News of concern over child abuse on the dark net came within a month of the children’s entertainer and artist Rolf Harris being convicted and sentenced for historic indecent assaults on more than one complainant. The full sentencing remarks are here. Other counts for making indecent images of children were separated and then not pursued. News reports are that paedophilic search terms were entered into his computer which suggests that the searches were done on open sources. It was also reported that Rolf Harris had notes on how to delete the internet history. Paedophilic activity is often cited as a reason to regulate the internet but caution needs to be exercised so as not to lose the essential freedoms that the web was designed to achieve.
The internet has a key underlying technical idea of open architecture networking. It can be openly used by anyone. Access to the internet is liberating and educational but unfortunately and perhaps inevitably, it has also been used by a great deal by paedophiles. Laws on cybercrime are emerging across the globe. Home Office Cyber Crime Strategy was published in 2010. The dark net is effectively anonymising technology which is being increasingly used by all sorts of people legitimately and otherwise. Young people in particular are keen to avoid surveillance by the State. The dark net is not new to anyone who prosecutes or defends these cases. In a relatively recent case a defendant who ran a fanzine style website for a relative who was a musician had a secret communication facility embedded within it through which indecent images of children had been exchanged. It was difficult at that time to prove who was responsible. Like the Rolf Harris case, those charges were not pursued. The defendant was sent for trial on other matters. It is issues of identification that will need to be dealt with if such cybercrime is to be successfully prosecuted and care has to be taken to ensure that innocent people are not caught by technology that can automatically download images without the users’ knowledge. Such issues are dealt with in domestic laws and cases:
The content of the images and the search terms on Rolf Harris’ computer (as reported) have shocked many but are in fact the usual issues that arise in indecent image cases in the Crown Court In England and Wales. In any such case, the prosecution have to prove who downloaded the images, whether those images were indecent and what was in their mind at the time.
Making indecent photographs of a child is an offence contrary to s 1(1) of the Protection of Children Act 1978 (8). In relation to the physical elements of the legislation, put shortly, s 7 of the same Act interprets photographs to include moving images and digital data. Downloading images (moving or otherwise) from an internet source is provided for in s 7(2) and (4)(b) and to do so constitutes making an indecent image as provided for in s 1. In deciding whether each image was indecent, the jury should be directed in accordance with the test set out in R v Stamford  2 QB 391 applying recognised standards of propriety (see also R v Neal ). This is an objective test. The jury should be directed to consider the question of indecency by reference to an objective test, rather than applying their wholly subjective views to the matter. Whether the making of the images was intentional or accidental is not relevant to whether the images are indecent. The mental element of the offence is not specified in s 1. However, it is settled law that the prosecution must prove that the defendant intentionally or knowingly “made” the indecent photograph. In most cases, the mental element is generally relevant to two issues:
(i) Whether all or some of the images were made by way of bulk download and accordingly the user had no knowledge he had made the images. See R v Harrison (Neil John) which dealt with “pop-up” images.
(ii) Whether the Appellant had taken such steps in ascertaining the age of the people shown in the image such that his knowledge or belief was that it was NOT likely that the image was one of a child. See R v Smith (Graham Westgarth); R v Jayson.
It is shocking for people to think about others being interested in indecent images of children. It is also worrying for people to think of computers automatically creating bulk downloads of which the user is unaware. For a case on the mental element in downloading indecent images, see R v Steen heard in the Court of Appeal on the 12 April 2014.
The dark net was the subject of a recent report by the International Centre for missing and exploited children which can be read here. The report recognised the dangers of such technology but also the value:
“The digital economy and anonymizing technology hold great promise and societal value, from offering financial tools to the world’s unbanked, to protecting dissidents and journalists from unjust government reprisal,” said Rubley. “But these benefits are clouded by those who use and exploit the digital economy to commit illegal acts. While these are all complicated issues, we believe that a regulatory framework can grow the digital economy – and confront those who seek to exploit it for illicit purposes.”
In the end, perhaps the legacy of Rolf Harris will be the improvement of the law on jurisdiction in relation to global abuse, whether physical and direct or online, but in the maelstrom of publicity surrounding global sexual abuse by celebrities, it will be important for law makers to maintain balance by targeting the abusers and keeping the internet free.
This blog was first posted on Halsury’s Law Exchange on 8 July 2014.