Indecent Images Flashcards
Defining a Photograph?
s7 of the Protection of Children Act 1978
- Includes indecent films, photographs (including the negatives/ data stored on a computer or disc), a tracing or other image, any form of video recording.
- Pseudophotograh means an image, whether made by computer graphics or otherwise, which appears to be a photograph.
- Including computer imagery comprising parts of an adult form but it should be noted that the overall impression conveyed is that the person shown is a child.
Key Case Law Related to Indecent Images
R v Bowden (2001)- Downloading images from the internet counts as making a photograph.
R v Smith and Jayson (2002)- Pseudo-photographs include browsing through indecent images of children on the internet.
R v Harrison (2007)- Storing ‘pop-ups’ or downloading onto a hard drive indecent images of children counts as possession.
R v Dooley (2005)- Where there is knowledge that downloaded images are likely to be accessed by others, it would be considered ‘with a view to distribute’.
Producing and distributing indecent photographs of children
s1 Protection of Children Act 1978
(a) To take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child (under 18); or
(b) To distribute (including offer to others) or show such indecent photographs [or pseudo-photographs]; or
(c) To have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or
(d) 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 pseudo-photographs], or intends to do so.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 10 years
Producing and distributing indecent photographs of children
s 1 of the Protection of Children Act 1978
Defences
- Had a legitimate reason for distributing, showing or having possession of the photographs or pseudo-photographs.
- The defendant did not see the photographs or pseudo-photographs, or saw them and did not know they were indecent or have any cause to suspect them to be indecent.
Some photographs of children may appear indecent but are not indecent in terms of the legislation…
s1 of the Protection of Children Act 1978
Exception 1A is that the photograph was of a person aged 16 or over, and at the time of the alleged offence, the person and the suspect were married or lived together as partners in an enduring family relationship.
Exception 1B is that the photograph is for use in criminal investigation of proceedings, in any part of the world.
Possession of an indecent photograph of a child
s160 Criminal Justice Act 1988
It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 5 years
Possession of an indecent photograph of a child
Defences
s160 Criminal Justice Act 1988
(2) …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 an unreasonable time.
What is the ‘Marriage Defence’?
s160A Criminal Justice Act 1988
The defendant must prove:
- The child was over 16 at the time of the photos.
- That they were married, or civil partners of each other or lived together as partners in an enduring family relationship.
- That the child consented (or they reasonably believed that they consented).
- It was shown or distributed to no one other than the child.
- The child consented to the possession (and no one else was in the photo).
Possession of Prohibited Images of Children
s62 Coroners and Justice Act 2009
(1) It is an offence for a person to be in possession of a prohibited image of a child.
(2) A prohibited image is an image which—
(a) is pornographic,
(b) falls within subsection 6 (focus on genitals, sex act, beastiality), and
(c) is grossly offensive, disgusting or otherwise of an obscene character
Penalty:
- Summarily– 6 months and/or fine.
- Indictment– 3 years
Defence for Possession of Prohibited Images of Children
s64 Coroners and Justice Act 2009
(1) It is a defence for the person to prove any of the following matters—
(a) that the person had a legitimate reason for being in possession of the image concerned;
(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;
(c) that the person—
(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii) did not keep it for an unreasonable time.
Possession of a Paedophile Manual
s69 Serious Crime Act 2015
(1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.
Penalty:
- Summarily– 6 months and/ or fine.
- Indictment– 3 years and/ or fine.
Defences of Possession of a Paedophile Manual
s69 Serious Crime Act 2015
(2) It is a defence for a person (D) charged with an offence under this section—
(a) To prove that D had a legitimate reason for being in possession of the item;
(b) To prove that—
(i) D had not read, viewed or (as appropriate) listened to the item, and
(ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or
(c) To prove that—
(i) The item was sent to D without any request made by D or on D’s behalf, and
(ii) D did not keep it for an unreasonable time.
What are the main criminal offences that seek to prevent the possession, creation and distribution of indecent images of children, and the dissemination of obscene material?
s1 Protection of Children Act 1978: Offence for a person to take, permit to be taken, make distribute or show, or have in his/her possession with a view to showing or distributing any indecent photograph (or pseudo-photograph) of a child.
s160 Criminal Justice Act 1988: Offence to possess an indecent photograph or pseudo-photograph of a child.
s63 Criminal Justice and Immigration Act 2008: Offences to possess extreme pornographic images.
s62 Coroners and Justice Act 2009: Offences to possess a prohibited image of a child
Possession of extreme pornographic images
s63 Criminal Justice and Immigration Act 2008)
(1) It is an offence for a person to be in possession of an extreme pornographic image.
Three elements must be fulfilled:
- The image is pornographic (produced solely for the purpose of sexual arousal).
- The image is grossly offensive, disgusting or obscene.
- A reasonable person viewing the image would think that any person or animal in the image was real.
An image is said to be extreme if it depicts (or appears to depict in a realistic way) activities which:
- Threaten a person’s life;
- Depicts rape or non-consensual sexual penetration (this was added by the Criminal Justice and Courts Act 2015, and therefore does not apply to material held prior to 13 April 2015).
- Result in (or are likely to result in) serious injury to a person’s anus, breasts, or genitals (including surgical reconstructions).
- Involve sexual interference with a human corpse (necrophilia); or
- Involve a person having intercourse or oral sex with an animal (bestiality and the act, person, or animal depicted in the image is real (or appears to be).
