder v Boyars Ltd [1969] 1 QB 151
it appears from p 155 that:
'30 defence witnesses gave evidence to
the effect that the tendency of the book was not to deprave and corrupt but the
reverse; that it gave a graphic, compassionate and condemnatory description of
the depths of depravity and degradation in which life was lived in Brooklyn,
and that the only effect it would produce on any but a minute lunatic fringe of
readers would be horror, revulsion and pity;...'
The judgment of the court, delivered by
Salmon LJ, contains this sentence, at p 168:
'This court is of the opinion that the
jury should have been directed to consider whether the effect of the book was
to tend deprave and corrupt a significant proportion of those persons likely to
read it.'
That would indeed have been a suitable
direction in that case because, on a favourable view, the book could have been
regarded as tragic and pathetic rather than pornographic and, if the readers of
the book likely to be corrupted by it were only 'a minute lunatic fringe'
rather than a significant proportion, the book could not fairly be regarded as
obscene. The 'minute lunatic fringe' would be negligible. But I do not think
the phrase 'significant proportion' can safely be transplanted to cases of a
different character. There is the danger, for instance, of leading a book
seller to believe that, so long as he sells a comparatively large number of
copies of a pornographic book to persons not likely to be corrupted by it, he
can with impunity sell a comparatively small number of copies to persons who
are likely to be corrupted by it. In such a case, if the comparative small
number of copies is not so small as to be negligible, the statutory definition should
be applied according to its terms: the book's effect, taken as a whole, is such
as to tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read it. 'Persons' means some persons. Cockburn CJ,
in Reg v Hicklin L R 3 QB 360 did not suggest any requirement as to the
number of persons, or as to the proportion of its readers, which a book might
tend to deprave and corrupt."
15. We
should also note that at pages 874H to 875A Lord Salmon, referring to Barker
and to Clayton and Halsey, observed that the only counts in those cases charged
the defendants with publication by selling to a named person and that
“obviously the only question for the jury to consider on these counts was
whether the article tended to deprave and corrupt the named individual to whom
it was sold”. Lord Salmon was in the minority on the main issue in the appeal
but that does not affect what he said on this particular point.
The Judge's Ruling
16. The
defence argument as advanced before the judge below was that the definition of
"obscene" requires that the material should tend to deprave and
corrupt persons (in the plural). It was submitted that the normal rule under
section 6(c) of the Interpretation Act, that the plural includes the singular,
does not apply here because the context otherwise requires. It was said to be
unclear what Lord Pearson meant in the passage we have quoted from DPP v Whyte,
where he said that the word "persons" is plural but it may include
the singular; but what was said does not fit with the immediately following
passage, where he refers to the de minimis rule and suggests that for
there to be an offence there must be a more than negligible number of copies
sold to persons who are likely to be corrupted, and where he says in terms that
persons means “some persons”. From the passage as a whole he cannot have meant
that a tendency to deprave and corrupt one person is enough. Reliance was also
placed on section 2(6) as being indicative that if a defendant publishes to one
person, there can be no offence unless that person can reasonably be expected
to publish onwards.
17. The
judge accepted the defence submissions. In expressing agreement with the
defence he said that he was reaching that conclusion because of the point made
on section 2(6). He also read the judgment of Ashworth J in Barker as meaning
that even in the case of publication to an individual it is necessary to decide
whether any person or persons other than that individual were likely to see the
article. He noted, too, the references to persons in the plural in the speech
of Lord Pearson in DPP v Whyte and to readers in the plural in the speech of
Lord Wilberforce in the same case (in a passage we have not quoted). The judge
rejected as vanishingly unlikely the possibility of someone coming across these
logs accidentally or looking at the recipient's computer screen while he was
engaged in Internet chat with the defendant.
18. So,
it is apparent that the decisive feature for the judge was that there was
publication only to one individual and that that was not enough to give rise to
an offence. We have referred already to his graphic analogy with a private
conversation between two persons in a physical room.
The submissions before this court
19. In
written submissions Mr Pons, on behalf of the prosecution, has advanced various
arguments to the effect that the judge was wrong in his ruling. The submissions
so made are reflected in the conclusions which we will express in a moment and
it is unnecessary for us to set them out separately.
20. Mr
Daniel Smith, for the defendant, has advanced robust submissions in an attempt
to support the judge's ruling. He submits that the activity here in question
does not fit comfortably within the provisions of the 1959 Act. It was not an
activity of a kind within the contemplation of those enacting the provisions.
He says that ample opportunity to cover the activities specifically has been
afforded to Parliament but Parliament has not taken that opportunity despite requests
that it should. The submission made is that the act of transmitting comments by
way of Internet relay chat to an individual, as opposed to a group, is not an
act of publication for the purposes of the Act. Mr Smith likens it to a private
conversation between just two people, whether in a physical room, as mentioned
by the judge, or by telephone, and he submits that such a situation is not
caught by the Act. Equally, he submits, transmission of data by Internet
between just two people is not caught. He says further that the subject matter
of the Internet chat in this case represents such a bizarre and specialist
interest that it is highly unlikely that an ordinary member of the public would
come across it. Therefore, no question arises of likelihood of a wider
readership.
Discussion and Conclusions
21. We
have no doubt that the judge was wrong to rule as he did. It seems to us that
he confused the separate questions of publication and obscenity and he reached
an erroneous conclusion that publication to an individual could not give rise
to an offence under section 2(1) of the 1959 Act. In our judgment, to publish
an article to an individual is plainly to publish it within the meaning of the
Act. That is clear from the list in section 1(3) of the forms that the
publication may take. There is nothing in that subsection to support the view
that publication has to be to more than one person before it can constitute
publication for the purposes of the Act. On the contrary, as the court held in
Barker, one of the three groups into which the forms of publication in section
1(3) fall is publication to an individual. One sees that same thread of
reasoning run through Clayton and Halsey and the observation we have quoted
from Lord Salmon's speech in DPP v Whyte. They are not the only instances in
the case law but we do not need to cast the net wider. The reference to
"persons" (in the plural) in the definition of obscenity in section
1(1) has no relevance at this stage of the analysis but is a point to which we
will return.
22. Accordingly,
by transmitting comments to another person in the context of Internet relay
chat, the defendant was publishing those comments. It was an act of publication
falling within section 1(3)(b). It was not necessary for the defendant to
transmit the comments to more than one person before the act could be caught by
the statute. The fact that the identity of the recipient is not known is also
irrelevant.
23. The
next and distinct question is whether the comments so published were obscene.
For that purpose one has to ask, in the terms of 1(1), whether their effect was
such as to tend to deprave and corrupt persons who were likely, having regard
to all relevant circumstances, to read them. It is self evident that the person
to whom the comments were transmitted was likely to read them, and it was
therefore necessary for the prosecution to prove that the effect of the
comments was such as to tend to deprave and corrupt that person. That is a
straightforward application of the reasoning in Barker and in Clayton and
Halsey, and as Lord Salmon said in DPP v Whyte. In those cases the charge was
of publication by selling to a named person and the only question for the jury to
consider was whether the article tended to deprave and corrupt the named
individual to whom it had been sold. Here the charges did not specify a named
recipient but the principle is the same, since the supporting evidence did not
go beyond transmission of the article to the other party to the Internet relay
chat. It is therefore the effect on that other party that needs to be
considered.
24. There
may be cases where, although publication is to an individual, other persons are
likely to read the article so published. If that is so, then the effect on
those other persons will also fall to be considered. There may be cases where
after the initial publication there is onward publication to other persons, but
the effect on those other persons will only fall to be considered if it could
reasonably have been expected that such onward publication would follow from
the initial publication. That is the situation at which section 2(6) is
directed and the limitation that the subsection imposes. But the fact that we
are not concerned in this case with other likely readers, apart from the party
to the Internet relay chat to whom the comments were transmitted, does not
begin to show that those comments fall outside the definition of obscenity.
25. Lord
Pearson's speech in DPP v Whyte was concerned with the different point whether,
in a case where there are likely to be multiple readers of an article, it makes
a difference that only a small proportion of them are liable to be depraved and
corrupted by the article. The one element in his speech which is relevant for
present purposes is his observation that the word "persons" in
section 1(1) is in the plural but may include the singular. That in itself is a
straightforward reflection of the effect of section 6(c) of the Interpretation
Act 1978. As it seems to us, there is no contextual reason for reading the plural
in section 1(1) otherwise than as including the singular, and Lord Pearson
evidently did not think that there was. Nor do the other cases that we have
cited support the view that "persons" was intended to apply only in
the plural and not also to include the singular. Any difficulties that might
arise in the application of the reasoning of Lord Pearson, in the more extended
passage that we have quoted, to a case where there are likely to be multiple
readers of an article are of no materiality for the straightforward situation
with which we are faced here of a single recipient.
26. Thus,
it cannot be said that because there is only one recipient and only one likely
reader of an article, the article is incapable of meeting the test of obscenity
for the purposes of the Act. It would be extraordinary if it were otherwise.
There could be no sensible reason for the legislature having excluded otherwise
obscene material from the scope of the legislation, merely because it was
likely to be read by, and therefore liable to deprave and corrupt, only one
person, a person who might, for example, be a young child.
27. In
the present case, as the judge effectively accepted in a part of his ruling
that is not challenged, there was a case fit to go to the jury that the
material in question had a tendency to deprave and corrupt the recipient, even
if that person was of similar mind to the defendant and even if he was an
addict feeding his addiction. The whole tenor of the decision in DPP v Whyte is
against any finding that because the recipient is already depraved and
corrupted the material cannot have a tendency to deprave and corrupt him.
28. For
those reasons we are satisfied that the prosecution appeal is well-founded and
that the judge's ruling that there was no case to answer was wrong in law. We
will allow the appeal, reverse the ruling and, subject to any further
submissions, will order that a fresh trial may take place in the Crown Court on
each of the relevant counts, on the basis that it is in the interests of
justice for there to be a fresh trial. We will also hear submissions on the
matter of reporting restrictions. On the face of it, having regard to the general
nature of the matters covered in this judgment, it should be sufficient for
there to be a restriction on reporting that identifies or is liable to identify
the defendant but otherwise no restriction is required.
