Sexual Offences Act

PoCA and related legislation was not considered in the review of sex offences law which resulted in "Setting The Boundaries", But it was mentioned in "Protecting The Public", the White Paper published in November 2002 which prepared the ground for the Sexual Offences Bill reforming most aspects of the law on sexual offences, published early in 2003.

Since PoCA already provided a comprehensive and loophole-free means to prosecute any person dealing in or with child pornography, this was a surprise.

The basic change is to extend the definition of "child" to anyone under 18 (instead of under 16).

A background document to the White Paper hilariously proposed: "There should be an exception for children aged 16 or 17 who take intimate photographs of themselves for their own use since they are over the age of consent and it seems an undue invasion of their privacy to stop them taking pictures of themselves for their own use." - this did not appear in the Bill.

Instead, someone clearly realised that a great deal of glamour and soft-core photography used models between the ages of 15 and 18. Generally speaking, no offence would be committed under the Bill's proposal where the 16- or 17-year-old subject of an indecent image has given consent - for example by signing a " model release ".

Sentencing Advisory Panel and COPINE

Following a major case, the Court of Appeal requested guidance from the Sentencing Advisory Panel on sentencing for offences under PoCA and the related Acts. After producing a consultation document and considering responses from several dozen organisations and individuals (including naturists but not including CCBN), the Panel produced a set of guidelines. These recommended that the seriousness of an offence should be judged - in part - on the nature of the material detailed in the charge. To make it easier to assess this "nature of the material", images were classified into five "levels" taken from a set of categories of material found in the possession of paedophiles. (This "COPINE" classification was produced by an academic group investigating paedophiles, and was not intended to represent directly any concept of "strength" or offensiveness of the material.) The Panel recommended that "Indicative (non-erotic / non-sexualised pictures)" material - COPINE category 1 - should be excluded from these levels "because images of this nature would not be classed as indecent". The lowest level of potentially indecent material was defined as "images depicting nudity or erotic posing, with no sexual activity". This explicitly includes naturist images: "nudist (naked or semi-naked in legitimate settings/sources" (COPINE category 2). In my opinion, this would have created a real problem for naturists, since a highly-respected quango had stated that naturist images should be considered as potentially indecent. Fortunately, things have turned out in a satisfactory manner

Court of Appeal Decisions

The Sentencing Advisory Panel's advice was published in August. Several cases were pending in the Court of Appeal, waiting for this document to become available. These were R v Oliver, R v Hartrey and R v Baldwin, usually referred to as R v Oliver and others 2002, since the judgements were delivered in one combined statement on 21 November 2002. For naturists, the key element of the judgement by Lord Justice Rose, Mr Justice Gibbs and Mr Justice Davis, is as follows:

Therefore, an image showing no more than "nakedness in a legitimate setting" will not be considered indecent in an English or Welsh court. Of course, nakedness in a legitimate setting could be the subject of an indecent image, but only if some other factor was involved taking it into one of the five levels detailed above. For the time being, naturists should be safe from conviction thanks to this judgement - although nobody can be guaranteed immunity from investigation.