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Home » Professionals » Legal Guidance » H to K » Indecent photographs of children

Indecent photographs of children

Updated 1/04/08

The Code For Crown Prosecutors

The Code for Crown Prosecutors should be applied to each case to ascertain whether there is sufficient evidence to provide a 'realistic prospect of conviction' and that it is in the public interest to proceed. See also "Charging Practice" below.

The Law

The two main offence provisions in this area are section 1 of the Protection of Children Act 1978 (PCA 1978) and s.160 of the Criminal Justice Act 1988 (CJA 1988). The Protection of Children Act 1978 addresses certain aspects of the sexual exploitation of children by penalising the making, distribution, showing and advertisement of indecent photographs of them. The test to be applied in respect of child pornography is whether or not it is indecent. The word 'indecent' has not been defined by the Protection of Children Act 1978, but case law has said that it is for the jury to decide based on the recognized standards of propriety..

Section 1 Protection of Children Act 1978 covers a wide range of offences concerning indecent photographs of children. Furthermore, it extends to the making of "pseudo-photographs", defined as "an image, whether made by computer graphics or otherwise, which appears to be a photograph." Throughout the Act pseudo-photographs are put on the same footing as actual photographs. It is possible to convict a person of making a pseudo-photograph where the dominant impression conveyed is that the person shown is a child, notwithstanding that some of the physical characteristics shown are those of an adult. Archbold: 31- 107

Child

The definition of a child was altered from 16 to 18 years' by section 45(1) of the Sexual Offences Act 2003, in force from 01 May 2004. The relevance to most prosecutions contrary to section 1 PCA 1978 or section 160 CJA 1988 will be limited. Archbold: 31- 107a and 31 - 116

The age of a child is ultimately for the jury to determine. It is a finding of fact for the jury, and expert evidence is inadmissible on the subject, since it is not a subject requiring the assistance of experts R v Land [1998] 1 Cr.App.R. 301, CA. [Note: Section 2(3) of the Protection of Children Act 1978] Inevitably, direct evidence of age is rare, and the straightforward approach established by the Court of Appeal is welcome.

The interpretation section refines this basic approach with respect to 'pseudo-photographs': 'if the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult' (PCA 1978 section 7(8)). Archbold: 31- 107

Section 1(1) of the Protection of Children Act 1978 creates a number of offences:

(a) to take, permit to be taken, or to make any indecent photograph or pseudo-photograph of a child; or

(b) to distribute or show such indecent photograph or pseudo-photograph; 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.

Section 1 has been given a wide interpretation by the courts. See Relevant Case Law below. These are either way offences with a maximum term of imprisonment of ten years if convicted on indictment.

The potential criminal liability of police officers and other forensic professionals to make or distribute material in the context of criminal investigation have been remedied by section 46 of the Sexual Offences Act 2003, which inserts s.1B into PCA 1978, and the associated Memorandum of Understanding between the CPS and ACPO. Follow link to the Memorandum of Understanding

Elements of the Offence

For an offence under section 1 PCA 1978 the prosecution has to prove:

1) That the defendant deliberately and/or knowingly either made, took, or permitted to be taken, distributed or showed indecent photographs or pseudo-photographs, or possessed them with a view to their being distributed or shown, published or caused to be published an advertisement for indecent photographs.

2) The photograph or pseudo-photograph was indecent. Indecent photograph includes an indecent film, or a copy of a photograph or film, or computer data capable of conversion into a photo a copy. See s.7 of PCA 1978. The test for indecency is for the jury to decide based on what is the recognised standard of propriety. R v Stamford [1972] 2 Q.B. 391. The circumstances and motive of the defendant are not relevant to the question of indecency, although they may be relevant to the question of whether the photograph was deliberately taken or made, R v Graham-Kerr, 88 Cr.App.R. 302, CA; R v. Smethurst [2002] 1 Cr.App.R. 6, CA. Archbold: 31- 114

3) The photograph was of a child. Section 7(6) of the Protection of Children Act 1978 states that a child is a person under the age of 18. Archbold: 31- 114

Section 1(1)(d) Protection of Children Act 1978 - advertising indecent photographs

This offence consists of publishing or causing to be published an advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs.

Internet newsgroup names constitute an advertisement and therefore Internet Service Providers (ISP's) risk prosecution for advertising news groups with names, which imply or declare that child pornography is likely to be found within. The defences outlined in section 1(4) Protection of Children Act 1978 do not apply to section 1(1) (d). Archbold: 31- 107

Publication can be "passive" and an ISP that facilitates the transmission of an indecent photograph of a child by storing it may be liable under section 3 Protection of Children Act 1978 as the publisher of the material. A publisher of an advertisement may be guilty of aiding and abetting the offence or of incitement to commit criminal offences, or other offences depending on the circumstances of each case.

To ensure that ISPs are aware of the third party content they are carrying, the police or Internet Watch Foundation should notify the ISP concerned and request that they stop advertising/publishing such material.

To prove an offence contrary to section 1(1) (d) Protection of Children Act 1978 you do not have to show that there is an indecent photograph of a child in existence. It is sufficient if the advertisement is likely to be understood as conveying that the advertiser distributes or shows such indecent photographs.

Since the Protection of Children Act 1978 only applies to images, the title of the newsgroup and what it purports to contain should be looked at carefully. Newsgroups that do not contain images but do contain text are not subject to the Protection of Children Act 1978. A decision to prosecute in such cases will hinge on whether the newsgroup is advertising itself as containing "images"; if it is not advertising itself as such, an offence contrary to the Obscene Publications Act 1959 may have been committed. Prosecutors should have regard to the guidance in the Attorney General's Guidelines on the Acceptance of Pleas.

The Protection of Children Act 1978 and section 160 Criminal Justice Act 1988 deal only with indecent photographs and pseudo- photographs of children. Other statues therefore, have to be used to prosecute offences involving drawings, sound and text-based stories. The primary law in relation to this is the Obscene Publication Act 1959, (the test is does the material have a tendency to "deprave and corrupt?") Follow link to the guidance on the Obscene Publication Act 1959

New offences relating to associated actual conduct with children were created by sections 10, 11, and 48-50 of the Sexual Offences Act 2003 [Note: See "Prostitution or Abuse? The Sexual Offences Act 2003"; Gillespie [2005] Crim.L.R. 285], and there are of course other offences where the internet may be the vehicle of communication under that Act, such as arranging or facilitating the commission of a child sex offence (section 14), and the "grooming" offence under section 15. Follow Link to Sexual Offences Act guidance

Link to guidance on obscenity

Link to protocol on child abuse

Defences

Section 1 Protection of Children Act 1978

The only defences to section 1(1)(a) and (d) of the Protection of Children Act 1978 are those contained within s.1A (marriage, etc., of a child aged 16 or 17) or s.1B (exception for criminal proceedings and investigations, etc). Archbold: 31- 107

Section 1 (4) Protection of Children Act 1978 provides two defences to the offences listed in section 1 (b) (distribute or show) and (c) (possess with a view to their being distributed or shown) Protection of Children Act 1978. Archbold: 31- 107. The first is legitimate reason, the second defence is that the defendant had not himself seen the photos and did not know, or have any cause to suspect them to be indecent.

The defendant may suggest that he was looking at adult pornography sites, or even sites not connected with pornography at all, when child pornography sites popped up on the screen uninvited. Although this is possible, in order to refute such a defence your expert witness can show how often the defendant visited such sites and whether he saved the indecent images.

The defendant may suggest that someone else has access to the computer and has created the images. The police should always cover this in interview with the defendant. If others do have access, eg other family members or colleagues, then caution is needed. But it may be that the defendant has his own password to gain access to the computer or to the particular site on which the images have been found, or there maybe some other supporting evidence.

Section 160 Criminal Justice Act 1988

Section 160 Criminal Justice Act 1988 covers the offence of possession of an indecent photograph of a child. There are four defences to this offence, three are listed at section 160(2) Criminal Justice Act 1988 Archbold: 31- 115 and one is listed in section 160A. Three of these defences are very similar to those that apply to some of the offences under s.1 PCA 1978, i.e. marriage, etc of a child aged 16 or 17, legitimate reason, and the defendant's lack of knowledge. The fourth defence, which is not found in the PCA 1978, is that the photograph or pseudo-photograph was sent to him without any prior request made by him on his behalf, and he did not keep it for an unreasonable time.

For the mental element that the prosecution must prove; and what appears to be a photograph or pseudo-photograph see Atkins V DPP; Goodlands v DPP [2000] 2 Cr.App.R. 248 Archbold: 31- 115 although this now needs to be read in the context of the Court of Appeal judgment of R v Porter [2006] EWCA Crim 560.

Atkins V DPP is significant, in particular with respect to (1) computers with multiple users, where there is no forensic evidence as to which user accessed a site, and (2) prosecutions relating to possession of material stored within automatically generated areas of the hard drive. Forensic examination of the hard drive can usually identify what material is held within the temporary internet file, and assuming the identity of the user is known, such material may equally attract a charge of 'making' each such image without the need to prove knowledge of the automatic cache. If a user is demonstrated (e.g. by admission, or by proof he has accessed the temporary internet file off-line) to have known of the existence and effect of automatic operating software, the offence of possession may arise. Archbold: 31- 118

However in R v Porter the Court of Appeal held that an image will only be considered in possession if the defendant had "the custody or control of the image at that time. If at the time of possession the image is beyond his control, then...he will not possess it". This has implication for the use of forensic examinations if an image has been deleted, "possession" will depend on whether the defendant had the know-how and the software to allow him to retrieve the image. Where, however, the offender admits that he downloaded the image or accessed it on the Internet then a charge of 'making' under section 1 may arise. Archbold: 31- 118

Defence of legitimate reason

'Legitimate reason' is not defined anywhere in the Act. It follows that a particular defendant may advance a range of possibilities for any admitted possession of such material. The provision clearly afforded (prior to section 46 SOA 2003, which introduced an exception for criminal proceedings and investigations) a defence to any party within the criminal justice system who of necessity must have possession of evidential material. There is, of course, no licence to an individual prosecutor or expert to retain material beyond the proper requirements of a particular case.

A defendant claiming 'legitimate reason' is presumed to admit possession of the qualifying material. The language of the Act appears to place both the evidential and legal burdens upon the defendant and following Sheldrake v DPP; A-G Ref (No 4 of 2002) [2005] 1 A.C. 264 it is likely that this will be accepted. As with other such defences that must be raised and proved by a defendant, the standard of proof is civil, namely that the defendant has established that 'it is more likely than not' that there was a legitimate reason for his possession of material.

Subsection 160(2) (c)

The defendant must prove both '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'. The Act does not prescribe what constitutes a 'prior request', nor does it define the parameters of 'unreasonable time'. In particular, it is not clear whether time runs from when the image was received by the computer, or when it was known by a defendant to have been received. Consistent with the necessary mental element, the latter is likely. Archbold: 31- 119

Relevant Case Law

There have been some landmark cases that have applied the Protection of Children Act 1978 Act and Section 160 of the CJA 1988 with varying effect; the most important ones are listed below. Archbold: 31- 108a

The age of a child is ultimately for the jury to determine. See R v Land [1998] 1 Cr. App. R. 301 Archbold: 31- 109 and R v Charles William Owen (1988) 86 Cr. App. R. 291 Archbold: 31- 108a

In the case of Fellows and Arnold [1997] 1 Cr App R 244 providing another with a password to enable him to access pornographic data stored on a computer was said to be 'showing' him the data. In R v Dooley [2006] 1 WLR 775 the Court of Appeal considered whether leaving an image in the "my shared folder" when using "peer-to-peer" software was sufficient for a person to be in "possession of an image with a view to it being shown or distributed" (section 1(1) (c)).

The downloading and/or printing of computer data of indecent images of children from the internet, is capable of amounting to an offence of "making" the image contrary to section 1 (1) (a) of the Protection of Children Act 1978. See R v Bowden [2000] 1 Cr.App.R. 438 Archbold: 31- 108a

The case of R v Westgarth Smith; Jayson, [2002] EWCA Crim 683 stated that downloading an image that was capable of being converted into a photograph on to a screen or opening an email attachment is an act of making that image, subject to the requisite mens rea Archbold: 31- 108a

Atkins V DPP; Goodlands v DPP [2000] 2 Cr.App.R. 248 stated that knowledge was an essential ingredient of the offences of "making" and /or possessing indecent photographs of children. Atkins also dealt with the legitimate reason defence. Archbold: 31- 108a

In R v Collier [2005] 1 WLR 843 the Court of Appeal noted that the prosecution have a heavier burden under section 1 Protection of Children Act than they do under section 160 Criminal justice Act. Since there is a statutory defence to section 160 the prosecution need only prove that the defendant was knowingly in possession of an indecent image of a child and the defendant would then have to prove that he had not seen the image and did not know, or have cause to suspect, that it was an indecent image of a child. Under section 1(1)(a) and (d) however no such statutory defence applies and so the prosecution need to prove not only that the defendant knowingly made an indecent image of a child but also that the defendant knew it was, or was likely to be, of a child (i.e. the onus is on the prosecution not the defence) - see [2004] Crim LR 1039-1041 for a useful summary and critique of the implications of this.

In R (on behalf of O'Shea) v Coventry Magistrates' Court [2004] EWHC Admin 905 the Divisional Court accepted that it was possible to incite another to distribute indecent images of children even where the 'purchase' of images was a fully-automated process.

The case of R v Oliver, Hartrey and Baldwin Times Law Report, 6 December 2002 divided indecent images of children into five categories, and gave sentencing guidelines based on the categories. The sentencing guidelines have been amended by guidance from the Sentencing Advisory Panel.

In R v Porter to have possession of an image you should have custody or control of it.

Jurisdiction

The general rule used to be that English courts did not accept jurisdiction over offences committed outside England and Wales. That general rule is now subject to a number of statutory exceptions, as the UK has extended its jurisdiction to become extra-territorial for specified offences, and has made special provision for the determination of where the actus reus of the offence took place.

The starting points for jurisdictional matters are the provisions of the Sexual Offences (Conspiracy and Incitement) Act 1996 and section 72 of the Sexual Offences Act 2003 (in force from 01 May 2004). Section 72 of the Sexual Offences Act 2003 confers extra-territorial jurisdiction on the courts of England and Wales in respect of offences contrary to the Protection of Children Act 1978 and section 160 of the Criminal Justice Act 1988 Archbold 2-36b - 36c. Section 72 states that any act, done by a person in a country or territory outside the United Kingdom, shall constitute a sexual offence under the law of the United Kingdom if: it would constitute an offence under the law in force in that territory; and it would constitute a sexual offence to which the Act applies if it had been done in England and Wales or in Northern Ireland.

Where images originating on foreign websites are downloaded for viewing in the United Kingdom, the act of making is obviously within the jurisdiction of the United Kingdom: In the case of R v Waddon 6 April 2000 Court of Appeal the court held that the content of American websites could come under British jurisdiction when downloaded in the United Kingdom. See also R v Perrin [2002] 4 Archbold News 2, CA which is specifically concerned with 'publishing' electronic data under the Obscene Publications Act 1959. Archbold: 31- 73

Prosecutors should be aware that it is not a criminal offence in the United States of America to make, distribute, or possess indecent pseudo photographs of children.

An attempt to commit a crime is triable in England provided the completed offence would have been triable here if the attempt had succeeded: Director of Public Prosecutions v. Stonehouse [1978] A.C. 55.

A conspiracy to do something in England and Wales, even if no overt act pursuant to the conspiracy is done here, is justiciable: Liangsiriprasert v. Government of the United States [1991] A.C. 225.

Inciting someone outside of the jurisdiction to distribute indecent images of children within the jurisdiction of the courts in England and Wales can be tried in the United Kingdom because the incitement takes place in this country. The case of R (on behalf of O'Shea) v Coventry Magistrates' Court [2004] EWHC Admin 905 is a useful example of this principle - here the applicant was part of Operation Ore and had subscribed to the 'Landslide Productions' website based in the USA.

It is anticipated that cases relying on the extension of jurisdiction will of necessity involve close CPS - police liaison from an early stage in the investigation.

Link to guidance on International Issues - Evidence and Information from Abroad.

Charging Practice

The Code for Crown Prosecutors advises prosecutors to select charges which reflect the seriousness of the offending; give the court adequate sentencing powers; and enable the case to be presented in a clear and simple way. When pleas are offered, Crown Prosecutors must bear in mind the fact that ancillary orders can be made with some offences, but not others.

Choice of charge and acceptance of pleas

Where indecent photographs/pseudo photographs of children are found on the suspect's computer system or other property, the usual choice of charge is likely to be one of "making" an indecent photograph of a child contrary to section 1(1) (a) of the Protection of Children Act 1978 or possessing such images contrary to section 160 of the Criminal Justice Act 1988. An advantage of charging "making" rather than "possession" of an indecent photograph of a child in such cases is the absence of a defence (except in a very limited category- link to Defences above) to a charge of "making".

The maximum penalty for "making" was increased on the 11th January 2001 from three years imprisonment to ten years. If the indecent images of children recovered were made before the 11th January 2001 and the prosecutor is of the view that the then maximum three year penalty is inadequate, the prosecutor should consider charging the defendant with "possession" of the indecent images at the date of the seizure (if the date of the seizure is after the 11th January 2001). A prosecutor may decide to do this because the maximum penalty for the "possession" of the indecent image is five years imprisonment.

Where an offence has been committed after the 4th April 2005 (the date when the Criminal Justice Act 2003 came into force) different sentencing provisions arise between sections 1 and 160 (link to Extended Licence Provisions below). This may influence the reviewing lawyer's choice between section 160 Criminal Justice Act 1988 and section 1 Protection of Children Act 1978 in a "possession" case. Where the offences were committed before the 4th April 2005 then section 1 is a "sexual offence" within the meaning of section 161(2) of the Powers of Criminal Courts (Sentencing) Act 2000 Archbold: 5- 2 and so the judge has extra sentencing powers. It is therefore vital that the dates are known for any charges. Key dates are:

11th January 2001 - increase in sentencing powers.

1st May 2004 - date the Sexual Offences Act 2003 came into force.

4th April 2005 - date Part 12 of the Criminal Justice Act 2003 came into force.

Where a date is not specified then the court will have no option but to choose the date most favourable to the defendant. Possession is, of course, a continuing offence and where it is not certain at what date an image was made, taken or distributed then recourse to section 160 may be necessary.

Offences by corporations

See section 3 Protection of Children Act 1978, with familiar provisions as to culpability (consent, connivance or neglect) of qualifying company officers, and Archbold 31-110

Specimen charges

The practice of charging specimen counts was ended by the case of R v Kidd, R v Canavan, R v Shaw [1998] 1 WLR 604 which stated that a defendant "should be sentenced only for an offence proved against him or which he has admitted and asked the court to take into consideration when passing sentence. Crown Court Judges may disapprove of indictments containing too many counts. In charging an offence of 'making' where there are a large number of images an average of 16 counts is advisable. In order to ensure that the Judge has sufficient sentencing powers consider charging the remaining images as a possession offence contrary to section 160.

If the defendant is charged with possession of images contrary to Section 160 CJA 1988, it may well be possible to treat the possession of one file containing numerous images as a single offence. This would not be a suitable solution to an offence of "making" as each act of downloading may have to be treated as a separate offence unless you can argue it is a single continuing or continuous offence.

Following R v Kidd indictments have become necessarily longer to reflect the overall seriousness of the offending and to allow for adequate sentencing powers. It is essential that we have sufficient counts on the indictment to ensure that the courts have adequate information to sentence appropriately. In deciding how many counts are appropriate prosecutors should have regard to the case of R v Oliver, R v Hartrey and R v Baldwin [2003] 1 Cr App R 28. .See also R v Thompson [2004] and Archbold 31-117, which gives detail on drafting the indictment, and see Mode of Trial below. Reference should also be made to the Sentencing Guideline Council's definitive Guidelines on offences under the Sexual Offences Act 2003 (see Part 6A). Counts in such cases should span the categories of images, looking at the nature and types of the images, the number of the images and also the time period of the offending. It is important that any representation of the quantity of images in each level is accurate (see R v Feuer [2005] EWCA Crim 2415) and care should be taken when preparing a schedule or inviting a police officer to testify as to the quantity and classification of the images.

Link to indictment, elsewhere on the intranet

Incitement Charge

In dealing with the offence of incitement to distribute an indecent photograph of a child contrary to section 1(1) (b) of the Protection of Children Act 1978, prosecutors should be aware that incitement requires another person to be incited; it is not possible to incite a machine. Although it is not possible to incite a machine, the position is different where, through human agency, an automated process which involves the commission of an offence is established, and where the actions of the inciter encourage the continued existence of the automated process (see R (on behalf of O'Shea v Coventry Magistrates' Court [2004] EWHC Admin 905)).

The offence of incitement is committed irrespective of whether the person incited responded by committing an offence. The terms of the incitement must be communicated to the person incited, or to someone who may fairly be considered to be the object of the incitement, and where there is no such communication the offence may be an attempt to incite. The mens rea requirement is that the accused should intend that the person incited commit the crime that he is being persuaded or encouraged to perform. See the case of R v Goldman [2001] EWCA Crim 1684 that sets out the elements of inciting another to distribute indecent photographs. See also DPP v Armstrong (Andrew) [2000] Crim.L.R 379. Archbold: 31- 108a

ECHR

There has not been a successful human rights challenge to section 1 Protection of Children Act 1978. The defendant in R v Bowden [2000] 2 WLR 1083 argued that his rights under Article 8 of the European Convention on Human Rights (private and family life) had been violated. In R v Smethurst [2002] 1 Cr App R 6 Articles 8 and 10 (freedom of expression) were argued. Archbold: 16- 119

The appeals of both Bowden and Smethurst were dismissed as the court held that Articles 8 and 10 are qualified rights and the protection of children as envisaged by section 1(1) Protection of Children Act 1978 was a justifiable limitation of those rights. Archbold: 31- 108a

The European Court of Human Rights has arguably confirmed this approach in its ruling in O'Carroll v United Kingdom (2005) 41 EHRR SE1 where the European Court ruled inadmissible a complaint regarding a conviction under section 170(2)(b), Customs and Excise Management Act 1979. The applicant had been convicted of importing an indecent image of a child. The applicant sought to argue that the common law definition of "indecent" was not certain and thus contrary to the Convention. The European Court rejected this argument and declared the complaint inadmissible.

Consent To Prosecute

Offences contrary to Section 1 of the Protection of Children Act 1978 and Section 160 of the Criminal Justice Act 1988 require the consent of the DPP for the institution of proceedings.

A Crown Prosecutor can give consent on behalf of the Director of Public Prosecutions by virtue of Section 1(7) Prosecution of Offences Act 1985. Consent cannot be implied merely because the CPS is conducting proceedings. A Crown Prosecutor must specifically consider the case and decide whether or not proceedings should be instituted or continued. The decision to grant consent is in all cases to be taken applying the principles of the Code for Crown Prosecutors and CPS policies.

Consent cases should be reviewed at the earliest possible opportunity. If the case is submitted for pre-charge advice and a decision is made to prosecute, consent should be obtained or given at that stage. The police may ask you to consent on behalf of the DPP over the telephone; prosecutors should not do this, as they will need to review the case in accordance with the Code and consent should always be given in writing. If an offence is to be started by summons then consent must be given before the information is laid; the information must state that it is laid on behalf of the DPP. If the defendant has already been charged, consent must be obtained in either way offences before or at mode of trial.

Link to consent to prosecute, elsewhere on intranet

Consent should be in writing, and the form should endorse:

  • Relevant statute
  • Defendant's name and address
  • Date of consent
  • Name of lawyer consenting

The consent need not specify either a section of the Act or the process of reasoning leading to the consent. These are complicating distractions from the basic consent. It is good practice to prepare a separate form for each defendant in multi-handed matters. The consent form should be kept. Where there is no form of consent to reflect the decision, evidence from the party who originally gave consent is admissible to prove the fact of consent. [Note: Price v Humphries [1958] 2 All ER 725]

Procedure - Pre-Trial

Mode of Trial

The sentencing guidelines from the Sentencing Guidelines Council should be applied in determining mode of trial for cases involving indecent photographs or pseudo-photographs of children. Guidance on how this should be interpreted was set out in R v Thompson [2004] 2 Cr App R 16 where it was said that the following practice should be followed when drafting indictments (Archbold 31-117):

  • where there was a significant number of photographs in addition to the specified counts, a comprehensive count should be given.
  • the photographs used in the counts should, if practicable, be representative of the images in the comprehensive count.
  • where (ii) is impracticable an approximate breakdown of the images into the Oliver categories should be given.
  • each of the counts should say whether it is a real or pseudo image; the same count should not charge both. Where there is dispute they should be alternative counts.
  • each image in the count should be referred to by its ".JPG", file name, or other reference.
  • the court should be provided with the approximate age of the child in each image in the counts.

Point (iv) above will not always be possible and the police interview should, where possible and relevant, seek to explore this issue.

In looking at the nature of the material the Sentencing Guidelines Council has categorised such material into five levels of seriousness with level five being the most serious.

Level one - Images of erotic posing, with no sexual activity,

Level two - non -penetrative sexual activities between children, or solo masturbation by a child;

Level three - non-penetrative sexual activity between adults and children;

Level four - penetrative sexual activity involving a child or children, or both children and adults;

Level five - sadism or involving the penetration of, or by, an animal.

The aggravating and mitigating factors set out in R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28 remain relevant. The court in Oliver stated that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it. The seriousness of an individual offence increases with the offender's proximity to, and responsibility for the original abuse.

The age of the child is now an aggravating factor and police officers should be encouraged to ensure that images are divided not only according to the categories set out above but also as to whether the child is under 13 years, or 13-15 years and 16-17 years old.

When dealing with cases involving thousands of images police officers have approached the CPS in order to determine at what point they can stop looking at images. The CPS has consistently stated that all images in the possession of the police should be viewed. If the police decide not to view all the images that is a risk analysis only they are able to take. There is of course always the danger that if only 100,000 images out of 500,000 are viewed that image 101,000 may show the suspect abusing a child.

The revised five-point scale answers one of the criticisms that had previously been leveled against it, that being that penetrative activity between minors has been raised from level 2 to level 4, an important and significant change. However it has failed to answer one criticism and raised a potential question. Level 1 images continue to refer to posing and the question has sometimes been raised as to whether that means that non-posed photographs, particularly those that could be construed as naturist photographs, are indecent or not. It is important to note that the sentencing guideline is relevant solely to the issue of sentence and not the law of what does, or does not, amount to an indecent photograph. In R v O'Carroll [2003] EWCA Crim 2338 the Court of Appeal specifically stated that the original levels put forward in Oliver and, by implication, the revised levels in the definitive guideline do not bind a jury as to what is, or is not, indecent. The photographs in O'Carroll were naturist photographs and his conviction for importing indecent photographs was upheld. Accordingly non-posed photographs that are indecent can form counts on an indictment.

The second issue is one that has arisen from a change in wording. Level 5 of the original scale referred to sadism or bestiality. The new wording says, "Sadism or penetration of, or by, an animal". The change in wording was almost certainly to reflect the introduction of the new offence of intercourse with an animal (s.69, Sexual Offences Act 2003). However a question is raised as to what happens if a photograph shows a non-penetrative sexual act involving an animal (e.g. an animal licking the sexual organs of a child). A strict interpretation of level 5 would suggest that it could not come within that level but neither would it fit into any other level other than, conceivably, level 1.

It is submitted that it cannot have been the intention of the Sentencing Guidelines Council to reduce such images to level 1. The original advice of the Sentencing Advisory Panel was for levels 2-5 to equate to levels 7-10 of the original COPINE scale. Other than the change noted above (which was always based on a misconception of the COPINE typology) there is nothing to suggest that the definitive guideline intended anything to the contrary. The original COPINE level 10 refers to sexual activity involving an animal, i.e. activity not restricted to penetration. In the unlikely event an image is challenged as not being level 5 when it involves an animal, prosecutors should refer the judge to the original Advice, the definitive guideline and the original COPINE typology as this should demonstrate that such pictures remain at level 5 images.

Disclosure

Prosecutors will need to ensure that all material is reviewed in accordance with the duties imposed by the CPIA.

Link to disclosure, elsewhere on the intranet

Disclosure to defence

If the defendant's solicitor or counsel or expert (for any reason) wishes to view the indecent photographs/pseudo photographs or examine the defendant's hard drive, access to or the examination of such material should whenever possible take place at police premises.

Handling of Exhibits

Prosecutors should view the indecent photographs/pseudo photographs of children in order to ascertain whether there is sufficient evidence to provide a realistic prospect of conviction. Arrangements should be made with the police for such images to be viewed on the police officer's laptop or other computer equipment at a mutually agreeable location. A CD-ROM (or other media) containing indecent images of children should not in any circumstances be inserted into any CPS computer or laptop. It is undesirable for CPS prosecutors to take possession of indecent photographs of children. If it is deemed necessary to do so, such exhibits have to be dealt with as sensitive material, they should be kept in a safe and a log should be maintained recording dates accessed, by whom, length of time and the reason accessed.

Search, Seizure and Forfeiture

A justice of the peace may issue a warrant authorising a police officer to enter and search premises and seize indecent photographs or pseudo-photographs of children. Prior to the 1st April 2008, a justice of the peace to whom such articles were brought under section 4(3) of the Protection of Children Act 1978 can issue a summons requiring the occupier to attend and show cause why the articles should not be forfeited Archbold 31-112

Section 39 of the Police and Justice Act 2006 and Schedule 11 to the Act amend the Protection of Children Act 1978 to provide a mechanism to allow police to forfeit indecent photographs of children held by the police following any lawful seizure. The provisions came into effect on 1 April 2008 and provide an administrative regime to forfeit images where a decision not to proceed with a prosecution is made or where a caution is issued (it does this by replacing s.5 of the PCA 1978).

Section 39(6) of the Police and Justice Act 2006 states that the new forfeiture provisions apply regardless of whether the seizure took place before or after the commencement of the section (1st April 2008). Accordingly the provisions, in this regard, are fully retrospective. However the change to the meaning of "premises" (s.39 (2) (b), Police and Justice Act 2006) only applies to warrants made after the commencement date.

Prosecutors at court following the conviction of the defendant should always request forfeiture of indecent images of children using the Powers of Criminal Courts (Sentencing) Act 2000. The new administrative regime can be used to forfeit images in cases where the prosecutor at court has forgotten to ask for forfeiture of the images or where there is no conviction: for example where a caution has been given or charges dropped.

The reforms allow forfeiture of articles that are impossible to separate from legal data on a computer hard drive. They allow police to forfeit articles they believe are likely to be or contain indecent images of children. For example this will allow police to forfeit a vast collection of discs/videos without having to go through every single item, as long as they have reasonable grounds to believe they were or contained such images.

The Schedule gives the Courts, on appeal, the power to order forfeiture, return or separation of articles, including copying of legal data.

Procedure - Post-Trial

Notification

Part 2 of the Sexual Offences Act 2003 requires those convicted or cautioned for relevant sex offences, including offences contrary to section 1 of the Protection of Children's Act 1978 and section 160 Criminal Justice Act 1988, to notify the police of certain personal details including name, addresses and National Insurance Numbers. Any change of name or address or of staying away for a qualifying period must be notified to the police within three days. Offenders must also re-notify the police of their details annually. The police keep this information on what has become commonly known as the sex offenders' register on ViSOR. Archbold: 20- 268

Failure to register is an either-way offence punishable by a fine and / or a maximum of five years' imprisonment. Those who received a conditional or absolute discharge were not subject to the notification requirements under Part 1 of the Sex Offenders Act 1997. This is because section 14 of the Powers of Criminal Courts (Sentencing) Act 2000 states that a discharge is only a conviction for the purposes of the proceedings in which the order is made. (R v Longworth [2006] UKHL 1). However, following the Sex Offences Act 2003, a person who is conditionally discharged is subject to the requirements for the duration of the discharge. Those given an absolute discharge are not subject to the requirements.

The European court ruled in Ibbotson v UK (1998) 27 EHRR CD 332 that the requirement to register under part 1 of the Sex Offenders Act 1997 did not amount to a penalty within the meaning of Article 7.

In Adamson v UK 42293/98 the applicant stated that the requirement to register under part 1 of the Sex Offenders Act 1997 was a violation of Article 3, 5, 7 and 8 of the convention on Human Rights. The European Court ruled that these requirements in the Sex Offenders Act were not inconsistent with the Convention.

Other Preventative Orders

The Sexual Offences Act 2003 provides for a range of orders that are not all contingent upon criminal conviction. In criminal proceedings, or where a prosecution fails, there should be ongoing review of what, if any, application is appropriate.

Sections 80 to 103 make provision for "notification orders"; the court must make an order if conditions set out in section 96 are met. The effect of such an order is set out in section 98. The ability to apply for an interim notification order is set out in section 100. Provision to appeal to the crown court is made in either case by section 101. Notification orders apply only to those who have been convicted of an offence outside of in the UK.

Sexual Offences Prevention Orders

One of the most useful orders are Sexual Offences Prevention Orders (SOPO) is set out in sections 104 to 113 of the Sexual Offences Act 2003. A SOPO replaces two previous statutory provisions (sex offender orders, s.2 of the Crime and Disorder Act 1998 and restraining orders, s.5A, Sex Offenders Act 1997). A SOPO may be made upon application by a chief officer of the police to the Magistrates' Court or upon conviction. The order prohibits the offender from doing anything contained in the order and accordingly they may contain only restrictions, no affirmative duties. The use of SOPOs when an offender has been convicted of an offence under section 1 was confirmed by the Court of Appeal in R v Beaney [2004] 2 Cr App R (S) 82 and R v Collard [2004] EWCA Crim 1664. Prosecutors should always consider whether a SOPO would be desirable upon conviction.

Where the offender is dealt with in the Crown Court for an offence under section 1, prosecutors should consider whether an offender should be disqualified from working with children. Section 28, Criminal Justice and Court Services Act 2000 states that an offender must be disqualified from working with a child if a term of imprisonment of at least twelve months' imprisonment is imposed unless the court considers it unlikely that the offender will commit a further offence against a child. Section 29A provides the Crown Court with discretion to disqualify an offender where it believes that it "is likely that the individual will commit a further offence against a child." This must be for sentences of less than 12 months. Prosecutors should always consider whether to ask the court for a disqualification order.

Dangerous Offenders: Indeterminate Sentences and Extended Licence Provisions

For offences committed prior to 4th April 2005 (the date when Part 12 of the Criminal Justice Act 2003 came into force) an offence under section 1 was prescribed under s.85, Powers of Criminal Courts (Sentencing) Act 2000. This allowed a judge to impose an extended licence period. However it is important to note that it did not apply to offences under section 160.

For offences committed on or after the 4th April 2005 the position becomes more complicated. Both sections 1 and 160 are prescribed for the purposes of Part 12 (sections 224 to 336) of the Criminal Justice Act 2003, the "dangerousness" provisions. Section 1 is a "serious specified sexual offence" because it is punishable by ten years' imprisonment (ten years is the minimum sentence for an offence to qualify as "serious" for the purposes of Part 12). Accordingly, if a person is convicted of section 1 and is considered dangerous by the court then it can no longer impose an extended licence but must instead impose a sentence of imprisonment for public protection (an indeterminate sentence). The Court of Appeal has upheld a sentence of imprisonment for public protection in respect of section 1 in R v Duncan [2005] EWCA Crim 3594 although the Court has also quashed such sentences in other cases so it is still open to question as to how ready the courts will be to impose such sentences.

Where a person is charged under section 160 then this is a "specified sexual offence" but not a serious specified sexual offence, because it is punishable by five years' imprisonment and accordingly a court cannot impose a sentence of imprisonment for public protection but it can impose an extended licence period. Prosecutors should consider carefully the effect of Part 12 when considering which charges to bring.

Summary: Offences prior to 4th April 2005. Section 1 allows extended licence sentence, section 160 does not. Offences after 4th April 2005. Section 1 does not allow for an extended sentence but it does allow for imprisonment for public protection. Section 160 does allow for an extended sentence, but not for a sentence of imprisonment for public protection. It is important that prosecutors and counsel make clear in the indictment when the offence is alleged to have occurred.

Link to Sentencing Issues - Dangerous Offenders, elsewhere on the intranet

Forfeiture

Once a defendant has been found guilty of or pleaded guilty to possession or/and making pornographic photographs of children from the Internet, the prosecution can make an application for the forfeiture of the hard disks upon which those images were stored. In the case of Regina v Jonathan Aslett, Manchester Crown Court, 25 September 2002, Neutral Citation No: T2001/0383, the court was satisfied that it was impossible to be one hundred percent certain that all indecent material had been deleted from the computer hard disk, even if one directed the computer to make deletions of such material. The court in making the forfeiture order for the hard disk stated that there was no obligation on the part of the police to carry out deletions of images.

Useful Links

The ACPO "Good Practice Guide for Computer Based Electronic Evidence,"

ACPO/NCPE "Practice Advice on Investigating Indecent Images of Children on the Internet, 2005.

Guidance on investigating child abuse and safeguarding children, ACPO/NCPE, 2005. - Please note - This is a police document that can be obtained from the National Policing Imrpovement Agency.