Indecent images of children

An indecent image of a child is a photograph or pseudo-photograph (including one comprised in a film) which shows a child and is indecent. [1]

Definition of a photograph

In R v Fellows & Arnold (1994), the appealant contended that an image stored electronically could not constitute an indecent photograph of a child under section 7 of the Protection of Children Act.

It was ruled that an electronically stored image was a "copy of an indecent photograph of a child". The court stated that "there is no restriction on the nature of a copy, [and a copy of a photograph is data which] represents the original photograph, in another form". It was also stated that "there is nothing in the Act which makes it necessary that [a] copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. So we conclude that there is no restriction on the nature of a copy [..]" [2]

According to section 7 of the Protection of Children Act, references to a photograph are "the negative as well as the positive version; and data stored on a computer disc or by other electronic means which is capable of conversion into a photograph." [3]

So, an image stored electronically is a copy of a photograph and is illegal if it is indecent and shows a child.

Definition of a pseudo-photograph

A pseudo-photograph is an image which has the appearance of a photograph, but which is not a photograph. A pseudo-photograph of a child does not necessarily show a real child.

Defintion of a child

A child was originally defined as a person under the age of 16, however the Sexual Offences Act (2003) raised the defintion of "child" to a person under the age of 18.

Indecency

The decency of an image is an objective test; that is, it is decided by the jury. Indecency is considered to be a question of fact.

Interpretation

In order to judge whether an image is indecent, the jury must "apply[..] the recognised standards of propriety." (R v Graham-Kerr, 1988) [4].

In 2003, the Sentencing Advisory Panel provided guidance for Judges considering sentences for people convicted of an offence under the Protection of Children Act. The lowest level of indecency was described as "images depicting erotic posing with no sexual activity", which would suggest that naturist images without posing are not indecent. Despite this, a number of people have been convicted of an offence for making and possessing naturist images. In 2003, Tom O'Carroll was convicted of "evading the prohibition on the importation of indecent material", for importing photographs of "young naked child[ren] engaging in normal outdoor activity such as playing on a beach". One should never assume that an image must be pornographic for it to be indecent.

Put simply, a photograph or pseudo-photograph is judged to be indecent if the jury believes that it would offend the majority of the population of the United Kingdom.

Context

In R v Graham-Kerr, the defendant had taken (naked) photographs of a male child during a naturists-only event at a swimming pool. The Police interviewed the defendant about his intentions in taking the photographs, and he admitted that he received "'sexual gratification by taking or looking at such photographs". The Judge stated that the jury were entitled to take into account the circumstances, motives, and sexual intentions of the take.

At the appeal against conviction, the Judge ruled that "the circumstances and the motivation of the taker may be relevant to the mens rea of the take as to whether his taking was intentional or accidental and so on, but it is not relevant to whether or not the photograph is in itself indecent". The conviction was quashed. [5]

In R v Mould (2000), the Appeal Court ruled that "Mr Burton [representing Mr Mould] was rightly concerned that the jury, in deciding whether or not the photograph was indecent, would wrongly take into account [data showing access to paedophile discussion forums]." Although it was agreed that the jury should not use such information to make a judgment regarding the decency of the image for which Mr Mould was convicted, it was understood that "the prosecution [successfully] sought to rely on it in order to prove that the appellant had deliberately created the .bmp file." [6]

While a defendant's proven sexual attraction to children should not affect indecency, it may affect the perceived mens rea of an act.

Criminal offences

Under the (amended) Protection of Children Act, it is an offence for a person:

• to take, or permit to be taken, or to make any indecent photograph of a child . . .; or
• to distribute or show such indecent photographs; or
• to have in his possession such indecent photographs [outdated text removed]; or
• to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs, or intends to do so. [7]

Under the Sexual Offences Act (2003), it is an offence to cause, control, arrange or facilitate a child's involvement in pornography. [8][9][10]

It is an offence to "attempt to incite" any criminal offence in the United Kingdom.

The "making" offence

Causing an indecent photograph of a child to exist on a computer screen is considered to be "making an indecent photograph of a child".

"A person who either downloads images on to disc or who prints them off is making them. The Act is not only concerned with the original creation of images, but also their proliferation. Photographs or pseudo-photographs found on the Internet may have originated from outside the United Kingdom; to download or print within the jurisdiction is to create new material which hitherto may not have existed therein." (R v Bowden) [11]

Offences committed abroad

Any act done by a person (who was on 1st September 1997, or has since become, a British citizen or resident in the United Kingdom) in a country or territory outside the United Kingdom which—

(a) constituted an offence under the law in force in that country or territory, and

(b) would constitute a sexual offence to which this section applies if it had been done in England and Wales or in Northern Ireland,

constitutes that sexual offence under the law of that part of the United Kingdom. [12]

This means that one may be prosecuted under the Protection of Children Act (as amended by the Sexual Offences Act) if he commits a child sex offence in a foreign territory (under that territory's laws), which would also have constituted an offence if it were done in England, Wales, or Northern Ireland.

This Section of the Sexual Offences Act is likely to be amended by the Criminal Justice and Immigration Bill.

Defences

There are a small number of defences against charges under the Protection of Children Act. Below is a list of defences set by the statutes, precedents and case law.

Marriage and other relationships

In cases where a defendant has taken or made a photographic image of a child over the age of 16, the defendant is not guilty if, at the time when he obtained the photograph, he and the child:

(a) were married; or

(b) lived together as partners in an enduring family relationship; and

(c) the defendant reasonably believed that the child consented to the image being obtained. [13]

This exemption was introduced in 2003 under the Sexual Offences Act, which had changed the statutory definition of "child" (in the Protection of Children Act) from 16 to 18.

Mens Rea

The Criminal Justice Act provides that:

"Where a person is charged with an offence of possession, it shall be a defence for him to prove –

(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or

(b) that he had not himself seen the photograph or pseudo- photograph and did not know nor had any cause to suspect, it to be indecent; or

(c) 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 any unreasonable time." [14]

The same defences may be applied to the other offences under Section 1 of the Protection of Children Act.

It is also a defence for the defendant to prove that he did not take, make, distribute, show or possess an image which the knowledge that the image was, or was likely to be:

• an indecent image; and
• an image of a child.

This was upheld in R v Smith & Jayson, when the judge ruled that, "the mens rea necessary to constitute the offence [of making an indecent pseudo-photograph of a child] is that the act of making should be a deliberate and intentional act with knowledge that the image made is, or is likely to be, an indecent image of a child" (R v Smith & Jayson, 2003). [15]

A defendant must be proven (beyond reasonable doubt) to be aware that a cache of images exists, in order to be convicted for the possession offence. It should be noted that, in such cases, the defendant will still be convicted of the making offence, unless another defence applies.

Collages

Lord Justice Simon Brown ruled that "an image made by an exhibit which obviously consists, as this one does, of parts of two different photographs sellotaped together cannot be said to appear to be "a photograph" [16]. This means that, if a collage does not appear to be parts of a single photograph, it does not fall within the scope of the Protection of Children Act. A photocopy or scan of a collage may fall under the Act and could therefore be illegal if it shows a child and is judged to be indecent.

Law enforcement

It is a defence for the defendant to prove that images were made "for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings"

Sentencing

The sentencing guidelines for offences committed contrary to the Protection of Children Act were decided by the Sentencing Advisory Panel, to assist with sentencing during R v Oliver et al

The levels of indecency are as follows:

Level	Definition
Level 1	Images depicting erotic posing with no sexual activity
Level 2	Sexual activity between children or solo masturbation by a child.
Level 3	Non-penetrative sexual activity between adults and children.
Level 4	Penetrative sexual activity between children and adults.
Level 5	Sadism or bestiality

Judges use the following guidelines when sentencing someone who has been convicted under the Protection of Children Act:

Guideline sentence	Circumstances
Fine or conditional discharge	A fine may be appropriate if: the offender was merely in possession of material solely for own use, including where material was downloaded from the internet but not further distributed, and consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or there was no more than a small quantity of material at level 1. A conditional discharge may be appropriate in such a case if the offender pleaded and had no previous convictions.
Community sentence	A community sentence may be appropriate if the offender was in possession of a large amount of material at level 1 and/or a small number of images at level 2, provided the material was not distributed or shown to others.
Up to 6 months’ custody	Appropriate if: Offender was in possession of a large amount of material at level 2 or a small amount at level 3 or above, or Offender had shown, distributed, or exchanged indecent material at level 1 or 2 on a limited scale, without financial gain.
6–12 months custody	Appropriate if: Showing or distributing a large number of images at level 2 or 3, or Possessing a small number of images at levels 4 or 5.
12 months-3 years’ custody	Appropriate if: Possessing a large quantity of material at levels 4 or 5, even if there was no showing or distribution of it Showing or distributing a large number of images at level 3 Producing or trading in material at levels 1, 2 or 3
Longer than 3 years custody	Appropriate if: Images at level 4 or 5 had been shown or distributed, or Offender was actively involved in production of images at levels 4 or 5, especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain, or Offender commissioned or encouraged the production of such images (An offender whose conduct merited more than 3 years would merit a higher sentence if his conduct was within more than one of the categories)
Sentences approaching the 10 year maximum	Appropriate in very serious cases where the offender had a previous conviction either for dealing in child pornography or for abusing children sexually or with violence.

[17]

Images which are below the threshhold for Level 1 - but which are judged to be indecent by a jury - will be treated as Level 1 images during sentencing; therefore a naturist image with no erotic posing will be treated as a Level 1 indecent image of a child, if judged to be indecent.

A person who is convicted of an offence under the Protection of Children Act is also likely to be banned from working with children in the United Kingdom, and ordered to sign the Sex Offenders Register.

Important Notes

• Any image may technically be indecent under UK law.
• Even if an image has been declared as decent by one jury, it may be still be declared indecent by another jury.
• Despite precedents stating that the context of an image does not affect indecency, a jury may be more likely to rule that an image is indecent if they believe that the defendant is attracted to children.
• Previous interpretations of the indecency suggest that "indecency" has a lower threshhold than "pornography", so what is "indecent" (and therefore illegal) is not necessarily "pornographic".