Accordingly, we convicted the defendant of possessing prohibited images of children contrary to s.56 of the Coroners and Justice Act 2010 and sentenced him to 6 months imprisonment for this offence.
QUESTION
The question for the opinion of the High Court is
On the stated facts
1. Did the defendant’s hard drive contain an image of a “child” as defined by s.59?
2. If so, was that image a prohibited image for the purposes of s.56?
3. If so, did the defendant have “ a legitimate reason for being in possession of the image” within the meaning of s.58?
Dated the 10th day of August 2010.
Queen’s Bench Divisional Court
January 2nd 2010
Before: Lord Justice Hooper
Between: Regina, Respondent AND Brandon Fitzanglia, Appellant.
Lord Justice Hooper
This appeal has been brought before this court on case from the Norwich Magistrate’s Court. The appellant has been convicted of possessing prohibited images of children, breaching s.56 of the Coroners and Justice Act, of which subsection 1 highlights the main purpose of the Act:
s.56 Possession of prohibited images of children
It is an offence for a person to be in possession of a prohibited image of a child.
The facts of the case provided by the Magistrate’s Court in Norwich are as follows. In August 2010 the appellant’s laptop was examined by an IT specialist, who found a video composed of a series of cartoons displaying figures designed on animated members of a television series, “The Simpsons”. Three of those figures representing the children were depicted as performing sexual acts upon themselves in the presence of their parents. All of these figures had adult human genitalia. The appellant, Brandon Fitzanglia created this video as a joke, for the purpose of entertaining his friends. The defendant did not provide a defence due to failing to have established a legitimate reason for having these images relevant to s.58. He was convicted of possessing prohibited images of children contrary to s.56 of the Coroners and Justice Act 2010 and was sentenced to 6 months imprisonment.
The question for the opinion of the High Court, on the stated facts is whether the defendant’s hard drive contained an image of a “child” as defined by s.59.
In order to decide whether the case in question involves images of a “child” the statutory interpretation of the section must be looked at verbatim. In subsection (5) it is stated that the word “child” refers to any person ‘under the age of 18’. Three members of the animated TV series (Bart, Lisa and Maggie) are known to be of ages 10, 8 and 1, thus it is indisputable that they fall under this description. Furthermore, subsection (6) of s.59 supports that the images possessed by the defendant were of children:
(6) Where an image shows a person the image is to be treated as an image of a child if –
(a) the impression conveyed by the image is that the person shown is a child, or
(b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.
Both subsections sustain that the images from the video where those of children, as by deductively reasoning, the three members in the TV series represent children and the defendant must have been aware of this. The child figures in the video appeared to have adult genitalia, however this is not a sufficient reason to assume they are not ‘children’ as within the meaning of subsection (6)(b).
One other question that comes to mind is whether a ‘child’ can be a fictitious character.
s.59 provides:
(8) References to an image of a child include references to an image of an imaginary child.
It is worth considering what ‘imaginary’ constitutes for. Does it require the child to have any specific characteristics? Would an animal with a human characteristic be regarded to as a ‘child’? Is an animated TV series character a human being, and thus a ‘child’ if of appropriate age, or is it undefinable? It is debatable what qualities – apart from age – a ‘child’ should display. I understand that it is difficult to diagnose what the Parliament’s intention was in regards to the definition of ‘imaginary’, thus I must base my judgement on good reasoning. I find that the cartoons of Bart, Lisa and Maggie are not sufficiently life-life, and I do not consider them non-photographic images of children. I thereby hold that even an ‘imaginary’ child must be a human being, not a character created for the purposes of a TV series. Consequently, I find that the defendant’s hard drive did not contain an image of a ‘child’ as defined by s. 59 of the Coroners and Justice Act 2010.
Subsequent to the Magistrates’ Court’s first question, I can now address the second issue, which is, whether the images possessed by the defendant are images prohibited according to s. 56. As s.56 refers to the ‘Possession of prohibited images of children’, I see no reason in examining this section thouroughly in relevance to the defendant’s conviction, as it has already been established that the images contained by his hard drive were not, of ‘children’. However, ex concessis, to clarify and support the appellant’s contention that he does not have an offence under s.56, I see it useful for some significant points to be outlined.
A prohibited image is an image which –
(a)is pornographic
(c)is grossly offensive, disgusting or otherwise of an obscene character.
Firstly, whether or not the image is ‘grossly offensive’ or ‘disgusting’, it is more the viewer’s decision, as people have different ideas of these definitions – some may find the video created by the defendant funny, as it was its purpose to ‘entertain’. Secondly, it is worth considering what ‘pornographic’ stands for. Subsection (3) states that; “an image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.” So, is the video, that the defendant created, ‘pornographic’, if he created it “as a joke to entertain his friends” ?
In this point of law, not only do I not find the defendant guilty of breeching s.56 of the Coroners and Justice Act, but I also find this case quite minor in comparison with cases such as Atkins v DPP or R v Jonathan Bowden, where the images possessed were de facto, of ‘real’ children and for ‘personal use’ of the owner of those images, possibly for sexual arousal within the meaning of s.56.
Lastly, coming to the third point in question – does the defendant have “a legitimate reason fo being in possession of the image” within the meaning of s.58? In Atkins v DPP, Lord Justice Simon Brown held that, “The question of what constitutes ‘a legitimate’ reason is a pure question of fact in each case. The central question where the defence is legitimate research will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs in the pretence of undertaking research, or by contrast a genuine researcher with no alternative but to have this sort of unpleasant material in his possession. In other cases there will be other categories of “legitimate reason” advanced. They will each have to be considered on their own facts. Courts are plainly entitled to bring a measure of scepticism to bear upon such an enquiry: they should not too readily conclude that the defence has been made out.” [2000] 2 All E.R. 425 Page 10.
I agree with this judgement and I will treat this case on its own facts, subjectively.
The defendant knew that the images were on his hard drive as he had created them, so he would not have had a defence regarding subsection (1)(b); which states that a person has a defence under s.58 if “the person had not seen the image concerned and did not know nor had any cause to suspect, it to be a prohibited image of a child”. Neither do I consider making the video “as a joke to entertain his friends” a legitimate reason as described in s.58 (1)(a), “that the person had a legitimate reason for being in possession of the image concerned”. In R v Wrigley, similarly do Atkins, the defendant claimed that he had a ‘legitimate reason’ for possessing indecent images of children – academic research. His appeal was dismissed as he did not provide any material evidence of his research, which does not satisfy the requirements for a legitimate reason as described by Yaman Akdeniz in his journal, “A defendant will be able to claim that he had a legitimate reason for having photographs or pseudo-photographs in his possession only in limited circumstances where there is evidence to support his claim” .
On this point of law, I agree with the Magistrates’ Court that the defendant’s excuse is not sufficient to be classified as a ‘legitimate reason’ and constitute a defence.
By that very fact, whether or not the defendant would have a defence under s.58, my decision has been brought to the surface at the beginning of my judgement. That is, that due to the ambiguity of subsection (8) of s.56, my reasoning was based on common sense, I will once again affirm, that I do not see enough resemblance in the TV characters Bart, Lisa and Maggie to depict even an ‘imaginary child’. I will allow the defendant’s appeal, however I do consider the creation of such a video disturbing and I would advise the defendant to restrain himself from making any indecent photographs or videos for the future.
Table of Cases
Atkins v DPP and Goodland v DPP [2000] 2 All E.R. 425
R v Bowden
R v Christopher Bernard Wrigley 2000 WL 699323
ENGLISH LEGAL PROCESS
LAW-2B1Y
SUMMATIVE COURSEWORK 2009/2010
January 12th 2010
Student Registration Number: 4424808
Word Count: 1513
