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Prohibited Images of Children

The Law

Possession of Prohibited Images of children

Section 62 of the Coroners and Justice Act 2009 ('the Act') creates a new offence of possession of a prohibited image of a child, punishable by up to three years' imprisonment. This offence, came into force on the 6 April 2010 it is not retrospective and requires the DPP's consent.

Possession of a prohibited image is an either way offence and the maximum penalty on summary conviction is six months' imprisonment or a fine or both. On conviction on indictment, the maximum sentence is 3 years' imprisonment, a fine, or both.

This guidance is to assist prosecutors when making decisions on whether to prosecute for the offence of possession of a prohibited image of a child. This guidance should be read in conjunction with the Ministry of Justice circular 2010/06 on the key provisions of the Coroners and Justice Act 2009.

The offence is targeted at non-photographic images (this includes computer generated images (CGI's), cartoons, manga images and drawings) and therefore specifically excludes indecent photographs, or pseudo-photographs of children, as well as tracings or derivatives of photographs and pseudo-photographs.

Elements of the Offence

Section 62(1) makes it an offence to possess a prohibited image of a child. Section 62 (2) to (8) sets out the definition of possession of a prohibited image of a child.

In order for an image to be a "prohibited image", there are 3 elements that must be satisfied. An image must meet all 3 of the elements which are:

1. That the image is pornographic;
2. That the image is grossly offensive, disgusting, or otherwise of an obscene character; and
3. That the image focuses solely or principally on a child's genitals or anal region, or portrays any of the following acts:

  • the performance by a person of an act of intercourse or oral sex with or in the presence of a child
  • an act of masturbation by, of, involving or in the presence of a child
  • an act which involves penetration of the vagina or anus of a child with a part of a person's body or with anything else;
  • an act of penetration , in the presence of a child, of the vagina or anus of a person with a part of a person's body or with anything else;
  • the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
  • the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

The Act defines a 'pornographic image' as one which must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Whether this threshold has been met will be an issue for the magistrates, District Judge or jury to determine by looking at the image in question. It is not a question of the intentions of those who produced the image. Nor is it a question of the sexual arousal of the defendant.

Even if an image is pornographic, it will not be a prohibited image unless it also satisfies all the other aspects of the offence.

Where an individual image is held in a person's possession as part of a larger series of images, the question of whether it is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images. For example, a film where one image is taken out of context could be a prohibited image.

Grossly offensive, disgusting or otherwise of an obscene character (section 62 (c))

'Grossly offensive, disgusting or otherwise of an obscene character' are not intended to be read as three separate concepts. "Grossly offensive" and "disgusting" are examples of "an obscene character" and not alternatives to it. They are drawn from the ordinary dictionary definition of 'obscene' and are intended to convey a non-technical definition of that concept.

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Charging Practice

Prosecutors should select charges which reflect the seriousness and extent of the offending supported by the evidence; to give the court adequate sentencing powers; and enable the case to be presented in a clear and simple way. When pleas are offered, prosecutors must bear in mind that in very limited circumstances people convicted of this offence can be made subject to notification requirements under part 2 of the Sexual Offences Act 2003. Offenders must be aged 18 or above and receive a sentence of two years' imprisonment or more.

Choice of charge and acceptance of pleas

If the prosecutor is of the view that the suspect is in possession of an indecent photograph or pseudo-photograph of a child; the suspect should be charged with either an offence contrary to section 1 of the Protection of Children Act 1978 of making the image, or possessing such images contrary to section 160 of the Criminal Justice Act 1988. Prosecutors should refer to the legal guidance on Indecent photographs of children.

In cases where there is evidence that the suspect has published or distributed a prohibited image, prosecutors should consider whether they are able to charge the suspect with an offence contrary to the Obscene Publications Act 1959, rather than the new offence of possession of a prohibited image.

The case of R v Porter [2006] 1 WLR 2633 supports the view that, in normal circumstances, deleting images held on a computer is sufficient to divest oneself of possession of them. An exception would be where a person is shown to have intended to remain in control of an image even though he has deleted it - that will entail him having the capacity (through skill or software) to retrieve the image. Where images have been deleted prosecutors may wish to consider whether they can charge the suspect with possession of a prohibited image on a date between either the purchase of the computer (or reformatting) of the hard drive and the date that the computer was seized.

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Defences

Exclusion to the offence

Section 63 of the Act provides an exclusion from the offence for works classified by the British Board of Film Classification, (the BBFC), which is the designated authority under the Video Recordings Act 1984 (as repealed and revived by the Video Recordings Act 2010).

Subsection (2) defines the type of material that is excluded. An excluded image is one that forms part of a series of images contained in a recording of the whole or part of a classified work. In deciding whether an image does form part of such a series, subsection (5) clarifies that any alteration due to a technical defect, inadvertence or inclusion of extraneous material such as an advertisement is to be disregarded.

However, this exclusion for classified films does not apply if an image or images have been extracted from one or more classified films and the reason for their extraction appears to be solely or principally for the purposes of sexual arousal. This would be the case, for example, where a new video work has been created consisting of images from classified films. This question is determined by the same test as is set out in section 62, that is, by consideration of the image itself and the context in which it appears.

The exemption does not apply to films shown in cinemas (as opposed to the versions of such films which are classified for DVD or video release). The exemption ensures that members of the public are not at risk from prosecution. Possession does not arise in respect of viewing a film in the cinema. Cinema staff and others involved in the classification process will be covered by the defences in section 64.

General defences

The three general defences set out in section 64 are the same as for the possession of indecent images of children under section 160(2) of the Criminal Justice Act 1988 (CJA):

  • There is a defence of legitimate reason for the possession of these images;
  • In addition there is a defence that the person had not seen the images and did not know or have cause to suspect they were prohibited images;
    The person had received the images unsolicited and did not keep them for an unreasonable time.

Section 160 CJA did not define what a 'legitimate reason' was and it has not been defined in section 64 of the Act. The defences cover those who have a legitimate work reason for being in possession of the image. The burden of proof is on the defendant and it will be for the jury to decide whether the reason for the possession of these images is legitimate. For example police and prosecuting authorities properly handing such images in the course of their employment would ordinarily come within this defence.

Prosecutors should refer to the guidance on section 160(2) CJA in the legal guidance of Indecent photographs of children.

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Consent to Prosecute

The offence of possession of possession of a prohibited image of a child requires 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.
Link to Legal Guidance on Consents to Prosecute.

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Forfeiture

The existing powers of forfeiture will apply to prohibited images:

  • Section 143 Powers of Criminal Courts (Sentencing) Act 2000 will apply.
  • Under the Protection of Children Act 1978 (as amended by the Police & Justice Act 2006, section 39 Schedule 11), these provisions allow the police to forfeit indecent photographs of children and the equipment that stores them, following any lawful seizure without reference to the courts.

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Providers of Information Society Services

Section 68 and schedule 13 of the Act ensure that the Act is compliant with the e-Commerce Directive (the "Directive"). The Directive was implemented generically by the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (the "Regulations").

Schedule 13 paragraph 1 extends the territorial application of the offence by making it an offence for a service provider established in the United Kingdom to possess a prohibited image of a child in a European Economic Area (EEA) state which would constitute an offence if it were to be done in England and Wales. Schedule 13 paragraph 2 excludes service providers established in an EEA state from prosecution for the offence of possession of extreme pornographic images.

Schedule 13 paragraphs 3 and 4 of the Act limits the liability of internet service providers who carry out certain activities necessary for the operation of the internet.

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Useful Links

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