Online conversation held to constitute child pornography

About this case:

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The appellant, Mark Mulligan, had challenged the status of the conversation as child pornography within the meaning of the Child Trafficking and Pornography Act 1998.

He had also challenged the validity of the search warrant, claimed evidence obtained as a result of the search was inadmissible, and argued that the trial judge had erred in law in respect of the manner in which she charged the jury on the intent required by the Child Trafficking and Pornography Act 1998 for the production of child pornography to be an offence.

In respect of the conversation, which occurred through text, the appellant alleged that as it did not use any conventional visual representation of a child, but constituted a “fantasy conversation” between himself and the third party, it could not be considered pornography.

Further, he asserted that he had not been aware that the material could be reproduced, and had never intended for it to be downloaded into document form.

The trial judge found that as the messages were stored on a hard drive and were capable of being converted into a document, they could be considered a document under the Child Pornography legislation, and therefore were admitted in evidence.

On appeal, Mr Justice Mahon noted that the legislation “potentially captures almost every conceivable means of conveying information or imagery, other than, possibly, a private oral conversation between two people unheard by others and, of course, the private thoughts of an individual which are not disclosed to any third party”.

It was noted in particular that Section 2(1) defined a ‘document’ as being “any tape, computer disk or other thing on which data capable of conversion into any such document is stored”.

The contention that the Skype conversation was never retrieved by the appellant, or that he was unaware that it could be retrieved, or that he did not personally have the expertise to retrieve it in document form were all considered irrelevant considerations in so far as the commission of the offence in question was concerned, although the judge noted that they may be relevant to the issue of mitigation of sentence.

Thus, the trial judge was found to be correct in her finding that the material could be considered child pornography.

In relation to the warrant, the appellant drew attention to the prerequisite for a warrant that “there are reasonable grounds” for suspecting that evidence relating to the commission of “an arrestable offence” is to be found in an area.

He argued that because the warrant did not specify the precise “arrestable offence”, the warrant was invalid, and evidence obtained through its use should not have been admissible.

Justice Mahon cited DPP v. Morgan IECA 50, which found that “if the arrestable nature, and/or the specifics, of the offence can be inferred from the information on the warrant that will suffice”.

He also cited Simple Imports Limited v. Revenue Commissioners (Unreported, Supreme Court, 19th January, 2000), which found that “a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute”.

He further cited DPP v. O’Leary (Unreported, Court of Criminal Appeal, 29th July, 1998), which noted that in cases where the legislation contains a variety of circumstances under which a search warrant may be issued, there may be circumstances in which a number of categories are suspected, and that in such a case a warrant would be valid.

In the present case, it was found that the warrant was worded in compliance with s. 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997, under which it was issued.

Justice Mahon also referred briefly to the majority decision in DPP v J.C. IESC 31, which summarised the elements of the test to be applied to the question of exclusion of evidence as being:

“(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.

(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-

(a) that the evidence was not gathered in circumstances of unconstitutionality; or

(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.”

That judgment further noted that: “Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.”

In light of these judgments, it was found that the search warrant was valid, and the evidence admissible.

In relation to the final ground of appeal, it was contended on behalf of the appellant that the trial judge ought to have advised the jury that the evidence must satisfy them beyond reasonable doubt that the appellant had produced material “that was child pornography, knowing at the time that it was child pornography”.

Justice Mahon found that: “Ignorance of the law is generally no defence to a criminal charge. It could be said, (and possibly reasonably and accurately in this case), that an individual who had not studied the relevant provisions of the Act of 1998 would be unaware as to what material is capable of constituting child pornography, but it cannot be suggested that such ignorance could itself amount to a defence to a criminal charge relating to the production of child pornography.”

Furthermore, the content of the communication must be have been known to have been pornographic, and to have referred to children.

Finally, the Act did not provide for a basis for defending a charge of knowingly producing child pornography because the producer of same was unaware that the material in question automatically stored itself in a computer in a manner capable of being downloaded into document format, or that he was incapable, due to lack of skill to so do, and had not done so

The appeal was therefore dismissed.