Indecent photographs of children
- The Law
- Relevant Case Law
- Indecent Tracings
- Offences by corporations
- Charging Practice
- Human Rights
- Consent to Prosecute
- Procedure - Pre-Trial
- Procedure - Post-Trial
- Useful Links/Information
The two main offence provisions in this area are section 1 of the Protection of Children Act 1978 (PCA 1978) and section 160 of the Criminal Justice Act 1988 (CJA 1988). The PCA 1978 addresses certain aspects of the sexual exploitation of children by penalizing the making, distribution, showing and advertisement of indecent photographs of them. The test to be applied in respect of indecent images of children is whether or not it is indecent. The word 'indecent' has not been defined by the PCA 1978, but case law has said that it is for the jury to decide based on the recognized standards of propriety.
Section 1 PCA1978 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 (section 7(8) PCA 1978). Archbold 31 - 114.
The PCA 1978 and section 160 CJA 1988 deal only with indecent photographs and pseudo-photographs of children. Other statues therefore, have to be used to prosecute offences involving drawings (see guidance on Prohibited Images of Children), 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'?). See the guidance on Obscene Publications.
Offences relating to associated actual conduct with children are contained in sections 10, 11 and 48 - 50 of the Sexual Offences Act 2003. 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. See the Legal Guidance Sexual Offences Act 2003.
Section 1 Protection of Children Act 1978
Section 1(1) of the PCA 1978 creates a number of offences and has been given a wide interpretation by the courts. These are either way offences with a maximum term of imprisonment of ten years if convicted on indictment.
For an offence under section 1 PCA 1978 the prosecution has to prove:
- 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.
- 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 section 7 PCA 1978. The test for indecency is for the jury to decide based on what is the recognized standard of propriety. R v Stamford  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  1 Cr App R 6, CA. Archbold 31 - 114.
- The photograph or pseudo-photograph was of a child section 7(6) of the PCA 1978. Archbold 31 - 114. 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 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  1 Cr App R 301, CA. See also section 2(3) PCA 1978.
In dealing with the offence of incitement to distribute an indecent photograph of a child contrary to section 1(1)(b) PCA 1978, prosecutors should be aware that incitement requires another person to be incited; 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  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  EWCA Crim 1684 that sets out the elements of inciting another to distribute indecent photographs. See also DPP v Armstrong (Andrew)  Crim L R 379. Archbold 31 - 108a.
Section 1 Protection of Children Act 1978
The only defences to section 1(1)(a) and section 1(1)(d) of the PCA 1978 are those contained within:
- section 1A PCA which covers marriage, etc. of a child aged 16 or 17) or
- section 1B PCA as amended by section 46 of the Sexual Offences Act 2003, which is an exception for criminal proceedings and investigations etc.
The section 1B 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. Archbold 31 - 107a and 31 - 107b.
This reverse burden defence is intended to allow people instructed to act for the defence or prosecution who need to be able to identify and act on the receipt of an indecent photograph or pseudo-photograph, to deal with such images. This defence will also apply to defence solicitors, counsel, police officers, prosecutors, Judges and others who have to deal with indecent images of children in the course of their work etc.
The CPS and Association of Chief Police Officers (ACPO) signed a Memorandum of Understanding in 2004 which provides guidance to those who have a legitimate need to handle indecent images of children by setting out how the defence provided in section 1B PCA 1978 may be applied. The Memorandum provides guidance to the Police Service, CPS and others involved in the internet industry, in order to create the right balance between protecting children and effective investigation and prosecution of offences. Follow link to the Memorandum of Understanding.
Section 1(4) PCA 1978 provides two defences to the offences listed in section 1(1)(b) (distribute or show) and section 1(1)(c) (possess with a view to their being distributed or shown) PCA 1978. Archbold 31- 107.
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. 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, e.g. 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.
The issue of pseudo photographs versus prohibited images
CPS guidance to prosecutors states that where indecent images of children are involved we prosecute such offences with the PCA 1978 or section 160 CJA 1988. A query has been raised as to the difference between a pseudo-photograph and Prohibited Images of Children. The answer is if an image if printed would look like a photograph or a pseudo-photograph then it should be prosecuted as such. For example some high quality computer generated indecent images if printed may look like a photograph (or pseudo-photograph) and should be prosecuted contrary to PCA 1978 or section 160 of the CJA 1988.
Section 160 Criminal Justice Act 1988
Section 160 CJA 1988 covers the offence of possession of an indecent photograph of a child. There are four defences to this offence: three are listed in section 160(2) CJA 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 section 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 the defendant without any prior request made by him 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  2 Cr App R 248, Archbold 31- 118. This needs to be read in the context of the Court of Appeal judgment of R v Porter  EWCA Crim 560.
Atkins v DPP is significant, in particular with respect to:
- Computers with multiple users, where there is no forensic evidence as to which user accessed a site, and
- 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 that 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.
In R v Porter the Court of Appeal held that an image will only be considered in possession if the defendant had 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 or 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 PCA 1978 may arise. Archbold 31 - 118.
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.
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; Attorney General's Reference No 4 of 2002  1 AC 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.
There have been some landmark cases that have applied the PCA 1978 and section 160 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  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  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.
The downloading and/or printing 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 PCA 1978. See R v Bowden  1 Cr App R 438, Archbold 31 - 108a.
Atkins v DPP; Goodlands v DPP  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 v DPP also dealt with the legitimate reason defence. Archbold 31 - 108a.
The case of R v Westgarth Smith; Jayson  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.
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 Council.
In R (on behalf of O'Shea) v Coventry Magistrates' Court  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.
In R v Porter  EWCA Crim 560 to have possession of an image you should have custody or control of it.
Crown Prosecution Service v LR  EWCA Crim 924 see Disclosure to defence
Where an indecent image is of a child; prosecutors should charge the suspect with an offence contrary to section 1 PCA 1978 or section 160 CJA 1988 and not a charge of extreme pornography. See R v Stephen Neal  EWCA Crim 461 where the Court of Appeal held that it was unfair for an individual purchaser of a book to be prosecuted for possession of photographs in that book when the publisher and / or the retailer were not prosecuted.
Section 69 Criminal Justice and Immigration Act 2008 extends the remit of the indecent photographs legislation (both section1 PCA 1978 and section 160 CJA 1988) by amending the meaning of photograph within section 7 PCA 1978 to include derivatives of photographs, such as tracings or other forms of data. The amendment came into force on the 8 July 2008.
Prosecutors have to prove that the image is derived (either in whole or in part) from a photograph or pseudo-photograph. The police will have to gather sufficient evidence from evidence recovered at the scene and/or use computer facial recognition packages to identify whether an image is a known photograph. It is important there is evidence that it is a tracing and not, for example, a freehand drawing which would be outside of the scope of this provision.
The police have reported that some offenders have been caught with traced pictures. The offender (or some other person) takes a photograph and traces the outline of that photograph onto tracing paper and from there to a piece of paper. They then colour in the tracing and destroy the photograph.
Tracings are not restricted to the old-fashioned technique however and technology has altered the way that a tracing could be produced. A scanner and appropriate software can 'trace' a photograph and digitally produce the results. This can then be coloured in or manipulated in the same way as a photograph.
Some mobile telephones have effects built into them so that when they take a photograph it produces a tracing rather than a full photograph. If the phone was seized with the image it produced, it could legitimately be said to be a photograph (because it was taken on a camera); and charged as a section 1 PCA 1978 (or section 160 CJA 1988) offence. If the image was sent to someone else or printed out it would be technically difficult to prove that this was a photograph.
The reference in section 7 PCA 1978 to images other than tracings is designed to cover electronic conversions. Most basic scanner or graphic manipulation packages can turn photographs into different types of 'art' including cartoons, paintings, drawings, etc. All are, of course, simply effects, often produced by taking the principal features or blurring lines, etc. However the same limitations as discussed above would occur.
Where a person possesses an image not knowing that it is, a tracing, for example: D downloads what he thinks is a hand-drawn picture from the Internet (and accordingly legal) but in fact it is (unbeknown to him) a tracing. He is probably not guilty of possession under section 160 CJA 1988 as the courts will interpret section 160(2)(b) to provide a defence. Certainly the wording of section 160(2)(b) when read in conjunction with PCA 1978 could entitle the courts to argue that the defence exists where a person does not know, nor has any cause to believe, that he is in possession of an indecent photograph, pseudo-photograph or tracing of a child. Whilst it would be ordinarily difficult to argue that someone would not know they were in possession of a photograph or pseudo-photograph the same cannot be said of tracings.
Whilst it may be unlikely to result in many prosecutions, section 7 PCA 1978 does mean that where the police identify tracings they can now use their revised powers of forfeiture (PCA 1978 as amended by section 39 Police and Justice Act 2006), which is perhaps the most useful aspect of the legislative change. See Search, Seizure and Forfeiture below.
See section 3 PCA 1978, with familiar provisions as to culpability (consent, connivance or neglect) of qualifying company officers, and Archbold 31-110.
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 (SOA 2003) in force from 01 May 2004. Section 72 of the SOA 2003 confers extra-territorial jurisdiction on the courts of England and Wales in respect of offences contrary to the PCA 1978 and section 160 of the CJA 1988 Archbold 2 - 36b to 2 - 36f.
Where images originating on foreign websites are downloaded for viewing in the United Kingdom, the act of making is 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  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 necessarily 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: DPP v Stonehouse  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  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  EWHC Admin 905 is a useful example of this principle.
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 Obtaining Evidence and Information from Abroad:
The overriding principle is that in cases involving indecent images of children when making charging decisions, prosecutors should view the indecent images (or a proportion of them).
Importance of viewing indecent images of children
Generally, in cases involving indecent images of children, there is no substitute for the prosecutor viewing the images (or a proportion of them), in order that an assessment can be made of the evidence.
Due to current technical limitations and the sensitivity of the evidence, it is not always possible to view the images during the initial period of detention and this can cause delay in cases that are otherwise ready to charge and could proceed to court to be dealt with the next day or for an application to remand into custody.
Conditions to be met for charging without seeing the visual evidence
Pending development of a technical solution, where it is not practicable for the images to be viewed personally by the prosecutor making a charging decision, the prosecutor may consider accepting a written summary from a police officer describing the images.
The prosecutor's approach to assessing the evidence
The prosecutor must then exercise judgement as to whether it is appropriate in all the circumstances to make the charging decision relying on the summary.
The summary should be accepted unless the prosecutor concludes the charging decision cannot properly be made without viewing the material, although cases where the images are alleged to be at Level 1(images of erotic posing, with no sexual activity) only are likely to be ones where a viewing of the images would be essential pre-charge.
Preparation of summaries by police officers
Summaries should be provided in report form on the MG3 or a separate report attached to the MG3 and provided with the case papers to the prosecutor making the charging decision.
Actions by the charging prosecutor
The prosecutor making the charging decision will make a note on the MG3 that the images have not been viewed prior to the making of the charging decision. Once a decision is made to prosecute, the DPP's consent to prosecute should be given and the appropriate form of consent should be completed and placed on the case file. Guidance to Consents to Prosecute.
Actions post charging by the CPS Area
An Area prosecutor should ensure that the indecent images, or a proportion of them, are viewed by secure means (note: not by e-mail) as soon as possible. They should then be assessed against the summary provided by the police and it should be determined whether it is appropriate for the case to proceed on the basis of the original decision. This should be recorded as a review note on the file and on CMS.
Serious discrepancies between the indecent images of children viewed and the summary provided by the police must be reported to line management who will refer the matter to police line managers.
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 PCA 1978 or possessing such images contrary to section 160 of the CJA 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 decision by the police to administer a caution will ordinarily be made in conjunction with the CPS. although the police do, theoretically, retain a right to administer a caution. An offence contrary to section 1 PCA or section 160 CJA 1988 is not eligible for a conditional caution.
The prosecutor before offering a caution must apply his or her mind to the public interest factors. Every case should be decided upon its own facts.
In applying the public interest stage of the Full Code Test, a caution is unlikely to be a suitable method of disposal in cases where indecent images of children are found on the suspect's computer.
Cases that may be appropriate for a caution (subject to the application of the Code) are cases where indecent images of children are not found on the suspect's computer, but the suspect admits to having previously accessed such sites to obtain indecent images of children.
Link to Cautioning and Diversion.
The practice of charging specimen counts was ended by the case of R v Kidd, R v Canavan, R v Shaw  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 CJA 1988.
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  1 Cr App R 28. See also R v Thompson  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 Council's Sexual Offences Act 2003 definitive guidelines (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  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.
The Criminal Procedure (Amendment) Rules 2007 came into force from 2 April 2007.
The Amendment Rules revoke the Indictment Rules 1971 and consolidate them within Part 14 of the Criminal Procedure Rules 2010.
The rules allow a prosecutor, in certain circumstances, to bring a single charge against a defendant even though that includes more than one incident of the offence alleged. The rules are supplemented by a Practice Direction giving guidance on when a multiple incident count under rule 14 may be appropriate and when it may be appropriate to apply for a two-stage trial.
Form and content: duplicity and "multiple incidents" counts
Rule 14.2 concerns the form and content of the indictment. The main and most important change to this rule is Rule 14.2(2). This is a revision of what is often called the "rule against duplicity".
The rule against duplicity requires that only one offence should be charged in any single count. The rule has been developed at common law to allow, in certain circumstances, a single count to be charged in relation to distinct criminal acts which occurred on two or more occasions. The circumstance in which such a practice is permissible is to be regarded as a continuing offence.
The question of whether an offence amounts to a continuous offence depends on the circumstances of each case and is one of fact and degree. The common law has also developed the concept of "general deficiency" which is most commonly used in cases of theft where the evidence does not disclose the precise dates and amounts of each taking but where it is clear on the evidence that a large amount of property has been stolen.
The Rule in 14.2 has been reformulated to make it clear that it includes the concepts of a "continuous offence" and "general deficiency" and provides prosecutors with greater latitude to include within a single count offending behaviour occurring on two or more occasions.
This Rule allows the prosecution to charge, where appropriate, a single count to embrace repeated behaviour to reflect the totality of the offending. For example, where D has laundered the proceeds of drug trafficking in comparatively small weekly sums for week after week, or has sexually assaulted the same victim in the same way repeatedly over a period of time.
Prosecutors are reminded that sections 17-21 of the Domestic Violence, Crime and Victims Act 2004 (multiple offending - trial by jury and then by judge alone) is concerned with multiple separate offences and not where multiple incidents amount to a continuous offence. Full guidance on the process can be found in Prosecuting Multiple Offending: Two Stage Trials.
The Rule is compatible with ECHR because an accused person will be aware of the allegation made against him by reference to the initial charge, the indictment and other supporting materials (statements, exhibits, prosecution opening). Full guidance on Drafting the Indictment can be found in the Indictments section of the Legal Guidance.
There has not yet been a successful human rights challenge to section 1 PCA 1978. The defendant in R v Bowden  2 WLR 1083 argued that his rights under Article 8 (private and family life) of the European Convention on Human Rights (ECHR) had been violated. In R v Smethurst  1 Cr App R 6 Articles 8 and 10 (freedom of expression) were argued. 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) PCA 1978 was a justifiable limitation of those rights.
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 rejected the argument and 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.
Consent To Prosecute
Offences contrary to section 1 PCA 1978 and section 160 CJA 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 Consents to Prosecute elsewhere in the Legal Guidance.
Procedure - Pre-Trial
The sentencing guidelines from the Sentencing Council (formerly 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  2 Cr App R 16 where it was said that the following practice should be followed when drafting indictments (Archbold 31 - 117).
In looking at the nature of the material the Sentencing 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  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. It is a matter for the police to decide how many images to view. 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 100,001 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 erotic 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 what does, or does not, amount to an indecent photograph.
In R v O'Carroll  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 (section 69 SOA 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 cannot have been the intention of the Sentencing 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 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.
Prosecutors will need to ensure that all material is reviewed in accordance with the duties imposed by the CPIA.
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, the prosecution should provide the defence with suitable access to the relevant material. Such access must enable the defendant to have private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS. Whenever possible, such access should take place either on police premises, or at the offices of either the defendant's solicitors or the offices of the defence or prosecution expert. The accused should, of course, only be permitted access whilst in the company of their legal representative.
Prosecutors should remember that defence solicitors have a duty to defend their clients properly, whilst law enforcement agencies have a duty to ensure that they do not unnecessarily create more indecent images of children or compromise sensitive confidential material. See the case of Crown Prosecution Service v LR  EWCA Crim 924.
It will not always be the case that the defence need full access to a forensic computer image. Likewise it may not always be appropriate for law enforcement agencies to deny access to a forensic computer image.
When the issue arises as to the disclosure of such material, in order to decide whether or not to release such material, the following approach should be adopted:
a) In cases involving a request for a technical examination of the evidence, a meeting should take place between defence and prosecution technical experts in order to agree what should be supplied. If it is necessary the defence technical witness may be given private (or controlled) facilities to examine the images at law enforcement premises at reasonable hours.
b) If the person in charge of the investigation considers it necessary, then the work may take place other than at police premises if the defence technical witness signs an appropriate undertaking.
c) If the defence team cannot for good reason view the indecent images at a police station, for example in cases where the defendant is in custody, the prosecution should correspond with the defence in order too agree access to the indecent images by the defence team. Such access can be at an appropriate venue for example a court, the defence solicitor's office or counsel's chambers etc.
d) In situations (a), (b) and (c) above, where no agreement is reached, the case should be referred to the court to hear argument and, if necessary, issue appropriate directions.
e) If the court directs that copies of the indecent images should be supplied to the defence solicitor or counsel, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the solicitor or counsel signing an undertaking as to the safe custody and control of the image etc
In the case of a technical witness, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the technical witness signing an undertaking as to the safe custody and control of the image etc.
For a copy of a draft undertaking see Memorandum of Understanding - indecent photographs of children. Breach of the undertaking may leave the signatory open to prosecution and disciplinary action from their professional body.
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, i.e. as having a protective marking of Confidential, 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.
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 1 April 2008, a justice of the peace to whom such articles were brought under section 4(3) of the PCA 1978 could issue a summons requiring the occupier to attend and show cause why the articles should not be forfeited.
Section 39 of the Police and Justice Act 2006 and Schedule 11 to the Act amend the PCA 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. Archbold 31 - 112.
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 (1 April 2008). Accordingly the provisions, in this regard, are fully retrospective. However the change to the meaning of 'premises' (section 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.
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 R 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.
Schedule 11 of the Act gives the Courts, on appeal, the power to order forfeiture, return or separation of articles, including copying of legal data.
Procedure - Post-Trial
Part 2 of the SOA 2003 requires those convicted or cautioned for relevant sex offences, including offences contrary to section 1 PCA 1978 and section 160 CJA 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 the Dangerous Persons Database ViSOR, in what has become commonly known as the sex offenders' register. 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  UKHL 1). However, following the SOA 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 ECHR.
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.
The SOA 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 SOA 2003 make provision for 'notification orders'; the court must make an order if conditions set out in section 96 SOA 2003 are met. The effect of such an order is set out in section 98 SOA 2003. The ability to apply for an interim notification order is set out in section 100 SOA 2003. Provision to appeal to the crown court is made in either case by section 101 SOA 2003. Notification orders apply only to those who have been convicted of an offence outside of the UK (see section 97 SOA 2003).
One of the most useful orders is a Sexual Offences Prevention Order (SOPO) as set out in sections 104 to 113 of the SOA 2003. A SOPO replaces two previous statutory provisions (sex offender orders, section 2 of the Crime and Disorder Act 1998 and restraining orders, section 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 PCA 1978 was confirmed by the Court of Appeal in R v Beaney  2 Cr App R (S) 82 and R v Collard  EWCA Crim 1664. Prosecutors should always consider whether a SOPO would be desirable upon conviction.
The case of R v Hemsley  EWCA Crim 225 reinforces the fact that there are no standard conditions that should routinely be sought for a SOPO in cases involving indecent images of children.
Police and prosecutors in each case need to think about whether a SOPO is necessary for the purposes of protecting the public or any particular members of the public from serious sexual harm from the defendant (section 104 SOA 2003). If a SOPO is deemed necessary then prosecutors should seek conditions that are clear, avoid wide conditions and minimise the risk(s) identified in the case. Prosecutors should remember that breach of an order is a criminal offence and so when drafting the prohibitions they should be sufficiently clear and precise.
The Court of Appeal has stated that: (see case of R v Terrell  2 Cr. App. R. (s) 49) "supporting and therefore tending to perpetuate a market or distribution network for indecent images may encourage others to commission, take or create images which may involve the causing of serious sexual harm to children. In a case of this type therefore the making of a SOPO may be necessary so as to protect against that risk." In R v Beaney  2 Cr App R (S) 82 the Court of Appeal said that downloading indecent photographs of children could cause serious psychological harm to children. Both of these points were conceded in R v Hemsley.
When drafting your conditions, consider the following which have been accepted in a number of cases; however the necessity must be proven in each case:
- Not to use the internet for any purpose other than seeking employment, study, work, lawful recreation or the purchase of goods or services.
- Not to own or use, save at his place of employment or at a supervised facility open to the public, any computer with access to the internet which does not have a software programme designed to prevent access to child pornography installed and in operation.
Conditions that prevent employment or access to children maybe better left to be dealt with under the Safeguarding Vulnerable Groups Act 2006 (SVGA) the detailed provisions of which maybe better suited to manage risk in SOPO cases. Prosecutors should remember that the SVGA does not apply to offences committed prior to 20 January 2009. Care should be taken regarding dates cited on charges or indictment.
It has been common to try and formulate a prohibition that, in effect, allows the police to gain access to a person's property. A typical example is "not to refuse entry to a police officer to examine a computer". In Hemsley the Court of Appeal said that this was an "impermissible attempt to confer extensive powers of search and seizure upon the police". It is highly unlikely that these terms will be granted or, if they are, upheld on appeal. The requirement that a power is necessary will also make it more likely that these conditions are not acceptable since there is a statutory power (section 96B of the SOA 2003) that allows entry under these circumstances with a warrant obtained from a magistrate. It is difficult to see why a term in a SOPO is necessary when this statutory power exists (this is discussed by Alisdair Gillespie in Sexual Offences Prevention Order and the Right of Entry  Crim LR 576-580).
Whilst a SOPO can be for a determinate or indeterminate period of time, the Court of Appeal has recently stated that the duration of a SOPO should ordinarily mirror the period of time a person is subject to the notification requirements (see R v Hammond  EWCA Crim 1358 and R v Hemsley above). Where a person poses a more serious risk then a longer or even indefinite order can be imposed but prosecutors will have to show the evidence for this.
Where the offender is dealt with in the Crown Court for an offence under section 1 PCA 1978, prosecutors should consider whether an offender should be disqualified from working with children. See section 28 Criminal Justice and Court Services Act 2000. 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 4 April 2005 (the date when Part 12 of the Criminal Justice Act 2003 came into force) an offence under section 1 PCA 1978 was prescribed under section 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 CJA 1988.
For offences committed on or after 4 April 2005 the position becomes more complicated. Both sections 1 PCA 1978 and section 160 CJA 1988 are prescribed for the purposes of Part 12 (sections 224 to 336) of the Criminal Justice Act 2003, the 'dangerousness' provisions. Section 1 PCA 1978 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 PCA 1978 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 PCA 1978 in R v Duncan  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 CJA 1988 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 4 April 2005; section 1 PCA 1978 allows extended licence sentence, section 160 CJA 1988 does not. Offences after 4 April 2005; section 1 PCA 1978 does not allow for an extended sentence but it does allow for imprisonment for public protection. Section 160 CJA 1988 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 Dangerous Offenders, elsewhere in the Legal Guidance.
- The ACPO "Good Practice Guide for Computer Based Electronic Evidence"
- Guidance on investigating child abuse and safeguarding children ACPO/NPIA, Second edition 2009
- Link to CPS guidance on Prohibited Images of Children
- Link to CPS guidance on Obscene Publications
- Link to a Protocol between the CPS, Police and Local Authorities in the exchange of information in the investigation and prosecution of child abuse cases.