rejected the appellants’ arguments that the determinative factors were (1) that the act of publishing took place in California when the format of the material supplied by Sheppard was converted to allow it to become accessible on the internet, and when it was accessed by other people clicking on the website; (2) that the act complained of did not constitute a criminal offence in the United States of America because it was not only not a criminal act but also specifically protected by the First Amendment to the American Constitution; and (3) that the wording of section 42 of the 1986 Act was different from the jurisdictional wording of, for example, the Theft Act 1968 and thus the Wallace Duncan Smith (No.4) line of authority was not applicable. 21. The judge said in his ruling that the test to be applied was summed up effectively in a quotation at paragraph 55 of the judgment of Lord Woolf C.J. in Wallace Duncan Smith (No.4) citing Rose L.J. in Smith (No 1): “The passage in Treacy v DPP to which Roberts CJ refers is the celebrated discussion by Lord Diplock of the bounds of comity and the judgment of La Forest J in Libman contains a most valuable analysis of the English authorities on the justicability of crime in the English courts which ends with the following conclusions: The English Courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting the crime take place in England, and restricts its application in such circumstances solely to cases where it can seriously be argued on a reasonable view that these activities should on the basis of international comity not be dealt with by another country.” 22. The judge pointed out that the material complained of was prepared in England and Wales, was uploaded onto the website from England and Wales and that this must have been done by Sheppard in the knowledge and with the expectation and intent that the material should be available to the public or a section of it within the jurisdiction in England and Wales. He noted there were references to postage for people living in England and Wales should they wish to have the materials sent to them by post. Thus it was in the contemplation of Sheppard that people in England and Wales should have access to the material which he posted on the website. Further, the material appearing on the computer user’s screen was exactly or substantially in the same form as it was when it was uploaded by Sheppard. He added that even if the defence were correct that a novus actus occurred in California at the point at which the server was utilised (which the judge said he seriously doubted was the case), use of the server was merely a stage in the transmission of the material requiring no intervention once the website was activated. Any novus actus could only be regarded as that of an agent acting on behalf of Sheppard and thus the act in English law of the principal. It could not, the judge said, be seriously argued on a