Introduction
We covered the case of Adam Johnson, the Sunderland footballer who was convicted of Sexual Activity with a Child, last week.
As is so often the case in these sorts of cases, plenty of people have been on the internet posting, or claiming to post, pictures of the 15 year old victim.
To be clear, this would be illegal and is a criminal offence (see here for an example).
Facts
Shortly after Mr Johnson was arrested in March last year the Sun published a photo of the victim that had been taken from her Facebook page. That landed David Dinsmore, the former editor of The Sun, in Court.
That had, however, pixelated it. DJ Riddle said “It is right and it is indeed clear that there are no facial features identifiable from the photo, the hair colour has been disguised, the hair length has been changed, and the background to the photograph has been altered and indeed there have been other changes relating to, for example, clothing“.
However, the DJ seems to have ruled that a picture is a picture, pixelated or not, and found Mr Dinsmore guilty of the offence.
The Judge was also “satisfied that [Mr Dinsmore] took and the staff on the newspaper took steps that they thought complied with the law“.
Roy Gleenslade at the Guardian has more details of what steps were taken – “The image of Johnson and the girl was cut from the original photo and put on to a white background before photoshopping and airbrushing techniques were used to leave the girl with a “blank egg shaped face without any distinguishing features.”
Furthermore, said Ollason, we “gave her a very different head of hair which is a different shape and length.”
Then a photograph of the Irish president, Michael D Higgins, attending a tree-planting ceremony in a Dublin park, was photoshopped and used as fake background. And there was still more cropping after discussions with in-house lawyers“.
However, it is recorded that “the picture had previously been posted on the girl’s Facebook page for a six-week period and some people were therefore able to identify her from it“.
On the face of it, it is hard to reconcile these two points, If those steps were taken, how was it possible for anyone to recognise her? Unless they already knew who she was. It’s difficult without looking at the picture, which is of course illegal.
Anyway. The maximum penalty is a fine. Mr Dinsmore was ordered to pay £1,300 in costs and directed to pay £1,000 in compensation.
The Law
The law is in one way straightforward. It is set out in s1 Sexual Offences (Amendment) Act 1992 :
“no still or moving picture, of that person shall during that person’s lifetime … be published in England and Wales in a written publication available to the public“.
The interpretation section, s6, says that ““picture” includes a likeness however produced“.
It was confirmed in the case of O’Riordan v DPP [2005] EWHC 1240 (Admin) that this is a ‘strict liability’ offence – the fact that Mr Dinsmore did not know that he was breaking the law, and was intending not to, is not a defence.
An interesting question is whether what was published was in fact a ‘picture’. This actually caused some discussion (and disagreement) in UK Criminal Law Blog Towers.
On the one hand, although she was unrecognisable, it was still a ‘picture’ of her. On the other, the intention of the legislation is clear – it is to stop complainants in sexual offences being identified, and given that this victim was hidden and there was no danger of this happening, the actions of the newspaper should not have fallen foul of the law.
It can end up being quite an esoteric question – when is a picture a ‘likeness however produced’? For example, what about if Mr Picasso had decided to ply his trade in The Sun –
Would this fall on the wrong side of the law? Do you have to consider how ‘like’ the ‘likeness’ is? Is the real test ‘can the victim be identified from the likeness‘?
This is a question worthy of a philosophy class, as well as for a law class. We hope that Mr Dinsmore takes this matter to the High Court to see whether the DJ got it right.
Should he have been prosecuted?
Whether or not this should be considered a breach of the law, it does raise the question of whether there should have been a prosecution.
It seems to me that this is arguable, at least against Mr Dinsmore. The Sun is a corporate body and is not hurt by the strict liability nature of the offence. But it is important not to underestimate the impact of a conviction on a person – for example, this may stop someone being able to travel to the USA.
In light of the steps taken, it seems to me arguable that Mr Dinsmore should not have been prosecuted (or, at least, the decision to prosecute should have been revisited when the DJ made the findings of fact that he did.
You don’t need to look at Arts 8 or 10 of the ECHR for this – it has never been the case that just because there has been a breach of the law there must be a prosecution. The Code of Conduct for Crown Prosecutors reflects this.
Here, prosecuting the Sun was the right decision, but I have doubts as to whether the prosecution of Mr Dinsmore was proportionate and necessary in the circumstances.