The transmission of electronically stored data to only one recipient is sufficient publication with section 1(3) of the Obscene Publications Act 1959 for the purposes of a prosecution under that Act.

The Court of Appeal, Criminal Division so held when allowing an appeal by the prosecution under section 58 of the Criminal Justice Act 2003 against a ruling by Judge MacDonald QC in the Crown Court at Maidstone on 16 November 2011 terminating the trial of GS on nine counts of publishing obscene material contrary to section 2(1) of the Obscene Publications Act 1959 on grounds that there was no case to answer.

RICHARDS LJ, giving the judgment of the court, said that the defendant’s computer, which had been seized, showed that the defendant had engaged in an internet relay chat with an unknown person involving fantasy material about the abuse of children. The defendant, prosecuted on nine counts of publishing obscene material contrary to section 2(1) of the Obscene Publications Act 1959, submitted that there was no case to answer. The trial judge rejected the submission that the material could not have a tendency to corrupt because the recipient was already corrupt, but, relying on section 2(6) of the Act, accepted that publication to only one person, in circumstances in which wider publication was most unlikely, was insufficient to be a publication within the Act. It was clear from section 1(3) of the Act that publication to only one person was sufficient publication for the purposes of the Act. That conclusion also followed from the reasoning which ran through R v Barker [1962] 1 WLR 349, R v Clayton and Halsey [1963] 1 QB 163, Director of Public Prosecutions v Whyte [1972] AC 849 and other case law which did not need to be cited. That conclusion also followed because the contrary conclusion would make the Act incapable of applying and that would make no sense. The fact that “persons” was in the plural in section 1(1) of the Act was of no relevance. Likewise section 2(6) was not engaged on the facts of the case. The question whether the publication was obscene depended on the effect on the other party involved in the internet relay chat.