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Indecent photographs of children

The Law

Computer Forensics The Law

The two main offence provisions in this area are section 1 of the Protection of Children Act 1978 (PCA 1978) and section 160 of the Criminal Justice Act 1988 (CJA 1988). The PCA 1978 addresses certain aspects of the sexual exploitation of children by penalizing the making, distribution, showing and advertisement of indecent photographs of them. The test to be applied in respect of indecent images of children is whether or not it is indecent. The word 'indecent' has not been defined by the PCA 1978, but case law has said that it is for the jury to decide based on the recognized standards of propriety.

Section 1 PCA1978 covers a wide range of offences concerning indecent photographs of children. Furthermore, it extends to the making of 'pseudo-photographs', defined as 'an image, whether made by computer graphics or otherwise, which appears to be a photograph'. Throughout the Act pseudo-photographs are put on the same footing as actual photographs. It is possible to convict a person of making a pseudo-photograph where the dominant impression conveyed is that the person shown is a child, notwithstanding that some of the physical characteristics shown are those of an adult (section 7(8) PCA 1978). Archbold 31 - 114.

The PCA 1978 and section 160 CJA 1988 deal only with indecent photographs and pseudo-photographs of children. Other statues therefore, have to be used to prosecute offences involving drawings, sound and text-based stories. The primary law in relation to this is the Obscene Publication Act 1959, (the test is does the material have a tendency to 'deprave and corrupt'?).

Offences relating to associated actual conduct with children are contained in sections 10, 11 and 48 - 50 of the Sexual Offences Act 2003. There are of course other offences where the internet may be the vehicle of communication under that Act, such as arranging or facilitating the commission of a child sex offence (section 14), and the "grooming" offence under section 15.

Section 1 Protection of Children Act 1978

Section 1(1) of the PCA 1978 creates a number of offences and has been given a wide interpretation by the courts. These are either way offences with a maximum term of imprisonment of ten years if convicted on indictment.

For an offence under section 1 PCA 1978 the prosecution has to prove:

  1. That the defendant deliberately and/or knowingly either, made, took, or permitted to be taken, distributed or showed indecent photographs or pseudo-photographs, or possessed them with a view to their being distributed or shown, published or caused to be published an advertisement for indecent photographs.
  2. The photograph or pseudo-photograph was indecent. Indecent photograph includes an indecent film, or a copy of a photograph or film, or computer data capable of conversion into a photo a copy. See section 7 PCA 1978. The test for indecency is for the jury to decide based on what is the recognized standard of propriety. R v Stamford [1972] 2 Q.B. 391. The circumstances and motive of the defendant are not relevant to the question of indecency, although they may be relevant to the question of whether the photograph was deliberately taken or made, R v Graham-Kerr 88 Cr App R 302 CA; R v Smethurst [2002] 1 Cr App R 6, CA. Archbold 31 - 114.
  3. The photograph or pseudo-photograph was of a child section 7(6) of the PCA 1978. Archbold 31 - 114. The definition of a child was altered from 16 to 18 years by section 45(1) of the Sexual Offences Act 2003, in force from 01 May 2004. The age of a child is ultimately for the jury to determine. It is a finding of fact for the jury, and expert evidence is inadmissible on the subject, since it is not a subject requiring the assistance of experts R v Land [1998] 1 Cr App R 301, CA. See also section 2(3) PCA 1978.

Sentencing Guidelines

The sentencing guidelines from the Sentencing Council (formerly the Sentencing Guidelines Council) should be applied in determining mode of trial for cases involving indecent photographs or pseudo-photographs of children. Guidance on how this should be interpreted was set out in R v Thompson [2004] 2 Cr App R 16 where it was said that the following practice should be followed when drafting indictments (Archbold 31 - 117).

In looking at the nature of the material the Sentencing Council has categorised such material into five levels of seriousness with level five being the most serious.

Level one: Images of erotic posing, with no sexual activity;

Level two: Non-penetrative sexual activities between children, or solo masturbation by a child;

Level three: Non-penetrative sexual activity between adults and children;

Level four: Penetrative sexual activity involving a child or children, or both children and adults;

Level five: Sadism or involving the penetration of, or by, an animal.

The aggravating and mitigating factors set out in R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28 remains relevant. The court in Oliver stated that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it. The seriousness of an individual offence increases with the offender's proximity to, and responsibility for the original abuse.

The age of the child is now an aggravating factor and police officers should be encouraged to ensure that images are divided not only according to the categories set out above but also as to whether the child is under 13 years, or 13 - 15 years and 16 - 17 years old.

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