Indecent images law & legislation

The law and legislation

 

The two main legislative offence creating provisions are:

 

• Section 1 of the Protection of Children Act 1978; and

• Section 160 of the Criminal Justice Act 1988

 

Common Elements

Both provisions create offences in respect of:

 

• indecent

• photographs or pseudo-photographs of

• A child.

 

Indecent

This is an issue for the Court to decide in accordance with established standards of propriety. It is an objective test for the jury. The age of the child is a relevant consideration. The circumstances in which the photograph came to be taken and motive of the taker are not relevant; it is not the defendant's conduct which must be indecent but the photograph of the child which results from it.

 

Photographs and Pseudo-photographs

Photographs include photographs, negatives, film, copies, electronic images stored by any means, data stored on a computer that can convert into a photo and tracings or any other image.

 

Pseudo-photographs are images created by computer or otherwise which appear to be a photograph.

 

Child

A child is a person under 18.

 

A person is taken to have been a child at any material time if it appears from the evidence as a whole that he/she was then under the age of 18.

 

The age of a child is a finding of fact for the jury to determine. Expert evidence is inadmissible on the subject as it is not a subject requiring the assistance of experts.

 

If the impression conveyed by a pseudo-photograph is that the person shown is a child" then it shall be treated for the purpose of the offence as showing a child.

 

Section 1 of the Protection of Children Act 1978

This is an either way offence punishable on indictment with a maximum of 10 years imprisonment.

 

There are four sub-paragraphs under section 1(1) describing the conduct that is illegal in respect of indecent images of children.

 

Section 1(1)(a) to take, or permit to be taken or to make.

These words are given their natural and ordinary meaning. ‘Make’ is defined as “to cause to exist, to produce by action, to bring about”.

 

This section requires that there must be a deliberate and intentional act, done with the knowledge that the image is, or is likely to be, an indecent photograph or pseudo-photograph of a child

 

“To make” has been widely interpreted by the courts and can include the following:

 

• Opening an attachment to an email containing an image

• Downloading an image from a website onto a computer screen

• Storing an image in a directory on a computer

• Accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism

 

Section 1(1)(b) Distribute or show any such photograph

A person is to be regarded as distributing indecent photographs or pseudo-photographs if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

 

It should be noted that a person does have to be in possession of the images to be able to distribute or show them. ‘Possession’ does have a mental element that needs to be proved.

 

Section 1(1)(c) Have in his possession any such photograph with a view to it being distributed or shown by himself or others.

"Possession" involves both a physical and mental element. The physical element is that a person must have custody and control of the photographs in question. The mental element is knowledge – a defendant must knowingly have custody and control of the photographs. It is not necessary for the prosecution to prove that the defendant knew photographs in his / her possession were indecent photographs of a child.

 

The words "with a view to" requires that the distribution or showing must be at least one of the suspect’s purposes, but not necessarily his primary purpose.

 

Section 1(1)(d) Publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows any such photographs or intends to do so.

It must be proved that the defendant published the advertisement intentionally and knowingly.

 

Section 160 of the Criminal Justice Act 1988

This is an either way offence punishable on indictment with a maximum of five years' imprisonment.

 

“Possession”

The test to determine possession is set out in the following terms:

 

1. The images must be in the custody or control of the person i.e. so that they are capable of accessing, or in a position to retrieve the image(s); and

2. The person must have known that they possessed an image or group of images on the relevant device/devices. Knowledge of the content of those images is not required – the statutory defences deal with that.

 

The following considerations are particularly relevant in relation to deleted images:

 

1. Where the photos are stored on the device.

2. The means by which they could be retrieved in the sense set out above.

3. Whether the suspect has the wherewithal to retrieve them i.e. the technical knowledge/software/equipment required to do so.

 

Live-Streaming

In cases involving live-streaming, once an image or video has been viewed, there is no forensic trace left on the device used to view that image or video. A person who has merely viewed an image or video will not have retained any copy of it on their device. Nonetheless, it is submitted that they have ‘made’ an image by causing it to be displayed on that device.

 

In cases involving child sexual abuse, there are generally three types of methods used. Briefly, these are:

 

1. Overseas Pay-per-View

2. 'Chat Rooms'

3. Self-produced by children

 

Overseas Pay-per-View

This usually involves an organised network. Abuse of children is carried out abroad and can be streamed by offenders in the UK. This type of abuse is usually for financial gain – either by organised criminal networks and/or impoverished families. Prosecutors will consider obtaining suspects’ bank statements as small and irregular amounts paid frequently by UK-based customers to recipients in developing countries can be seen as a sign of this type of offending.

 

Chat Rooms

The use of chat rooms can also have cross-jurisdictional elements but can also just be UK based. This is where specific ‘rooms’ or ‘conferences’ are set up online for the purposes of showing child sexual abuse. Offenders can join the rooms, be invited to them or search them out. Abuse can be streamed live or involve pre-recorded abuse being shown. Often offenders can interact with each other in a variety of ways including directing the manner of the abuse.

 

Self-produced by children

This is becoming more prevalent with exploitation of children who stream images between their peers for ‘likes’.

 

Offending could fall into three categories:

 

1. An offender who shares and distributes images

2. An offender who actively participates in the live-streaming either by conversation or by sharing pictures of themselves reacting to the material; and

3. An offender who views the live-stream feed but does no more than view the images, not participating or sharing in any other manner.

 

Indecent Images of Children - The Defences

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Common Defences

• Legitimate Reason

• 'Lack of Awareness'

• Marriage and other relationships

 

Legitimate Reason

The defence is made out if the defendant proves that he had a legitimate reason for the conduct in question.

 

"Legitimate reason" is not defined, it is a pure question of fact in each case. In cases where it was maintained that the conduct was part of legitimate research, the central question will be whether the defendant was essentially a person with an unhealthy interest in indecent images acting under the pretence of undertaking research or, on the other hand, was a genuine researcher who had no alternative but to have such material in his possession.

 

 ‘Lack of Awareness’

The defence is made out if the defendant proves that he had not himself seen the photographs in question and did not know nor have any cause to suspect them to be indecent.

 

Marriage and Other Relationships

The defendant has to prove that (a) the photograph was of a child aged 16 or 17 and (b) at the time of the conduct in question he and the child were married or civil partners or lived together in an "enduring family relationship" and the photograph showed the child alone or with the defendant but nobody else.

 

In certain circumstances there is an additional requirement for the defendant to satisfy an evidential burden as to whether the child consented to the defendant's making, taking or possession (as the case may be) of the photograph or whether the defendant reasonably believed she consented. Additionally, in the case of section 1(1)(c) only, whether the defendant possessed the photograph with a view to it being distributed or shown to anyone other than the child.

 

Specific Defences to the Provisions

Section 1B Protection of Children Act 1978 – Criminal Proceedings and Investigations

This defence is applicable to an offence under s. 1(1)(a) PCA 1978 only.

 

The 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. 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.

 

Section 160(2)(c) Criminal Justice Act 1988 - Unsolicited Photographs

This defence applies to s. 160(1) CJA 1988 only.

 

The defence is made out if the defendant proves that the photograph in question was sent to him without any prior request 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. The issue of reasonableness is a matter for the jury to decide on the facts of any particular case.

 

Charging ‘Possession’ or Charging ‘Making’?

It must be considered what needs to be proved in respect of possession of the images. Much will depend on (a) the location of the images on the device (b) how they came to be located there and (c) how accessible/viewable they are in that location without specialist knowledge or software. By way of example:

 

• A person who views an image on a device, which is then automatically cached onto its memory, would not be in possession of that image unless it can be proved that he / she knew of the cache.

• A person who downloads an image from the internet and then deletes it such that it is ultimately recovered in the unallocated space or clusters will not be in possession of that image unless it can be proved that he / she has the wherewithal to retrieve it.

 

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 consider whether they can charge the suspect with possession of an indecent / 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.

 

In each example, the person could still be found to have "made" the image in question. The charge of 'making' is widely interpreted to cover such activities as opening attachments to emails and downloading or simply viewing images on the internet. By contrast, the same conduct often cannot lead to a possession charge.

 

Unallocated space or clusters

When you create a new file on your device, the operating system finds available space and allocates that space to the file. Unallocated space or ‘clusters’ is space that is not allocated to active files within a file system.

 

Even if an image is located in ‘unallocated clusters’ and cannot be retrieved, provided it can be proved that the image was downloaded or in some way transferred onto the device, a charge of ‘making’ an indecent image can follow. Evidence of the search terms used by a person and the dates of searches for indecent material can be used to establish a case for the making of indecent images.

 

Deprivation and Forfeiture

The court can make a deprivation order where it is satisfied that any property (seized from him or in his possession) has been used for the purpose of committing or facilitating the commission of any offence, or where the court is satisfied that the offence (being sentenced or taken into consideration upon sentence), consists of unlawful possession of property which was in his possession or under his control at the time when he was apprehended.

 

Public Interest and Out of Court Disposals

A prosecution will usually take place unless there are public interest factors against prosecution which outweigh those in favour.

 

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.

 

Before offering a caution, the prosecutor must apply his or her mind to the public interest factors. Every case should be decided upon its own facts.

 

A caution is unlikely to be a suitable method of disposal in cases where indecent images of children are found on the suspect's device. Similarly, conditional cautions may be considered but are unlikely to be a suitable method of disposal. The lowest starting point stated in the sentencing guidelines is a high-level community order. The lowest starting point where conditional cautions are normally considered are at medium-level or below.

 

Prosecutors should consider whether a prosecution is required in the public interest and/or whether an out of court disposal is appropriate, where youth offenders are concerned, applying the CPS guidance on Youth Offenders. This is particularly the case where children make and/or share images of themselves, depending on the circumstances.

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Indecent images is a very complex area of law, by taking specialist, confidential and non-judgemental advice you can take back control of the situation and reduce unnecessary stress and anxiety. Contact me now.

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