Three judges ruled that a teacher who downloaded images of young boys was in breach of the 1978 Protection of Children Act, which says the making of an indecent photograph or pseudo-photograph of a child is illegal.

The judges accepted the Crown's view that a person who downloaded or printed off images was making them.

Lord Justice Otton, Mrs Justice Smith and Mr Justice Collins said that teacher Jonathan Bowden's conduct was clearly in breach of the 1978 Protection of Children Act - even though the material was for his own use.

Bowden, 30, of Rushes Road, Petersfield, Hampshire, was earlier jailed for four months at Cambridge Crown Court for having made an indecent photograph.

Sentence quashed

His sentence was quashed on appeal on Wednesday but the judges ruled his conviction had to stand.

The offence came to light when Bowden took his computer for repair and indecent material was found on it. He had downloaded the photographs from the internet and had printed them out himself or stored them.

Bowden accepted that he had downloaded the material for his own personal use but said he had not known it was illegal to do so.

He admitted that he had printed out photographs from the downloaded images.

The appeal judges rejected a claim on Bowden's behalf that the trial judge was wrong to rule that he was guilty of "making" photographs.

The Crown had argued the Act was concerned with the proliferation of images as well as their creation.

No risk to public

Photographs or pseudo-photographs found on the Internet may have originated from outside the UK, so to download or print within the country was to create new material which might not have existed here before, it said.

In allowing the appeal against sentence, the judges accepted there was no evidence of risk to the public or breach of trust, and a total absence of any evidence or history of inappropriate behaviour towards children.

Bowden had no previous convictions and his place in the chain of production of indecent material was as low as could be while still committing an offence.

The judges said the sentence was wrong and excessive.