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The Protection of Children Act 1978 (‘PCA 1978’) and the Criminal Justice Act 1988 (‘CJA 1988’) are the two main statutes that legislate offences surrounding nude and provocative images and videos of children; legally and professionally referred to as Indecent Images of Children (‘IIoC’) but more commonly known as ‘Child Pornography’. There are four offences under the PCA 1978 and one offence under s160 of the CJA 1988, these are as follows:
- Possession with intent to distribute: It is an offence for a person ‘to have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others’ (Protection of Children Act 1978, Section 1 (c)). This makes it Illegal to knowingly have any child abuse imagery in a person’s possession with the intention of sending them to others. In R v Fellows & Arnold  the Court of Appeal held that a digital representation of a photograph was the same as a physical photograph.
- Distribution: It is an offence for a person ‘to distribute or show such indecent photographs [or pseudo-photographs]’ (Protection of Children Act 1978, Section 1 (b)). This makes it illegal to send or make available to another person any IIoC, as with possession, R v Fellows & Arnold  also applies to distribution.
- Production: It is an offence for a person ‘to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child’ (Protection of Children Act 1978, Section 1 (a)). This makes it illegal for a person to physically take or produce a piece of Child Abuse Imagery. This section also includes the act of ‘making’, which is legally defined as making an image come into existence and not a person physically making the image themselves, this was held in R v Jayson .
- Advertisement: It is an offence for a person ‘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’ (Protection of Children Act 1978, Section 1 (d)). This makes it illegal to create an advertisement, whether online or off, that would be interpreted as being an offer for IIoC.
- Possession: ‘it is an offence for a person to have any indecent photograph [or pseudo-photograph] of a child . . . in his possession.’ (Criminal Justice Act 1998, Section 160 (1)). This offence provides a much broader scope to Indecent Imagery and is used in cases where there is ambiguity regarding the defendant’s possession. In R v Porter  it was held that if the defendant was in possession of Indecent Images, but he deletes them before any criminal proceedings, to a state where he is unable to retrieve them, then he is no longer considered to be in possession.
Categorisation of images is a key factor in cases of IIoC and plays a vital role in sentencing. The category an image is placed in determines its level of severity. The original category system was only introduced in 1997, 20 years after the original Act, this system was called the COPINE scale and was composed of 10 separate categories. Via a ruling in R v Oliver , this system was changed to a scale composed of 5 categories, this was called the SAP scale. As of 2014 a 3-point grading system is now used, the categories are A, B and C and each image is classified as follows:
Prior to the 2014 scale, the court and jury played a role in deciding the decency of an image, this caused an issue of bias, as a jury was likely to be prejudice with a case regarding Indecent Images of Children. This was shown in R v Mould  in which the defendant had in his possession an image that was deemed indecent, however, the same image could be found in a medical textbook and so the defendant relied on this for a defence and stated that his access to paedophile information should not be considered regarding the decency. The appeal court held “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.” (Appeals Court ruling in R v Mould, (2000)).
Images are now categorised prior to trial by a specialist division of the police, the Child Abuse Investigations Department, these departments are composed of specialist officers trained in analysing Indecent Images of Children and categorising them correctly. The decency of images is no longer a cause for question at trial and this has led to many cases regarding the PCA 1978 to now result in immediate guilty pleas.
The prosecution simply need to prove that the defendant knowingly possessed, produced or distributed IIoC. This can be demonstrated in a few ways, commonly the prosecution will show that the defendant catalogued the images, such as storing in named folders. This can also be backed up as the types of images and videos covered under the above Acts are not easily found and to accidentally download them is quite difficult, or, as in the case of R v Dawkins (2016), belonging to a paedophile network often gives relevant proof. Where a defendant may claim they did not access the images, the CPS may consult with cyber forensic experts such as ‘SYTECH’. Regarding distribution, the Mens Rea and Actus Reus are similarly easy to prove for the prosecution, often images are sent in encrypted group chats which only the defendant is going to have access to. Production is the most severe out of all IIoC offences, and proving it is often somewhat more difficult, the police rely on witness statements and will complete a more through forensic analysis of all electronic devices such as cameras, recorders, smart phone galleries etc.
The courts play less of a role in the categorisation of images, however, they play a larger role in sentencing direction as there is a great deal of aggravating and some mitigating factors to be called upon. After the court is provided with the evidence and the judge has heard both sides arguments the judge must then begin sentencing, following the Sentencing Councils guidelines which are as follows:
The sentencing range is very broad, this is again due to the number of aggravating factors that can be at play, these factors are:
There are many relevant case decisions with regards to Indecent Images of Children, as the main statutes used in these cases are quite old, they are often updated to fit more modern technology via case law. Two very impactive examples of this are R v Jayson  and R v Fellows & Arnold :
- R v Jayson 
The defendant knowingly downloaded an Indecent Image onto his computer screen, but not directly onto the hard drive of his device. He claimed that this download did not constitute the act of ‘making an indecent image’. The court held that this was an act of making as Jayson, as the computers operator, in so downloading, was causing the image to appear and thus exist on the screen; ergo, this constituted making. R v Smith  held that if the defendant made the image appear on the screen but was unaware of what the image would be before it appeared, then he is not guilty of the act of making.
- R v Fellows & Arnold 
Is widely considered the most important decision regarding IIoC, this is because when the PCA 1978 and CJA 1988 were introduced, the internet was either non-existent or in a state that was unusable by the public. When the internet evolved into a more user friendly and capable means of communication, things such as file sharing became possible and many individuals capitalised on this, specifically those wishing to share and access Indecent Images of Children. The ruling in R v Fellows & Arnold stated that downloading an image from a computer and having the image in a digital file did constitute the offence of ‘making a copy of an indecent photograph’ and thus precedented all future offences involving the internet as a means of distribution
The above cases are paramount and have been vital to this area of law, as crimes involving the PCA 1978 and the CJA 1988 are now almost exclusively facilitated and committed online, these rulings have ensured that the Acts have remained relevant and are still effective and good law in todays society.
There are several defences available to a defendant accused of an offence relating to Indecent Images of Children.
Defences available to both the PCA 1978 and s.160 CJA 1988
Legitimate reason: what constitutes a legitimate reason is not defined in law and is a question of fact that should be considered on a case by case basis. This defence is most often used by researchers, where during their research it be necessary for them to access or have Indecent Images of Children. When such a defence is used it must be proved that the defendant was a legitimate researcher or somebody who had legitimate reason to have such images opposed to somebody who was just using the guise of research to access Indecent Images. This defence is available for S.1(1)(b)/(c) PCA 1978 and s.160 CJA 1988.
Lack of Awareness: If the defendant can prove they were a) unaware of the image; or b) were unaware that the image was of a child, then they are not guilty of an offence under s.1(1)(b)/(c) PCA 1978 or s.160 CJA 1988. In R v Collier , it was shown that even if the defendant knew the images were indecent, it was still a defence if he could prove he was unaware the images were of children.
Marriage and other relationships: This is defence covers S.1(1)(a)/(b)/(c) of the PCA 1978 and s.160 of the CJA 1988. If the defendant can show that the image was of a person aged 16 or 17, and can also show that at the time the image was taken they were married/in a civil partnership/living together in a “enduring family relationship”, then no offence shall have been committed.
Defences available to only the PCA 1978
Criminal Proceedings and Investigations: ‘The 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. This defence will also apply to defence solicitors, counsel, police officers, prosecutors, Judges and others who must deal with indecent images of children in the course of their work etc.’ (Indecent Images of Children, Crown Prosecution Service, statutory defences, 2017), this defence was added out of necessity to protect those who, due to their work, had to ‘make’ IIoC.
Defences available to only the CJA 1988
Unsolicited Photographs: It is a defence for the defendant to show that he did not make a request for the image and that he did not keep it for an unreasonable amount of time after receival. Neither ‘request’ not ‘reasonable amount of time’ are defined and are considered on a matter of fact basis
In recent years there have been several changes and additions to the law regarding Indecent Images of Children, most notably was via section 45(2) of the Sexual Offences Act 2003, which amended the age of a child in the PCA 1978 from 16 to 18; thus, increasing the scope of the law. This amendment was met with some opposition as there were many in possession of, what was at the time, legitimate and legal pornography. This change is facing calls for reform due to the complete shift in society regarding pornography and specifically the now normalised behaviour of teenagers sending nude images of themselves.
The most recent addition to the law of IIoC was made via section 64 of the Coroners and Justice Act 2009. This Act brought in the offence of ‘making indecent drawings of children’, in which it is a crime to draw (whether digitally or otherwise) an indecent image of a child. This was first applied in R v Freeman  where the defendant had over 3000 drawings of child rape, he was sentenced to a minimum of 30 months imprisonment. This addition caused controversy within online communities as there is a large population of people who have blogs or pages on popular sites such as ‘Tumblr’ that are dedicated to pornographic art.
It is the age change that has caused the most problems. With the accessibility of cameras, it is now commonplace for young people to engage in ‘sexting’ between one another, this act is acceptable and normal behaviour to said young people, yet the law still regards this as illegal under the PCA 1978. The issue with this flaw is yet further problematic, as there is a bias in the way in which these offences are dealt with. For example, in 2015 there was a case of a 14-year-old boy who sent a nude image of himself to a girl also aged 14, the girl then sent this image to multiple other people within their school. The boy was dealt with by the police and an offence was recorded, yet the girl, who had committed a more serious offence under the PCA 1978 as she had distributed it to multiple people, was not dealt with by the police. This criminalisation of young people can seriously affect their lives and often discourages victims of sexual exploitation to come forward. Very recently in 2017 a 12-year-old girl was groomed online and was persuaded to send nude images of herself to a predator, the National Crime Agency stated “In this instance we understand the child sent an image of herself to another person. If a young person is found creating or sharing images, the police must record a crime, in line with Home Office Counting Rules, and investigate.” (NCA spokesperson, 2017).
There are many differing opinions regarding reform, a highly controversial one was made recently by Chief Superintendent Gavin Thomas who stated that with those who access lower levels of imagery “Should we be going down the criminal justice route or, based on a proper assessment, should we be going down the health route” (Ch Supt. Thomas, 2016). On the other hand, many call for harsher sentences for those who access IIoC, a spokesperson for the NPSCC Wales stated this is often because “By downloading this material […] only fuelled the demand for abuse images and helped ensure that more children’s lives will be destroyed to produce it” (NSPCC Spokesperson, 2016). These clashing opinions and views is a major problem in reforming the law as there is always two very opposing sides who both hold controversial and sometimes extreme opinions and suggestions.
With the flaws considered, I believe there should be a defence specifically for under 18’s in relation to them ‘sexting’ so long as it is in a consenting relationship and there are no signs of abuse or coercion. This defence would protect young people from being criminalised and would safeguard them from future issues relating to the crime on their record and making it specifically for those under 18 would remove any loophole of actual predators being able to use it as a get out of jail free card. This change would be in line with the Canadian Supreme Court’s ruling in R v Sharpe , where a common law stipulation meant teenagers were protected if they were in a committed relationship and the images were intended for private use.
Even with these problems in mind, this law is still robust, effective and it is strong regarding the liability of defendants and there are no real loopholes in the law that allow for defendants to not face criminal liability. The case law changes to the offences surrounding IIoC have been the most successful and have ensured that the law is still effective, as, if these decisions had not been held and the wording of the Acts was interpreted exclusively literally, then any Indecent Images of Children facilitated online would not constitute an offence.
Acts of Parliament
Coroners and Justice Act 2009
Criminal Justice Act 1988
Protection of Children Act 1978
Sexual Offences Act 2003
Allen, M., 2017. Criminal Law. 14th edn. London: OUP Oxford
Gillespie, A., 2012. Child Pornography: Law & Policy. 1st edn. London: Routledge.
Wortley, R & Smallbone, S., 2012. Internet Child Pornography: Causes, Investigation, and Prevention. 1st edn. California: Praeger.
R v Collier 2005
R v Dawkins (2016)
R v Fellows & Arnold 1997
R v Freeman 2011
R v Jayson 2002
R v Mould 2000
R v Oliver 2002
R v Porter 2006
R v Sharpe 2001 Canada
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