Indecent photographs of children
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:
- 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.
- 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.
- 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.
Defences
Section 1 Protection of Children Act 1978
The only defences to section 1(1)(a) and section 1(1)(d) of the PCA 1978 are those contained within:
- section 1A PCA which covers marriage, etc. of a child aged 16 or 17) or
- section 1B PCA as amended by section 46 of the Sexual Offences Act 2003, which is an exception for criminal proceedings and investigations etc.
The section 1B defence is available where a person "making" an indecent photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. Archbold 31 - 107a and 31 - 107b.
This reverse burden defence is intended to allow people instructed to act for the defence or prosecution who need to be able to identify and act on the receipt of an indecent photograph or pseudo-photograph, to deal with such images. This defence will also apply to defence solicitors, counsel, police officers, prosecutors, Judges, Computer Forensic Experts and others who have to deal with indecent images of children in the course of their work etc.
The CPS and Association of Chief Police Officers (ACPO) signed a Memorandum of Understanding in 2004 which provides guidance to those who have a legitimate need to handle indecent images of children by setting out how the defence provided in section 1B PCA 1978 may be applied. The Memorandum provides guidance to the Police Service, CPS, Computer Forensic Experts and others involved in the internet industry, in order to create the right balance between protecting children and effective investigation and prosecution of offences.
Section 1(4) PCA 1978 provides two defences to the offences listed in section 1(1)(b) (distribute or show) and section 1(1)(c) (possess with a view to their being distributed or shown) PCA 1978. Archbold 31- 107.
The defendant may suggest that he was looking at adult pornography sites, or even sites not connected with pornography at all, when child pornography sites popped up on the screen uninvited. In order to refute such a defence your computer forensic expert witness can show how often the defendant visited such sites and whether he saved the indecent images.
The defendant may suggest that someone else has access to the computer and has created the images. The police should always cover this in interview with the defendant. If others do have access, e.g. other family members or colleagues, then caution is needed. But it may be that the defendant has his own password to gain access to the computer or to the particular site on which the images have been found, or there maybe some other supporting evidence.
Section 160 Criminal Justice Act 1988
Section 160 CJA 1988 covers the offence of possession of an indecent photograph of a child. There are four defences to this offence: three are listed in section 160(2) CJA 1988, Archbold 31 - 115, and one is listed in section 160A. Three of these defences are very similar to those that apply to some of the offences under section 1 PCA 1978, i.e. marriage, etc of a child aged 16 or 17, legitimate reason, and the defendant's lack of knowledge. The fourth defence, which is not found in the PCA 1978, is that the photograph or pseudo-photograph was sent to the defendant without any prior request made by him and he did not keep it for an unreasonable time.
For the mental element that the prosecution must prove; and what appears to be a photograph (or pseudo-photograph see Atkins v DPP; Goodlands v DPP [2000] 2 Cr App R 248, Archbold 31- 118. This needs to be read in the context of the Court of Appeal judgment of R v Porter [2006] EWCA Crim 560.
Atkins v DPP is significant, in particular with respect to:
- Computers with multiple users, where there is no forensic evidence as to which user accessed a site, and
- Prosecutions relating to possession of material stored within automatically generated areas of the hard drive.
A computer forensic examination of the hard drive can usually identify what material is held within the temporary internet file, and assuming the identity of the user is known, such material may equally attract a charge of 'making' each such image without the need to prove knowledge of the automatic cache. If a user is demonstrated (e.g. by admission, or by proof that he has accessed the temporary internet file off-line) to have known of the existence and effect of automatic operating software, the offence of possession may arise. Archbold 31 - 118.
In R v Porter the Court of Appeal held that an image will only be considered in possession if the defendant had custody or control of the image at that time. If at the time of possession the image is beyond his control, then he will not possess it.
This has implication for the use of computer forensic examinations if an image has been deleted, 'possession' will depend on whether the defendant had the know-how and or the software to allow him to retrieve the image. Where, however, the offender admits that he downloaded the image or accessed it on the Internet then a charge of 'making' under section 1 PCA 1978 may arise. Archbold 31 - 118.
Subsection 160(2)(c)
The defendant must prove both 'that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf' and that 'he did not keep it for an unreasonable time'. The Act does not prescribe what constitutes a 'prior request', nor does it define the parameters of 'unreasonable time'. In particular, it is not clear whether time runs from when the image was received by the computer, or when it was known by a defendant to have been received. Consistent with the necessary mental element, the latter is likely. Archbold 31 - 119.
Defence of legitimate reason
'Legitimate reason' is not defined anywhere in the Act. It follows that a particular defendant may advance a range of possibilities for any admitted possession of such material. The provision clearly afforded (prior to section 46 SOA 2003, which introduced an exception for criminal proceedings and investigations) a defence to any party within the criminal justice system who of necessity must have possession of evidential material. There is, of course, no licence to an individual prosecutor or expert to retain material beyond the proper requirements of a particular case.
A defendant claiming 'legitimate reason' is presumed to admit possession of the qualifying material. The language of the Act appears to place both the evidential and legal burdens upon the defendant and following Sheldrake v DPP; Attorney General's Reference No 4 of 2002 [2005] 1 AC 264 it is likely that this will be accepted. As with other such defences that must be raised and proved by a defendant, the standard of proof is civil, namely that the defendant has established that 'it is more likely than not' that there was a legitimate reason for his possession of material.
Disclosure to defence
If the defendant's solicitor or counsel or computer forensic expert (for any reason) wishes to view the indecent photographs/pseudo-photographs or examine the defendant's hard drive, the prosecution should provide the defence with suitable access to the relevant material. Such access must enable the defendant to have private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS. Whenever possible, such access should take place either on police premises, or at the offices of either the defendant's solicitors or the offices of the defence or prosecution expert. The accused should, of course, only be permitted access whilst in the company of their legal representative.
Relevant Case Law
There have been some landmark cases that have applied the PCA 1978 and section 160 CJA 1988 with varying effect; the most important ones are listed below. Archbold 31 - 108a.
The age of a child is ultimately for the jury to determine. See R v Land [1998] 1 Cr App R 301 Archbold 31 - 109 and R v Charles William Owen (1988) 86 Cr App R 291 Archbold 31 - 108a.
In the case of Fellows and Arnold [1997] 1 Cr App R 244 providing another with a password to enable him to access pornographic data stored on a computer was said to be 'showing' him the data.
The downloading and/or printing of indecent images of children from the internet, is capable of amounting to an offence of 'making' the image contrary to section 1 (1) (a) of the PCA 1978. See R v Bowden [2000] 1 Cr App R 438, Archbold 31 - 108a.
Atkins v DPP; Goodlands v DPP [2000] 2 Cr App R 248 stated that knowledge was an essential ingredient of the offences of 'making' and /or possessing indecent photographs of children. Atkins v DPP also dealt with the legitimate reason defence. Archbold 31 - 108a.
The case of R v Westgarth Smith; Jayson [2002] EWCA Crim 683 stated that downloading an image that was capable of being converted into a photograph on to a screen or opening an email attachment is an act of making that image, subject to the requisite mens rea, Archbold 31 - 108a.
The case of R v Oliver, Hartrey and Baldwin Times Law Report, 6 December 2002 divided indecent images of children into five categories, and gave sentencing guidelines based on the categories. The sentencing guidelines have been amended by guidance from the Sentencing Council.
In R (on behalf of O'Shea) v Coventry Magistrates' Court [2004] EWHC Admin 905 the Divisional Court accepted that it was possible to incite another to distribute indecent images of children even where the 'purchase' of images was a fully-automated process.
In R v Porter [2006] EWCA Crim 560 to have possession of an image you should have custody or control of it.
Crown Prosecution Service v LR [2010] EWCA Crim 924
Where an indecent image is of a child; prosecutors should charge the suspect with an offence contrary to section 1 PCA 1978 or section 160 CJA 1988 and not a charge of extreme pornography. See R v Stephen Neal [2011] EWCA Crim 461 where the Court of Appeal held that it was unfair for an individual purchaser of a book to be prosecuted for possession of photographs in that book when the publisher and / or the retailer were not prosecuted.
