Notes

As you may have noticed, simple possession of an indecent photograph of a child is not an offence under PoCA, (to "show" a photograph means to show it to someone other than oneself). This loophole was plugged by section 160 of the Criminal Justice Act 1988. Prosecutions for possession under this Act are almost as common as prosecutions under PoCA.

The above may seem straightforward, and/or to have large gaps. Neither is the case. For example, women are prosecuted under PoCA despite the use of "his", "himself" and the like. The term "photograph" has been defined to include any form of photographic image - negatives, prints, slides, video, cine film, computer files, printout, magazines, etc. An artificially created image which has the appearance of a photograph is also covered, as is an image which has been manipulated to turn it into an indecent image and something (eg a computer program) which could generate an image equivalent to a photograph. This extension to cover "pseudo-photographs" and the like was provided by section 84 of the Criminal Justice and Public Order Act 1994.

What is a Child?

If the age of the subject of a photograph is known, then that determines whether the photograph is "of a child", otherwise the court has to determine whether or not the subject was aged under 16 at the time the photograph was taken. The Appeal Court judgement in R v Land, 1997 determined that, in the absence of evidence of the age of the subject of the image, the jury or bench shall use their own judgement to decide whether or not the subject is a child, and expert evidence on this matter is not admissible.

Legal Defences

For some charges, there are standard defences of having legitimate reasons for possessing, distributing or showing the photographs, of not knowing that one had the photographs in one's possession, of not realising that images were indecent, and of having no reason to suspect that they were indecent. No successful uses of the defence of legitimate reason are known, while claims of lack of knowledge have been rejected in several cases. When a University lecturer attempted to claim legitimate research reasons for having indecent images on his computer disc drive, the Appeal Court in Atkins v DPP dismissed the claim, stating "Courts were entitled to bring a measure of scepticism to bear upon such an inquiry and should not too readily conclude that the defence had been made out.". Similarly, a postgraduate claimed that his possession of 677 indecent images, and associated email exchanges with two paedophiles, was the basis of a planned reseach project. The Appeal Court judged that the original trial jury was right in its rejection of this claim (R v Wrigley, 2000).

Neither the Human Rights Act (HRA) nor the European Convention on Human Rights (ECHR) provide a way round PoCA. Claiming that prosecution for taking, making or possessing indecent photographs of a child infringes one's right to respect for private and family life does not work (R v Smethurst, 2001 and R v Bowden, 2000). Courts judge that children have the right to be protected from exploitation - which is in accordance with HRA, ECHR, the UN Convention on the Rights of the Child, and subsequent UN resolutions. The rights of a child are far more important than any imagined rights of an adult to take or own indecent photographs.

"Making" an Image

Downloading an indecent image of a child from the Internet constitutes "making" an indecent photograph for the purposes of these Acts. The Appeal Court judgement R v Bowden, 2000 established this significant legal principle. Since "possession" of an indecent image attracts a lower penalty than "making" it, there is a clear incentive for someone with a set of computer files representing such images to admit to "possession" but to deny "making". Be under no illusion, case law is clear - downloading amounts to "making", and in this context "downloading" is taken in its widest sense, including knowingly receiving an email with an indecent image of a child as an attachment, and knowingly visiting a Website containing indecent images of children. In the latter case the image files are stored in the browser's cache, amounting to "making" - so far no case of this nature has turned on whether viewing a file amounts to "making" an image.

Motivation

The motivation of the photographer is relevant in regard to the taking of the image - offence (a) above. To be prosecuted successfully under that section of PoCA, the court must decide that the photographer deliberately intended to produce the indecent image offered in evidence (assuming that the court agrees that the image is indecent - if not, then the motives become irrelevant, as there has been no offence). The photographer may have a complete defence if it can be shown that the indecent image was taken accidentally, or that the inclusion of the indecent portion of the image was unintentional. The case law here was established by an appeal judgement (R v Graham-Kerr, 1988) concerning photographs taken at a naturist swim.

What is "Indecent"

It is for the jury (or bench of magistrates) to decide whether or not a photograph is "indecent". They must do this by "applying the recognised standards of propriety". This was another aspect of R v Graham-Kerr, drawing on the principle established in R v Stamford, 1972 - a case turning on whether or not an article sent by post was indecent, which noted the clear distinction between the terms "indecent" (not defined by legislation) and "obscene" (which is defined in legislation). Neither the legislation nor case law laid down any content, area of the body, action or pose which did or did not make a photograph "indecent", until the most recent judgement R v Oliver and others, 2002 established some clear principles. Even with that guidance, it is up to the prosecution and the defence to try to convince the court one way or the other. The age of the child in the photograph is a material consideration when deciding whether or not the image is "indecent". This aspect was determined by the Appeal Court judgement R v Owen, 1988, where a professional photographer took a number of photographs of a 14-year-old girl, some of which were offered in evidence. In these "the girl is shown in what might well be considered a provocative pose displaying her bare breasts, wearing only a loose blouse, a pair of pants and a string of beads." - note that she was not nude. Judgement R v Smethurst 2001 also dealt with a case where the defendant claimed that the (unknown) subjects of the images were over 16 - the jury had not believed him, nor did the Appeal Court. Note that the Sexual Offences Bill currently going through Parliament proposes that the age below which the subject of an image is a "child" will be increased to 18 from 16, although this provision has been hung around with a large number of caveats and exemptions. The content, pose, number of images and other factors are usually taken into account when sentencing - this process is now the subject of a set of guidelines.

See Also: Reviews, Revisions, Bills and Sentencing Guidelines