Prosecuting internet sex offences under old laws

When Parliament was in the process of considering the Criminal Justice and Immigration bill in 2008, various interest and pressure groups lobbied in the hope that their particular concern or hobbyhorse would be considered for inclusion in the bill. Among them was Kent Constabulary, who expressed the concern that there appeared to be a lacuna in the existing law that needed to be filled by the new Act.

Their concern was that sex offenders were engaging in communication as individuals or in groups in online internet chatrooms, and were expressing their fantasies in conversations with others who shared their interests. These conversations were then being stored and exchanged or shared in the form of chatroom logs. These logs were created automatically by the computers used in this communication. Such activity is almost impossible to police, even if the subject is on the Sex Offender Register, and subject to monitoring by the multi-agency public protection arrangements team (MAPPA). This activity is conducted silently, and secretly behind closed doors.

Kent's concern was that this activity was potentially dangerous, feeding an interest in and an unhealthy and unnatural desire for inappropriate sexual contact with children.

They were unsuccessful on that occasion in attracting Parliament's attention to this concern, and the Act makes no mention of these matters, even though Parliament was busy creating new sexual offences of extreme pornography.

Obscene publications

Instead, undeterred, Kent Constabulary turned its attention to the existing law, to see if this new activity could fall under existing legal provisions, whether common law or statutory. They turned the spotlight on the Obscene Publications Act 1959 (OPA).

This Act has a chequered history, and has enjoyed very limited success. Older generations will recall the case of R v Penguin Books (the Lady Chatterley's Lover case) heard at the Central Criminal Court in 1961. That case has gone down in history for the brilliantly inappropriate direction given to the jury by His Honour Judge Mervyn Griffith-Jones the Common Sergeant asking: 'Was it the kind of book you would wish your wife or servants to read?'.

The same generation witnessed the high profile trial of R v Desmond in 1971 (the Oz schoolbook trial), and other equally fascinating examples of idiosyncratic criminal litigation involved the 'Little Red Schoolbook'.

The Obscene Publications Act was passed at a time in our social history when no-one had a home computer, no-one had a mobile phone, there was no internet, and electronic communication was by landline telephone. The Act did not contemplate a new generation of electronic communication, and therefore to use it to apply to modern methods of communication is an uncomfortable exercise.

However, to concerned agencies like the police, there is little practical alternative. The Act was amended by section 3 of Schedule 9 of the 1994 Criminal Justice and Public Order Act to include publication by electronic transmission of an article.

The OPA defines an article as obscene if taken as a whole it has the tendency to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read see or hear the matter contained or embodied in it.

The ruling in DPP v Whyte [1972] AC 849 upheld the principle that it was not sufficient for one person to be depraved or corrupted. There must be a significant number of people likely to read it who would become corrupted.

All this flies in the face of the recommendations and findings of Professor Bernard Williams in his committee's report to the Home Office in 1979. He recommended the abolition of all written material from ?pornography or obscenity classification

In a recent and on-going trial at Maidstone Crown Court, the defendant faced nine counts under the OPA. Each count represented a chatroom log that he had created on his computer, and communicated electronically via the send button to a person unknown. The defence argued in a legal submission that the OPA requires publication to be to persons plural, and therefore as the Crown were unable to prove that there had been publication to more than one individual, this activity was not caught by the Act.

Publication to several persons?

The submission was successful in that the trial judge HH Judge MacDonald QC ruled that the OPA did require publication to more than one person.

He went on to find that as the log was stored in such a private location, and that there was no real prospect of this material being accidentally communicated to anyone other than the single recipient of the chat, and that the subject matter or interest of these individuals was so obscure as to be unlikely to be stumbled upon accidentally or innocently.

That legal ruling was treated as a terminatory ruling. The Crown were given, and were entitled to 24 hours to consider whether they would appeal that terminatory ruling. This being a trial, and the defendant being in the jury's charge, an undertaking was given that a formal acquittal would be entered onto the court register if the Crown decided not to appeal, or were refused leave, or the appeal was dismissed or abandoned.

Lord Justice Richards sitting with Kenneth Parker J and Lindblom J in the criminal division of the Court of Appeal ruled on 9 February 2012 that the trial judge had erred in his legal ruling.

The Court of Appeal found that the Obscene Publications Act could apply to publication of material to a single recipient, and therefore sent the case back to the Crown Court for trial

The case was listed as R v GS (16 February 2012) CA. The hearing was scheduled to start on 9 July with a decision expected by the end of the week.