21 August 2009 

A discussion is needed precisely because 'everyone' knows that child porn is such a Bad Thing! Because it must be always be considered in this way, what are presented as attempts to combat it are being treated to little or no criticism. The courts are proving themselves too keen to convict – where laws do not exist to explicitly criminalize activities that the police find objectionable, the courts are happy to distort the legal process in order to facilitate convictions. The Courts have extended the "child porn" laws in unexpected and unlawful ways and, rather than correcting bad judicial decisions, parliament has added to them with bad law. When the Protection of Children Bill was put before parliament in 1977, it was treated with an amount of scepticism; now, an unthinking acceptance of the politically correct view that pornography itself constitutes abuse has infiltrated the entire legal system: when the Sexual Offences Bill was discussed, its provisions for child pornography were not treated with scepticism but rather with an eye to what was practical for the police to enforce – for example, clause 52(5) (on photographs created prior to commencement) did not make it into the Act and the provisions for photographs made (etc) with the child's consent were transmogrified into the positively Victorian exceptions for marriage and other relationships in section 45(3).
And then there is the fact that the police were authorised (by section 46) to create new simulated child pornography.

Micky mouse legislation... on 8 May 2008 the Criminal Justice and Immigration Bill received royal assent. This extended the definition of photographs so as to include "tracings" or other images derived from photographs and/or pseudo-photographs. To be caught by the new provisions, images must be derived from (parts of) existing photographs or pseudo-photographs, which seems to be an extremely unclear test. The provisions overlap and interact in a somewhat unclear way with the provisions of the Coroners and Justice Bill , which received royal assent on 12 November 2009, and outlaws the possession of "micky mouse porn". An image of a child of whatever nature may now be classed as "child porn". The next target is the written word...

I will here present an argument against the "child pornography" laws currently in operation in England. It will not be based on moral considerations – such as the proposition that the attempts to combat child porn are creating a brutish society or that people should not be criminalised simply for looking at pictures or that, since empirical research shows that "child abuse" is - on the whole - harmless, images of that "abuse" are probably also - on the whole - harmless.
Rather, my argument will be founded in an analysis of the law and its interpretation and an exposition of the weaknesses of both in terms of human rights principles.

Contents

• Provisions of English law on "child pornography"

• A human rights based analysis of English "child pornography" laws

• Contra Bowden
  I argue that the decision in R v Bowden is wrong and there is actually no offence of "making an indecent photograph of a child". The following articles constitute different aspects of an argument I hope supports this claim:
  • (Un)Lawfulness of the Bowden decision
  • Duplicitous use of the "making" charge
  • Are the police authorised to make child porn?
  • How are pseudo-photographs made?
  • Impossibility of electronic distribution

• Incitement to distribute indecent photographs of children
  An examination of the facts reveals that the prosecution does not understand the incitement charge and nor do the courts. Incitement is not an offence of strict liability but the courts are treating it as if it were.
  • Charges of incitement to distribute or show
  • A timeline of one instance of the incitement of Landslide
  • The strange case of Pete Townshend and the Daily Paper

• Get yourself arrested!
• Cases referred to
• References
• Details of copyright

Provisions of English law on "child pornography"

• the Protection of Children Act 1978 (PCA), which can be found
  • on the Statute Law Database
    • Protection of Children Act 1978
  • on this website:
    • as enacted
    • as amended by the Magistrates' Courts Act 1980
    • as amended by the Police and Criminal Evidence Act 1984
    • as amended by the Criminal Justice Act 1988
    • as amended by the Extradition Act 1989
    • as amended by the Criminal Justice and Public Order Act 1994
    • as amended by the Criminal Justice and Court Services Act 2000
    • as amended by the Courts Act 2003
    • as amended by the Sexual Offences Act 2003
    • as amended by the Civil Partnership Act 2004
    • as amended by the Police and Justice Act 2006
    • as amended by the Criminal Justice and Immigration Act 2008

      NB— see disclaimer.

• the Criminal Justice Act 1988, and
• the Sexual Offences Act 2003.

• the Magistrates' Courts Act 1980 (SLD – Statute Law Database)
• the Police and Criminal Evidence Act 1984 (SLD)
• the Extradition Act 1989 (OPSI)
• the Criminal Justice Act 1988 (OPSI),
• the Criminal Justice and Public order Act 1994 (OPSI),
• the Criminal Justice and Court Services Act 2000 (OPSI),
• the Courts Act 2003 (OPSI),
• the Sexual Offences Act 2003 (OPSI),
• the Civil Partnership Act 2004 (OPSI),
• the Police and Justice Act 2006 (OPSI) and
• the Criminal Justice and Immigration Act 2008 (OPSI).

Other relevant Acts:

• the Customs Laws Consolidation Act 1876,
• the Telecommunications Act 1984 and
• the Postal Services Act 2000

The introduction of the Protection of Children Act 1978

History of amendments

• Magistrates' Courts Act 1980

  Sch. 7 para. 171 amended section 6(3)(b)
  171. In section 6(3)(b) of the Protection of Children Act 1978 for "section 28 of the Criminal Law Act 1977" substitute "section 32 of the Magistrates' Courts Act 1980".

  6.—(3) A person convicted summarily of any offence under this Act shall be liable–
       (b) to a fine not exceeding the prescribed sum for the purposes of section 28 of the Criminal Law Act 1977 section 32 of the Magistrates' Courts Act 1980 (punishment on summary conviction of offences triable either way: £1,000 or other sum substituted by order under that Act), or to both.

• Police and Criminal Evidence Act 1984

  Section 119(2), Schedule 7 Part V of PACE repealed section 2(1)

• Extradition Act 1989

  Section 37, Schedule 2 of the Extradition Act 1989 repealed section 1(6).

• Criminal Justice Act 1988

  Section 170 of this Act amended the Protection of Children Act 1978 so as to remove some of the limitations on the issue of search warrants.
  60. The Protection of Children Act 1978 shall be amended as follows.
  61. (1) In subsection (1) of section 4 (entry, search and seizure) for the words from "are" to the end there shall be substituted the words "is an indecent photograph of a child".
      4.—(1) The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises in the petty sessions area for which he acts, there is an indecent photograph of a child are indecent photographs of children and that such photographs&ndash
          (a) are or have been taken there; or
          (b) are or have been shown there, or are kept there with a view to their being distributed or shown.

      (2) In subsection (2) of that section the words from "taken" to the end shall cease to have effect.

      (2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises within fourteen days from the date of the warrant, and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs of children taken or shown on the premises, or kept there with a view to their being distributed or shown.

  62. (1) In subsection (2) of section 5 (forfeiture) the words from "taken" to "distributed or shown," shall cease to have effect.
      (2) If the court is satisfied that the articles are in fact indecent photographs of children, taken on the premises or shown there or kept there with a view to their being distributed or shown, the court shall order them to be forfeited; but if the person summoned does not appear, the court shall not make an order unless service of the summons is proved.

      (2) In subsection (6) of that section, after "1(1)" there shall be inserted "or section 160 of the Criminal Justice Act 1988".

      (6) Where indecent photographs of children are seized under section 4 above, and a person is convicted under section 1(1) or section 160 of the Criminal Justice Act 1988 of offences in respect of those photographs, the court shall order them to be forfeited.

• Extradition Act 1989

  Schedule 2 repealed subsection 1(6).

• Criminal Justice and Public Order Act 1994

  This Act amended both the Protection of Children Act and the Criminal Justice Act 1988 so as to add the concept of pseudo-photography.
  Before being amended, section 1(1)(a) of the Protection of Children Act read–

  1.—1) It is an offence for a person–

  (a)	to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or

  Section 84(2)(a) of the Criminal Justice and Public Order, which amends s.1(1)(a) PCA, reads:

  84.— 2)	In section 1 (which penalises the taking and distribution of indecent photographs of children and related acts)–
  	(a)	in paragraph (a) of subsection (1)–
  		(i)	after the word "taken" there shall be inserted the words "or to make", and the words following "child" shall be omitted;
  		(ii)	after the word "photograph" there shall be inserted the words "or pseudo-photograph"

  and following these instructions:

  1. after the word "taken" there shall be inserted the words "or to make"

     It is an offence for a person–
            to take, or permit to be taken or to make, any indecent photograph of a child (meaning in this Act a person under the age of 16); or

  2. the words following "child" shall be omitted

     This leaves a question as to punctuation – see section 84(2)(a)(i) CJPOA, which amends s.160 of the Criminal Justice Act 1988 and reads:

     (a) in subsection (1), after the word "photograph" there shall be inserted the words "or pseudo-photograph" and the words from "(meaning" to "16)" shall be omitted; and

     Since this explicitly states that the characters "(" and ")" are to be removed from s.160 CJA, and s.(84)(2)(a)(i) CJPOA does not state that they should be removed from s.1(1)(a) PCA, does this mean they should remain in PCA?

     It is an offence for a person–
            to take, or permit to be taken or to make, any indecent photograph of a child (meaning in this Act a person under the age of 16); or

     There is also the question of the word "or", which links section (a) with section (b) in one sentence. Should this be removed as the instructions suggest?

  3. after the word "photograph" there shall be inserted the words "or pseudo-photograph"

     It is an offence for a person–
            to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child (meaning in this Act a person under the age of 16); or

  gives an amended version of s.1(1)(a) of the Protection of Children Act that reads:

  It is an offence for a person–
         to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child ();

  It should be noted that this does NOT accord with the version of s.1(1)(a) PCA given by the Court of Appeal in Bowden, which reads:

  It is an offence for a person–
         to take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child; or

  While the wording of the two versions of the provision may appear to be much the same, the punctuation radically changes the meaning. The version presented by the Court of Appeal is not the version arrived at by following the instructions in the Criminal Justice and Public Order Act 1994. This means it is not the legally correct version. The punctuation must be correct and in the form that the Criminal Justice and Public Order Act 1994 intended it to be.

  According to Cross, punctuation forms part of the statute and must be given the significance it has to the ordinary user of the English language. Lord Lowry is quoted as saying

  I consider that not to take account of punctuation disregards the reality that literate people, such as Parliamentary draftsmen, punctuate what they write, if not identically, at least in accordance with grammatical principles. Why should not other literate people, such as judges, look at the punctuation in order to interpret the meaning of the legislation as accepted by Parliament.

  Section 85(2) of CJPOA made offences under the 1978 Act arrestable offences while section 85(3) made them serious arrestable offences.
  CJPOA also removed the 14-day time limit on the exercise of warrants issued under PCA.

  Schedule 11, S.168(3) Repeals

  In section 4(2), the words from "within" to "warrant".

  (2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises within fourteen days from the date of the warrant, and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs of children.

  The Act received Royal Assent on 3 November 1994.

  Statutory Instrument 1995 No. 127 (C.4) established that sections 84 to 87 concerning obscene publications and indecent photographs of children came into force on 3 February 1995.

• Criminal Justice and Court Services Act 2000

  This Act amended the Protection of Children Act and the Criminal Justice Act 1988 so as to increase the available maximum sentences. By making the offence under section 160 of the 1988 Act triable on indictment (with a maximum sentence of 5 years), that offence was made an arrestable offence.

• Courts Act 2003

  The Act made changes to the powers of search and seizure.

• Sexual Offences Act 2003

  The Sexual Offences Act 2003 received Royal Assent on 20 November 2003; Statutory Instrument 2004 No. 874 set the commencement date of the 2003 Act as 1 May 2004. Section 45 of the 2003 Act amends the Protection of Children Act 1978 (and hence indirectly also the Criminal Justice Act 1988) so as to change the definition of a child so that "a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 18."

  This Act also amended both the Protection of Children Act and the Criminal Justice Act 1988 so as to add defences to charges of "making indecent photographs" or possession where the maker and the subject were in a marriage or pretend-marriage relationship.
  It also amended the Protection of Children Act 1978 to add a defence to a charge of "making an indecent photograph or pseudo-photograph" where to do so was necessary during a criminal investigation, etc.

• Civil Partnership Act 2004

  This Act amended the Protection of Children Act 1978 and the Criminal Justice Act 1988 so as to add civil partnerships to the defences created by the Sexual Offences Act 2003.

• Police And Justice Act 2006

  Section 39 amends sections 4 (entry, search and seizure) and 5 (forfeiture) and inserts a schedule into the Protection of Children Act 1978:
  39.—(2) In section 4 (entry, search and seizure)-
     (a) subsection (3) is omitted;
     (b) for subsection (4) there is substituted-
        "(4) In this section "premises" has the same meaning as in the Police and Criminal Evidence Act 1984 (see section 23 of that Act)."
  (3) For section 5 (forfeiture) there is substituted-

  "5 Forfeiture

  The Schedule to this Act makes provision about the forfeiture of indecent photographs and pseudo-photographs."

  (4) At the end of the Act there is inserted the Schedule set out in Schedule 11 to this Act.

• Criminal Justice and Immigration Act 2008

  Section 69(2)(a) amends section 1B(1)(b) to include the Secret Intelligence Service; section 69(3) extends the definition of photograph so as to include "tracings" or other images which are derived from photographs and/or pseudo-photographs; and section 69(4) corrects a drafting error. As per S.153(2)(b) of the 2008 Act, commencement was 8 July 2008 (2 months after introduction on 2 May 2008).

Statutory provisions

Offences under the various Acts

The Protection of Children Act 1978

Section 1 of the PCA, at its inception, was designed to deal with aspects of child pornography above and beyond simple possession. In its original form, the only verb used in Section 1 (1) (a) was "take". In 1988 by Section 160 of CJA the possession of indecent photographs became a summary offence. By 1990 society had become concerned that the law was inadequate to deal with the less desirable developments in computer technology. As a result Part VII of the Criminal Justice and Public Order Act 1994 (CJPOA) was enacted to amend particulars of existing legislation.

As amended, the PCA makes it an offence for a person:-

Creation	(a)	to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or Note:- A photograph is taken One "permits a photograph" to be taken when one is in a position to forbid it A pseudo-photograph is made As a result of the case of Bowden, a photograph can also be made; this implies that the true construction of section 1(a) is as follows– It is an offence for a person to– take permit to be taken make     any indecent     1. photograph or 2. pseudo-photograph  of a child This gives rise to 6 offences – A1–Taking an indecent photograph of a child B1–Permitting another to take an indecent photograph of a child C2–Making an indecent pseudo-photograph of a child C1–Making an indecent photograph of a child A2–Taking an indecent pseudo-photograph of a child B2–Permitting another to take an indecent pseudo-photograph of a child See also:- Duplicitous use of the "making" charge
Dissemination	(b)	to distribute or show such indecent photographs or pseudo-photographs; or Note:- According to section 1(2), a person is to be regarded as distributing an indecent photograph if he parts with possession of it to, or exposes or offers it for acquisition by another person "parts with possession" has the obvious meaning "exposes or offers it for acquisition" means to offer to sell an indecent photograph of a child or offer to give it away; for an example of similar usage, see section 3 of the City of Westminster Act 1999; "expose" does not mean show - if it did, there would be no need for s.1(1)(b) to target "showing". Nor is "exposing or offering for acquisition" advertising (s.1(1)(d)), since an advertisement is not published. However, a person "exposing or offering" would be committing the s.1(1)(c) offence of "possessing with intent" - the exposure or offer would constitute evidence of intent. Unlike the s.1(1)(d) offence of advertising, both the s.1.1(b) distributing and s.1.(1)(c) possession offences require the person to be in possession of an indecent photograph of a child. The s.1.(1)(d) advertising offence is complete once the advertisement is published As stated in R v T (1999), there is no offence of showing an indecent film of a child only to oneself; this must also apply to photographs As pointed out in the case of Dr Paul Grout, distributing and showing are distinct offences
Possession with intent	(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 Note:- Intent is an element over and above possession and needs to be proved by the prosecution
Advertisement	(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. Note:- The s.1.(1)(d) advertising offence is complete once the advertisement is published – there is no requirement that the advertiser must possess any indecent photographs if an advertiser does possess indecent photographs, he would probably also have committed the s.1.1(c) possession offence – the advertisement would probably constitute evidence of intent

Criminal Justice Act 1988

Sexual Offences Act 2003

Criminal Attempts Act 1981

The section applies to indictable offences.

Offences under the Protection of Children Act 1978 are triable on indictment, as are offences under Section 160 of the Criminal Justice Act 1988 and ss. 48, 49 & 50 of the Sexual Offences Act 2003.

It is therefore an offence under the Criminal Attempts Act to –

• Protection of Children Act 1978
  1. Attempt to take an indecent photograph of a child
  2. Attempt to permit another to take an indecent photograph of a child
  3. Attempt to make an indecent pseudo-photograph of a child
  4. Attempt to make an indecent photograph of a child
  5. Attempt to take an indecent pseudo-photograph of a child
  6. Attempt to permit another to take an indecent pseudo-photograph of a child
  7. Attempt to distribute an indecent photograph or pseudo-photograph of a child
  8. Attempt to show an indecent photograph or pseudo-photograph of a child
  9. Attempt to possess an indecent photograph or pseudo-photograph of a child with an intention that it be distributed or shown
  10. Attempt to publish an advertisement suggesting that an indecent photograph or pseudo-photograph of a child will be distributed or shown
  
  
• Criminal Justice Act 1988
  1. Attempt to possess an indecent photograph or pseudo-photograph of a child
  
  
• Sexual Offences Act 2003
  1. Attempt to cause child pornography
  2. Attempt to incite child pornography
  3. Attempt to control a child involved in pornography
  4. Attempt to arrange child pornography
  5. Attempt to facilitate child pornography
  
  
• Common law offences
  Since
  1. common law offences can be tried on indictment;
  2. section 1(1) of the Criminal Attempts Act applies to indictable offences; and
  3. the offence of 'Attempting to incite' was upheld in R v Goldman (2001),
  it is an offence under the Criminal Attempts Act to –
  • Protection of Children Act 1978
    1. Attempt to incite another to take an indecent photograph of a child
    2. Attempt to incite another to permit another to take an indecent photograph of a child
    3. Attempt to incite another to make an indecent pseudo-photograph of a child
    4. Attempt to incite another to make an indecent photograph of a child
    5. Attempt to incite another to take an indecent pseudo-photograph of a child
    6. Attempt to incite another to permit another to take an indecent pseudo-photograph of a child
    7. Attempt to incite another to distribute an indecent photograph or pseudo-photograph of a child
    8. Attempt to incite another to show an indecent photograph or pseudo-photograph of a child
    9. Attempt to incite another to possess an indecent photograph or pseudo-photograph of a child with an intention that it be distributed or shown
    10. Attempt to incite another to publish an advertisement suggesting that an indecent photograph or pseudo-photograph of a child will be distributed or shown
    
    
  • Criminal Justice Act 1988
    1. Attempt to incite another to possess an indecent photograph or pseudo-photograph of a child
    
    
  • Sexual Offences Act 2003
    1. Attempt to incite another to cause child pornography
    2. Attempt to incite another to incite child pornography
    3. Attempt to incite another to control a child involved in pornography
    4. Attempt to incite another to arrange child pornography
    5. Attempt to incite another to facilitate child pornography

Customs Laws Consolidation Act 1876

In relation to the 1876 Act–

Customs and Excise Acts 1979

Penalty for fraudulent evasion of duty, etc

170.—	(1)	Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person–
		(a)	knowingly acquires possession of any of the following goods, that is to say–
			(i)	goods which have been unlawfully removed from a warehouse or Queen's warehouse;
			(ii)	goods which are chargeable with a duty which has not been paid;
			(iii)	goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force under or by virtue of any enactment; or
		(b)	is in any way knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any such goods,
		and does so with intent to defraud Her Majesty of any duty payable on the goods or to evade any such prohibition or restriction with respect to the goods he shall be guilty of an offence under this section and may be [arrested].
	(2)	Without prejudice to any other provision of the Customs and Excise Acts 1979, if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion–
		(a)	of any duty chargeable on the goods;
		(b)	of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment; or
		(c)	of any provision of the Customs and Excise Acts 1979 applicable to the goods,
		he shall be guilty of an offence under this section and may be [arrested].

Telecommunications Act 1984

Postal Services Act 2000

Arrestable Offences and Serious Arrestable Offences (PACE)

The Serious Organised Crime and Police Act 2005 amended section 24 of PACE to provide for arrest for any offence. It also amended sections 8, 18 and 32 to authorise searches for indictable offences.

Offences under both the Protection of Children Act 1978 and Criminal Justice Act 1988 can be tried on indictment. Search warrants can therefore be sought under PACE section 8 for all such offences, and searches can be authorised under sections 18 and 32.

The following is provided for historical purposes.

Arrestable offence Serious arrestable offence Protection of Children Act 1978 Arrestable offence Serious arrestable offence Criminal Justice Act 1988 Arrestable offence Sexual Offences Act 2003 Arrestable offence Arrestable offence PACE defined an arrestable offence as any offence for which the sentence was fixed by law, or one that can result in a sentence of 5 years or more. 24.– (1) The powers of summary arrest conferred by the following subsections shall apply – (a) to offences for which the sentence is fixed by law; (b) to offences for which a person of 21 years of age or over (not previously convicted) may be sentenced to imprisonment for a term of five years (or might be so sentenced but for the restrictions imposed by section 33 of the Magistrates' Courts Act 1980); and (c) to the offences to which subsection (2) below applies, and in this Act "arrestable offence" means any such offence. Serious arrestable offence PACE Section 116 and Schedule 5 Parts I and II, contained the definition of a serious arrestable offence. They included the most serious offences (murder, rape etc, but not robbery, burglary or many other offences commonly regarded as 'serious'), and also various other offences (including endangering safety at aerodromes and offences relating to supply of controlled drugs). An arrestable offence could become a serious arrestable offence if it was intended or likely to lead to serious harm to the security of the state or to public order, serious interference with the administration of justice or investigation of an offence, death, serious injury, substantial financial gain or serious financial loss. Protection of Children Act 1978 Arrestable offence Section 85(2) of the Criminal Justice and Public Order Act 1994 amended PACE s.24(2) to make offences under section 1 of the Protection of Children Act 1978 arrestable offences. Serious arrestable offence Section 85(3) of CJPOA amended PACE to make PCA s.1 offences serious arrestable offences. Criminal Justice Act 1988 Arrestable offence Section 41(3) of the Criminal Justice and Court Services Act 2000 amended section 160 of the Criminal Justice Act 1988 by adding a subsection 2A providing for conviction on trial by indictment subject to five years imprisonment, thereby bringing the offence into the arrestable offence category. Sexual Offences Act 2003 Arrestable offence The offences defined by ss. 48, 49 & 50 of the Sexual Offences Act 2003 attract maximum sentences of 14 years; this means that the offences are within the arrestable offences category.

Statutory defences

Legitimate reason

Marriage and other relationships

Note:- this defence does not apply to pseudo-photographs.

Protection of Children Act 1978

160A

Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he- (a) were married or civil partners of each other, or (b) lived together as partners in an enduring family relationship. (2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he- (a) were married or civil partners of each other, or (b) lived together as partners in an enduring family relationship. (3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person. (4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented."

Exception for criminal proceedings, investigations etc.

Note:- this defence does apply to pseudo-photographs. The effect of this is to authorise the police to make an indecent photograph or pseudo-photograph of a child in any manner whatsoever (save by camera). See also:- Are the police authorised to make child porn?

1B

Exception for criminal proceedings, investigations etc.

(1) In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that- (a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world, (b) at the time of the offence charged he was a member of the Security Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the Service, or (c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

Indecent photograph of a child

Indecent

See also:- Indecency

Photograph

Definitions

Film & video

Copy of a photograph

However, the Court of Appeal has held that there is nothing in the Act which makes it necessary that a copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. Therefore there is no restriction on the nature of a copy. A copy represents the original photograph in another form.

Indecent photograph of a child

Indecent pseudo-photograph of a child

Pseudo-photograph

Definition

Introduction of the concept of pseudo-photographs

Such developments included –

1. images scanned into, stored and distributed by computer; and
2. images actually created on computers.

The CPS therefore suggested that the 1978 Act be amended so that it expressly included composite images derived from photographs.

Subsections 84(2) and 84(3) of the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978 to create the offence of making an indecent pseudo-photograph of a child and to bring pseudo-photographs within the scope of the other offences under the 1978 and 1988 Acts.

Justification for the criminalisation of pseudo-photographs

• In evidence to the Home Affairs Select Committee, the Association of Chief Police Officers suggested that a conviction might be secured where a person had been found in possession of composite images but the court, police and accused were unaware that the images were not actually photographs; ACPO suggested that it was absurd that a conviction could be secured in such a case while the originator of the image could not be convicted.
• ACPO further suggested that such images would have to be criminalised or their existence would make impossible the prosecution of indecent real photographs since it would be difficult to distinguish between real and manipulated images: it was possible that, if manipulated photographs did not come within the legal definitions of photographs, a person would be able to claim that all images stored on a computer had been so modified and would thus escape conviction.
• Such images might lead to an investigation to ascertain whether or not the child shown in it was actually abused – this would obviously cause great distress to the child and family involved, and would be a waste of valuable police resources.
• Such images were said to excite paedophile tendencies in adults equally as much as real photographs.
• UK police were said to believe that those who make pseudo-photographs or possess them go on to abuse children – from that point of view, making or obtaining possession of pseudo-photographs are acts preparatory to abuse.
• Paedophiles were said to use photographs as a way of making children believe that "it's all right because other children do it too" and pseudo-photographs were thought to be just as suited to this purpose.

Making a pseudo-photograph

While the Act does not define how a pseudo-photograph is made, it does tell us how it is not made: a pseudo-photograph is not taken.

The Oxford Concise English Dictionary defines a photograph as "a picture made by a camera". A pseudo-photograph, then, is an image that appears to be a photograph but which was not made with a camera. It is a presumption of statutory interpretation that different words have different meanings and it was thought necessary to add the concept of pseudo-photography to the legislation. Since Parliament does nothing in vain, a pseudo-photograph is not a photograph.

Having the appearance of a photograph

A photograph does not appear to be a photograph, it simply is one. Despite all the tricks that a photographer can use (multiple exposures, unusual angles, time delay, etc), a photograph is taken to be a record of a state of affairs that actually existed at a particular time, even though that state of affairs might have been extremely fleeting. A photograph shows reality. Bearing in mind some of the arguments made in favour of the criminalisation of pseudo-photographs – in particular that a pseudo-photograph might lead to an investigation to ascertain whether or not the child shown in it was actually abused – it is clear that their main thrust is that a pseudo-photograph is a realistic image: a pseudo-photograph appears to show reality, but in actual fact depicts a state of affairs that never existed.

Note:- It is a presumption of statutory interpretation that different words have different meanings and it was thought necessary to add the concept of pseudo-photography to the legislation. Since Parliament does nothing in vain, a pseudo-photograph is not a photograph. See also:- What types of things can be pseudo-photographs? Duplicitous use of the "making" charge Are the police authorised to make child porn? How are pseudo-photographs made?

Definition of "child"

The Criminal Justice and Public Order Act 1994 deleted this definition and inserted a new subsection into the interpretation section –

7.–

(6)

'Child' [...] means a person under the age of 16

In order to make UK law comply with the United Nations Convention on the Rights of the Child and its Protocol on the sale of children, child prostitution and child pornography and also a European Council Framework Decision on combating the sexual exploitation of children and child pornography, section 45 of the Sexual Offences Act 2003 amended the Protection of Children Act 1978 so that a child is defined as a person under the age of 18. Subsections 2(3) and 7(6) are therefore amended to read: 2 (3)   In proceedings under this Act relating to indecent photographs of children a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 18. 7 (6) 'Child' [...] means a person under the age of 18.

Entry, search & seizure

Protection of Children Act 1978

	4.—	(1)	The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises, there is an indecent photograph or pseudo-photograph of a child.
		(2)	The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises, and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs or pseudo-photographs of children.

Police And Criminal Evidence Act 1984

Warrant

Power of justice of the peace to authorise entry and search of premises

8.—

(1)   If on an application made by a constable a justice of the peace is satisfied that there are reasonable grounds for believing - (a)   that an indictable offence has been committed; and (b) that there is material on premises mentioned in subsection (1A) below which is likely to be of substantial value (whether by itself or together with other material) to the investigation of the offence; and (c) that the material is likely to be relevant evidence; and (d) that it does not consist of or include items subject to legal privilege, excluded material or special procedure material; and (e) that any of the conditions specified in subsection (3) below applies, he may issue a warrant authorising a constable to enter and search the premises in relation to each set of premises specified in the application. (2) A constable may seize and retain anything for which a search has been authorised under subsection (1) above.

Arrest

Entry for purpose of arrest etc

17.—	(1)   Subject to the following provisions of this section, and without prejudice to any other enactment, a constable may enter and search any premises for the purpose - ... (b)  of arresting a person for an indictable offence;
Entry and search after arrest
18.—	(1)   Subject to the following provisions of this section, a constable may enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence, if he has reasonable grounds for suspecting that there is on the premises evidence, other than items subject to legal privilege, that relates – (a)   to that offence; or (b) to some other indictable offence which is connected with or similar to that offence. (2) A constable may seize and retain anything for which he may search under subsection (1) above.

Search upon arrest

32.—	(1)	A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.
	(2)	Subject to subsections (3) to (5) below, a constable shall also have power in any such case–     (b) if the offence for which he has been arrested is an indictable offence, to enter and search any premises in which he was when arrested or immediately before he was arrested for evidence relating to the offence.
	(3)	The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.
	(6)	A constable may not search premises in the exercise of the power conferred by subsection (2)(b) above unless he has reasonable grounds for believing that there is evidence for which a search is permitted under that paragraph on the premises.
	(7)	In so far as the power of search conferred by subsection (2)(b) above relates to premises consisting of two or more separate dwellings, it is limited to a power to search       (a) any dwelling in which the arrest took place or in which the person arrested was immediately before his arrest; and      (b) any parts of the premises which the occupier of any such dwelling uses in common with the occupiers of any other dwellings comprised in the premises.

Child pornography

Prior to the enactment of the Sexual Offences Act 2003 the term "pornography" was nowhere used in English law. For the purposes of the offences created by sections 48 to 50 of the 2003 Act,

	48	Causing or inciting child prostitution or pornography
	49	Controlling a child prostitute or a child involved in pornography
	50	Arranging or facilitating child prostitution or pornography
section 51 stipulates that –
	51	Sections 48 to 50: interpretation (1)  For the purposes of sections 48 to 50, a person is involved in pornography if an indecent image of that person is recorded; and similar expressions, and "pornography", are to be interpreted accordingly.

Image

Interpretation

Indecency

The words 'indecent or obscene' convey one idea, namely, offending against the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale

In R v Graham-Kerr (1988), Stocker L.J. said that the appropriate test in the case of the Protection of Children Act 1978 was the application of the 'recognised standards of propriety' stated in R v Stamford [1972]. In Stamford , the Court of Appeal ruled that a defendant who had sent homosexual magazines by post could not call evidence about current social attitudes on the subject; whether an item is indecent or not is a question of fact and as such it is a matter on which a jury or magistrate must decide – a jury or magistrate is as well placed as anyone to assess any argument addressed to the question whether an item offends against "recognised standards of propriety". It is worth noting here that in Land the Court of Appeal pointed out that expert evidence is inadmissible save where its purpose is to assist the jury in matters beyond its experience. It is presumably also the case that expert evidence on the indecency of a photograph is also inadmissible.

In Graham-Kerr the appellant had taken photographs of a young boy at a nudist meeting at a public swimming baths. The Court of Appeal held that the motivation of the photographer had no influence on the decency or otherwise of the photographs taken; a photograph is an indecent photograph of a child if it is indecent, and if it shows a child. The ratio in Graham-Kerr is that the jury must be properly directed on what constitutes indecency; there is no implication that nudist photographs are not indecent – the unsuccessful appellant in R v Fuller (1997) had also taken photographs of nude boys in a swimming pool changing room.

An image considered not to be indecent might be capable of giving rise to an indecent image. The precedent for this is set in R v Murray (2005). Murray had put together a video of two parts; the first being a recording of a (BBC?) television programme showing a doctor examining the genitalia of a naked boy with a genital defect, together with a commentary explaining the procedure, the second part being some of the previous pictures, without commentary, slowed down and focussing on the manipulation by the doctor of the boy's penis. According to s.7 PCA, references to an indecent photograph include an indecent film. Murray argued that the images were merely extracted from the non-indecent documentary and hence could not themselves be indecent. The Court of Appeal rejected this, holding that the jury were entitled to look at the second part as being a quite separate set of images to those which constituted the programme, and to determine whether the images were, objectively speaking, indecent, applying what they considered to be recognised standards of propriety.

Relevance of the age of a known subject

Computer files as photographs

Section 7(2) of the Act defines references to an indecent photograph as including a copy of an indecent photograph.

A computer file contains data, not visible to the eye, which can be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original photograph from which it was derived. It is a form of copy which makes the original photograph, or a copy of it, available for viewing by a person who has access to the file. There is nothing in the Act which makes it necessary that a copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. The Court of Appeal concluded that there is no restriction on the nature of a copy, and that the data in a computer file represents the original photograph, in another form.

Note:- Fellows" offences had taken place before the amendments made by the 1994 Act had come into force. This allowed him to argue that, since Parliament thought it necessary to amend the 1978 Act in order to make it deal expressly with computer data, the Act did not apply to computer files prior to being amended. The Court therefore had to discern whether or not computer data fell within the area of application of the Protection of Children Act 1978 as it stood before the amendments made to it by the Criminal Justice and Public Order Act 1994. See also:- R v Bowden

Prosecuting a photograph where the age of the subject is unknown

Where the age of the subject of a photograph is uncertain (i.e. where the identity of the subject is unknown), the subject's age shall be determined from the photograph.

In R v Land (1997), the Court of Appeal held that a jury is as well placed as an expert (e.g. a paediatrician) to assess any argument addressed to the question whether the prosecution had established that the person depicted in a photograph was a child, and in any event expert evidence would be inadmissible: expert evidence is admitted only to assist the court with information which was outside the normal experience and knowledge of the judge or jury.

Downloading

The principal matter to come out of the judgment is that 'downloading', like much of computer terminology, is not consistent in its use and the High Court was prepared to accept that different technical specialists could reasonably take different views as to the definition of what is really a very commonplace computer operation.

The Concise Oxford Dictionary (Tenth Edition 1999; Eleventh Edition 2004)
Download Computing – v. copy (data) from one computer system to another or to a disk – n. the act or process of downloading

Making photographs (computer files)

Bowden had been convicted at the Crown Court in Cambridge on 12 counts of having made an indecent photograph contrary to section 1(1)(a) of the Protection of Children Act. Before being amended by the Criminal Justice and Public Order Act 1994, section 1(a) of the 1978 Act had read:

1.–

(1)

It is an offence for a person- (a)  to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16);

As amended it read:

1.–

(1)

It is an offence for a person- (a)  to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child;

The 1994 Act had added the concept of pseudo-photographs to the law and created the offence of "making an indecent pseudo-photograph of a child". Bowden submitted that the making offence applied only to pseudo-photographs. The prosecution submitted that it applied to photographs since the 1978 Act was concerned with the further dissemination of indecent photographs as well as their production.

It was accepted in the Bowden case that s.1(1)(a) of the 1978 Act covered those making pseudo-photographs who may have had no contact with the subjects of the images. But it was held that it also covered those making copies of photographs by knowingly copying the photograph.

The wording in s.1 of the 1978 Act as amended was clear and unambiguous. The phrase "to make" had to be given its natural and ordinary meaning, and in the instant context that was "to cause to exist; to produce by action, to bring about".

In R v Fellows & Arnold (1996), the Court of Appeal had held that a computer file containing data that represented the original photograph in another form was "a copy of a photograph" as per section 7(2) of the 1978 Act.

Therefore, downloading an indecent photograph from the Internet was "making a copy of an indecent photograph" since a copy of that photograph had "made" (i.e. had been caused to exist) on the computer to which it had been downloaded.

The decision in Bowden also meant that those simply viewing indecent photographs or pseudo-photographs of children on their computer screens were committing the "Making" offence. In R v Jayson (2002), the Court of Appeal ruled that "the act of voluntarily downloading an indecent image from a web page onto a computer screen is an act of making a photograph or pseudo-photograph".

Note:- Because the amendments made by the Criminal Justice and Public Order Act 1994 were not in force at the time of the relevant offences in Fellows & Arnold, the Court of Appeal considered it unnecessary to determine whether or not the amended wording would cover the offences in that case. The "relevant amended wording" is section 7(4)(b), which states that "references to a photograph include – data stored on a computer disc or by other electronic means which is capable of conversion into a photograph". In Bowden, the Court of Appeal relied on the decision in Fellows & Arnold that computer data constitutes a "copy of a photograph". This is to say that no court has ever assessed the question of whether or not the relevant amendments (s.7(4)(b)) apply to computer data, which, of course, they do. In Bowden, the Court of Appeal was applying the law as it stood before the amendments made to it by the 1994 Act – but, because of the 1994 Act, computer data is not a (s.7(2)) "copy of a photograph" but rather (s.7(4)(b)) "data stored on a computer disc". The Court of Appeal thereby gave no effect to section 7(4)(b). See also:- R v Fellows & Arnold Arguments contra Bowden

Possession (computer files)

It was established by R v Collier (2004) that it is possible to know that one possesses an image that one suspects will be indecent but, unless there is a further reason to suspect that the image shows a child, the possession offence is not complete. See also: R v Land [1997] and R v Matrix [1997]

Legitimate reason

Having the appearance of a photograph

See also:- What types of things can be pseudo-photographs?

Duplicity

On a date in January 2001 you did incite Thomas Reedy to show or distribute an indecent photograph or pseudo-photograph of a child contrary to the common law (section 1(1)(b) of the Protection of Children Act 1978)

is bad in law – it is bad for duplicity.

See also:- Duplicitous use of the "making" charge

Common law offences

Incitement

It is therefore an offence at common law to –

• Protection of Children Act 1978
  1. Incite another to take an indecent photograph of a child
  2. Incite another to permit another to take an indecent photograph of a child
  3. Incite another to make an indecent pseudo-photograph of a child
  4. Incite another to make an indecent photograph of a child
  5. Incite another to take an indecent pseudo-photograph of a child
  6. Incite another to permit another to take an indecent pseudo-photograph of a child
  7. Incite another to distribute an indecent photograph or pseudo-photograph of a child
  8. Incite another to show an indecent photograph or pseudo-photograph of a child
  9. Incite another to possess an indecent photograph or pseudo-photograph of a child with an intention that it be distributed or shown
  10. Incite another to publish an advertisement suggesting that an indecent photograph or pseudo-photograph of a child will be distributed or shown
  
  
• Criminal Justice Act 1988
  1. Incite another to possess an indecent photograph or pseudo-photograph of a child
  
  
• Sexual Offences Act 2003
  1. Incite another to cause child pornography
  2. Incite another to incite child pornography
  3. Incite another to control a child involved in pornography
  4. Incite another to arrange child pornography
  5. Incite another to facilitate child pornography
  
  
• Criminal Attempts Act 1981
  There is probably no offence of inciting a person to Attempt an offence; to incite another to attempt to commit an offence is to incite them to commit the actual offence - one would not, for example, be indicted for inciting another to attempt to make an indecent photograph of a child but rather inciting another to make an indecent photograph of a child.

A human rights based analysis of English "child pornography" laws

Child abuse images

For the Metropolitan Police, child pornography is a permanent record of a child's exploitation and its circulation exacerbates the harm to the child.

In a letter to the Telegraph, Bill Hughes of the National Crime Squad described a problem of "children being horribly sexually abused, some no more than babies, having their childhood stolen from them and having the pictures of these shameful acts broadcast on the internet for all to see, forever, worldwide."

According to Mr Hughes, having to work with child pornography images has an "impact on the welfare of even the [police's] most seasoned staff... [that] cannot be overstated".

Child pornography, then, is a corrosive, noxious stuff; where adult pornography can have a tendency to deprave and corrupt, child pornography must deprave and corrupt absolutely – its production, dissemination and use constitute the "systematic abuse of children".

So society "must be ruthless about stopping this appalling crime", and, as far as Terry Jones of the Greater Manchester Police Abusive Images Unit is concerned, if less serious offenders are slapped with the same sentences that more serious offenders get, so be it – "If that's the price we have to pay to protect kids, then that's the price we pay." ^[*]

The protection of children

Paragraph 558 explains that separate and more stringent controls on child pornography are implemented by the Protection of Children Act 1978 and the Criminal Justice Act 1988.
Presumably, in its next report the Department of Constitutional Affairs will add the Sexual Offences Act 2003 to that list.

But there is a certain disparity here – partly revealed by the Department of Constitutional Affairs' disingenuous use of the word "stringent". The Protection of Children Bill 1977 was presented as being aimed at preventing people exploiting children by taking pornographic photographs of them. It was pointed out that anyone taking such photographs would probably be committing an offence under the Indecency with Children Act 1960 and the only lacuna addressed by the 1977 Bill was the taking of photographs of 15 and 16 year olds. The Law Commission suggested that that problem could be solved by a simple amendment making the 1960 Act cover 15 and 16 year olds. The creation offences proposed by the 1977 Bill would thereby be covered by the 1960 Act and publication (which would include distribution and showing) would be covered by the Obscene Publications Act 1959.

Which would have sufficed &mdash if the intention had been to deal with child pornography.

Obscenities

Because, as one judge put it, indecency is at the lower end of a scale while obscenity is at that scale's upper end, the child pornography laws are less stringent than the laws dealing with other varieties of pornography. The only respect in which the Protection of Children Act 1978 is more stringent than the Obscene Publications Act 1959 is in its requirement that a photograph be of a child. Beyond that, the 1978 Act catches a far wider range of material than the 1959 Act. As the judge in R v Stanley admitted, while an indecent article need not necessarily be obscene, an obscene article must almost certainly be indecent.

What is indecent?

COPINE Taxonomy of different kinds of child pornography
Level		Name		Description of Picture Qualities
1		Indicative		Non-erotic and non-sexualised pictures showing children in their underwear, swimming costumes, etc. from either commercial sources or family albums; pictures of children playing in normal settings, in which the context or organisation of pictures by the collector indicates inappropriateness.
2		Nudist		Pictures of naked or semi-naked children in appropriate nudist settings, and from legitimate sources.
3		Erotica		Surreptitiously taken photographs of children in play areas or other safe environments showing either underwear or varying degrees of nakedness.
4		Posing		Deliberately posed pictures of children fully, partially clothed or naked (where the amount, context and organisation suggests sexual interest).
5		Erotic Posing		Deliberately posed pictures of children fully, partially clothed or naked in sexualised or provocative poses.
6		Explicit Erotic Posing		Emphasising genital areas where the child is either naked, partially or fully clothed.
7		Explicit Sexual Activity		Involves touching, mutual and self-masturbation, oral sex, and intercourse not involving adult.
8		Assault		Pictures of children being subject to a sexual assault, involving digital touching, involving an adult.
9		Gross Assault		Grossly obscene pictures of sexual assault, involving penetrative sex, masturbation or oral sex involving an adult.
10		Sadistic/bestiality		Pictures showing a child being tied, bound, beaten, whipped or otherwise subject to something that implies pain. Pictures where an animal is involved in some form of sexual behaviour with a child.
Source: Taylor & Quayle (2003)

In the Children's Charities' Coalition for Internet Safety response to the consultation, John Carr answered the question on the COPINE categorisations as follows:

Question 4: The COPINE typology

Our understanding of the law leads us to believe that pictures of the kind mentioned in 1- 3 would not be criminally pornographic under any circumstances, therefore we are unclear what purpose they serve on a list of this type. Producing, circulating or possessing them may mean some other offences have been committed. It could be another form of abuse, and there could be issues around the lack of consent or breach of trust or privacy, but we are not sure that these could turn an otherwise non-pornographic image into a pornographic one. There has to be a sexual element to the image. If it is present then, irrespective of the intentions of the person who may have taken the original picture or who now possesses it, the image is capable of being child pornography, and if it is absent, it is not. As far as we can see that only applies with any certainty from 4 onwards. The fact that certain types of person might find particular types of images sexual in some way is not a good enough reason for the originator to be prosecuted for making them or for someone else to be prosecuted for possessing them. There has to be an objective basis for agreeing the sexual nature of the depiction for purposes of establishing offences relating to child pornography.

The Panel's advice to the Court of Appeal, published on 15 August 2002, expressed the view that sentencing in child pornography offences should reflect the harm suffered by the children abused and exploited by the pornographer. It proposed that sentencing should be based on a modified version of the COPINE taxonomy:

		Level				Description				COPINE typology
		1.				Images depicting nudity or erotic posing, with no sexual activity				2.	Nudist (naked or semi-naked in legitimate settings / sources)
										3.	Erotica (surreptitious photographs showing underwear / nakedness)
										4.	Posing (deliberate posing suggesting sexual content)
										5.	Erotic posing (deliberate sexual or provocative poses)
										6.	Explicit erotic posing (emphasis on genital area)
		2.				Sexual activity between children, or solo masturbation by a child				7.	Explicit sexual activity not involving an adult
		3.				Non-penetrative sexual activity between adult(s) and child(ren)				8.	Assault (sexual assault involving adult)
		4.				Penetrative sexual activity between child(ren) and adult(s)				9.	Gross assault (penetrative assault involving adult)
		5.				Sadism or bestiality				10.	Sadistic / bestiality (sexual images involving pain or animal)

Note the subtle changes in emphasis as the COPINE categories are elided into the corresponding SAP categories, for example:

4 - Posing Deliberately posed pictures of children fully, partially clothed or naked (where the amount, context and organisation suggests sexual interest)

becomes

4 - Posing (deliberate posing suggesting sexual content)

The Panel did not include COPINE category 1 in its classification scheme on the grounds that such images, while indicative of an interest in children, would not be classed as indecent, but it did include COPINE categories 2 & 3 even though such images might be the subject of a dispute as to whether or not they were indecent. The Panel included them in level 1 of its scheme because "there may be cases where an offender has been convicted, or pleaded guilty, on the basis of images of this nature."

On 22 August 2003, after the consultation exercise had been completed, John Carr wrote a letter to the Lord Chief Justice recommending that certain sections of the Panel's advice be ignored (mainly the recommendations on pseudo-photographs) but also reiterating the Coalition's view that the categorisation of child pornography should be clear and that the Panel's level 1 was too broad:
Nudist (naked or semi-naked in legitimate settings/sources):

The idea that such pictures should even appear on a list that seeks to categorise child pornography, or that it is bracketed with "Explicit erotic posing...", will greatly offend a good many people.

Either the images are capable of being defined as being indecent, or they are not. Why would a court, or anyone, want to secure a conviction of someone for child pornography offences when the images they possess are not actually child pornographic?

(i)	images depicting erotic posing with no sexual activity;
(ii)	sexual activity between children, or solo masturbation by a child;
(iii)	non-penetrative sexual activity between adults and children;
(iv)	penetrative sexual activity between children and adults, and
(v)	sadism or bestiality.

In giving this categorisation, the Court seemed to be saying that "Nudist (naked or semi-naked in legitimate settings/sources)" images do not constitute indecent photographs of children but that the threshold for indecency is passed when images depict "erotic posing with no sexual activity".

But where is this indecency threshold? Where does level 1 as set out in R v Oliver map into the SAP/COPINE structure?

SAP/COPINE 5. Erotic posing (deliberate sexual or provocative poses)

The appellant in R v Westgarth-Smith was convicted of one count of making an indecent pseudo-photograph of a child and sentenced to 24 months probation with a condition that he attend a Sex Offender Treatment Program once a week for 60 weeks, thereby becoming subject to the notification requirements of the Sex Offenders Act 1997. Smith had requested information about the renowned French erotic photographer Irina Ionesco on the rec.arts.fine newsgroup. A newsgroup user calling herself 'Yvonne Nystrom' responded by emailing Smith 4 scans of photographs of Ionesco's daughter, Eva Ionesco, taken from a book of Irina Ionesco's. When Smith read the email he must have appreciated that it was a response to his request for images of Eva – he must have known that the attachment contained or was likely to contain indecent images of Eva – and therefore he knowingly committed the " making offence" when he viewed the attachments. The Court of Appeal upheld the conviction and leave to appeal was lodged with the House of Lords but an appeal was declined.

SAP/COPINE 4. Posing (deliberate posing suggesting sexual content) — legal?

Irina Ionesco is the "Grande Dame" of French erotic photography. Her photographs first appeared in the 1960s. Since 1970 her work has been exhibited in France, Italy, Spain, Belgium, England, Egypt, the US, Japan and Germany. She was voted "Woman of the Year" by Time Life Photography in 1977 and more than 12 collections of her work have been published in book form. The photographs of her young daughter Eva Ionesco have been widely acclaimed since the 1970s; much of the work was and remains controversial – Irena captured her little girl in various states of undress, often dolled-up adorned with makeup and jewelry. The solicitor acting for the appellant in R v Westgarth-Smith was sure he had seen the photograph in question in the British Library. Defence exhibits included a book of Ionesco's photography obtained from WH Smith but, although the photographs were of a similar nature – depicting the same subject in similar settings and poses – they were not the same photographs and therefore had no bearing on the consideration of the pseudo-photograph involved in that case. Using the book of Ionesco's photography as a defence exhibit was probably question begging in relation to the pseudo-photograph that Smith was accused of making since, if they were sufficiently similar to the offending image, they presumably could themselves form the basis for possession charges. The question of the indecency of the photographs in the book was not assessed. But in reality, how different were they?

Perhaps the majority of Ionesco's Eva photographs do not suggest sexual content. Maybe Smith's image was in the COPINE 4 category, leaving the remainder of the Eva photographs (somehow) in the surreptitious or nudist categories...

SAP/COPINE 3. Erotica (surreptitious photographs showing underwear / nakedness)— illegal

The applicant in R v O'Carroll was convicted at the Crown Court at Southwark on 17 July 2002 of three counts of being knowingly concerned in evading the prohibition on the importation of indecent material contrary to section 170(2)(b) of the Customs and Excise Management Act 1979. Each photograph was of a young naked child engaging in normal outdoor activity such as playing on a beach. In August he was sentenced to 9 months imprisonment. On 26 November his appeal against sentence was allowed by the Court of Appeal but no alternative punishment was imposed. O'Carroll returned to the UK at the end of September 2001 after spending 7 years in Qatar. A week later 9 crates of his belongings arrived at Heathrow airport where customs officers found a number of photographs. At the trial, O'Carroll argued that the images were not indecent – they were "street art" that did not substantially differ from the work of Tierney Gearon as featured in an exhibition at the Saatchi Gallery in early 2001. But at the sentencing hearing, Judge Geoffrey Rivlin QC said that the photographs became "more sinister when seen against [O'Carroll's] background and long-standing expressed interest in and, it might be said, obsession with paedophilia". At the appeal against sentence, Mr Justice Holman said the pictures taken by O'Carroll had the quality of indecency in the context in which they taken, but were of the kind that parents might take of their children entirely innocently; he stressed the case was very different from the "modern scourge" of child pornography on the internet and that there was no evidence that O'Carroll had imported the photographs for any purpose other than his own personal sexual gratification. Were O'Carroll's photographs indecent because he was not the parent of the children shown in them? The Court of Appeal held in R v Graham-Kerr that the intention of the photographer was irrelevant when considering whether or not a photograph is indecent...

SAP/COPINE 2. Nudist (naked or semi-naked in legitimate settings / sources) — illegal

When the appellant in R v Mould (2000) argued that photographs similar to the one he had been convicted of making could be found in medical text books, the Court of Appeal neither refuted nor denied his claim. Instead the Court replied that:-        15.   If the test for deciding whether a photograph is indecent or not is whether or not it is the kind of photograph which appears in medical text books, then many of the photographs with which these courts are all too familiar could not be classified as indecent.

SAP/COPINE 1. Indicative (non-erotic / non-sexualised pictures) — illegal?

In early 2004 a company called Orthet Ltd placed advertisements for the Armani Junior label. One such advertisement appeared in the 28 February 2004 edition of The Times Magazine. The advertisement showed a photo of a long-haired, topless child wearing baggy jeans and a necklace. The complainants objected that the advertisement was offensive, because it sexualised children and encouraged them to emulate adults, exploited the child in the photo and, especially, because the gender of the child was ambiguous and could encourage paedophiles. 74 complaints were made to the Advertising Standards Authority. On 12 May 2004, the ASA published its judgement – the complaints were upheld. The advertiser had already responded to feedback and had withdrawn the advertisement. The advertisers told the Authority that the model was male but the Authority considered that his gender was ambiguous and that the advertisement drew attention to the child's sexuality; because the advertisement sexualised the child, it was likely to cause serious or widespread offence. It advised the advertisers to seek advice from the Committees of Advertising Practice Copy Advice team before advertising again. Writing in the Darlington and Stockton Times, Sharon Griffiths called the advert "very peculiar" and went on to say that it was "very sexy" and that she found it "very unsettling, disturbing almost". She presented the view of one of the (apparent) ASA complainants who had "wanted to send it to [her] daughter in New Zealand but [...] didn't want to put it in the post in case [she] was accused of sending pornographic material." While this does not determine that the Armani Junior image is indecent, it does show that a person one might reasonably expect to find on a jury can consider such an image to be "child pornography".

The Court of Appeal relied on the Fellows and Arnold case and this demonstrates the problem perfectly: the coming into force of the provisions of the Criminal Justice and Public Order Act 1994 rendered Fellows & Arnold obiter dicta.

The Human Rights Act 1998 was not in effect at the time of the Bowden decision. Had it been, the Court would have been acting unlawfully.

By deciding as it did, it ignored its duty to interpret the Protection of Children Act in the legally binding way (i.e. as a whole).

It also violated Jonathan Bowden's right to a fair trial under Article 6 of the Convention, since the prosecution would have committed exactly the same offence in bringing him to trial, that is "causing to exist copies of indecent photographs of children". Any evidence against him would have been obtained unlawfully; to admit it would be unfair. A judge would be compelled to exercise his discretion to exclude it under the Police and Criminal Evidence Act.

Under the European Convention on Human Rights, there is an obligation on a court to explore issues of fair trial even if they are not brought up by the parties at the trial. The effect of finding as they did on the fairness of a trial were NOT considered by the Court of Appeal.

Under the Convention, it is left to the judiciary to protect the rights enshrined within it. Where does one stand when it is the judiciary violating those rights? Read the full article...

Duplicitous use of the "making" charge

Lord Reid in Knuller v DPP (1973) AC 435 said that indecency includes 'anything which an ordinary decent man or woman would find to be shocking, disgusting or revolting'.

Despite the problem of defining indecency in terms of what an ordinary, decent person thinks it is, the law also causes problems by defining indecent pseudo-photographs.

These cause various problems, one of which is duplicity in charges on indictments: despite the fact that pseudo-photographs are not the same thing as photographs, people are being charged with making an indecent photograph or pseudo-photograph. Read the full article...

But how are pseudo-photographs made? What was Parliament's intention in adding the idea of pseudo-photographs to the law with the Criminal Justice and Public Order Act 1994?

The intention was to criminalise the act of combining images to create a new composite image showing parts of a child and parts of an adult. Using a computer art package to "make" an image is totally different to "making" an image by downloading it from the Internet.
But the police have been authorised to do both... Read the full article...

A pseudo-photograph is made by computer graphics, and might show some of the physical characteristics [...] of an adult – even the language of the Act ties in with the way in which pseudo-photographs were described at the time of the amendments: composite images made from a part of a photograph of a child and part of a photograph of an adult.

According to the Court of Appeal, the words "to make" bear their natural and ordinary meaning of "to cause to exist; to produce by action, to bring about" (OED).

How, then, is a pseudo-photograph made? If I superimpose some "characteristics of an adult" onto a photograph of a child, what have i caused to exist? Read the full article...

Parliament did not intend this offence to exist, and the unexpected consequences of the Bowden decision demonstrate this to be the case – firstly that simply displaying an indecent photograph on a computer screen is sufficient to commit the offence; secondly that the 'making' offence does away with the offence of distribution as provided by section 1(1)(b) of the Protection of Children Act, at least in so far as computer files are concerned.

It took "them" quite a while to realise that displaying an image on a computer screen was an offence equivalent with taking an indecent photograph of a child; will "they" realise that the distribution offence is done away with too?

It is a legal fiction that an Act always said what it says – so even when an interpretation of an Act changes sufficiently to create a "new" offence (as is the case with Bowden) the Act is said to have always defined the same offence. In which case, it took "them" 7 years to realise that displaying an image on screen constitutes an offence of "making an indecent photograph of a child" contrary to section 1(1)(a). How unclear does the law have to be before Article 7 of the European Convention on Human Rights is breached? Read the full article...

Pete Townshend 'outed' himself as a looker at child-pornography websites. He was bailed by the police in January 2003 and cautioned in May, apparently for 'accessing a paedophile website'. What might this mean? I suspect he was cautioned for incitement to distribute indecent photographs of children which I discuss here. Why caution a person who has committed a serious arrestable offence AND confessed it in public? Can there ever be legitimate reasons for "abusing" a child? Read the full article...

Get yourself arrested!

Here is something intended to be light relief. I allege that, at this moment, your computer has indecent photographs of children on it! The evidence against you is absolutely compelling because it reaches a standard far and above reasonable doubt – it is mathematically certain... you have just drawn the 'Go straight to jail – do not have a trial' card. Read the full article...

• R v Stanley [1965]
• R v Stamford [1972] 2 QB 391
• Knuller v DPP [1973] AC 435
• R v Owen [1987] The Times, 10 October; [1988] 1 WLR 134
• R v Graham-Kerr [1988] WLR 1098
• R v Fellows & Arnold [1996] EWCA Crim 825; The Times, 3 October; [1997] 2 All ER 548; 1 Cr App R 244
• R v Fuller [1997] EWCA Crim 2136
• R v Land [1997] EWCA Crim 2409
• R v Matrix [1997] EWCA Crim 2058
• R v Barker [1998] EWCA Crim 1105
• R v T [1999] 163 JPN 349; The Times, 12 February; R v E.T. 163 J.P. 349, CA
• R v Bowden [1999]; The Times, 19 November; [2000] 1 Cr App R 438
• DPP v Armstrong [2000] Crim LR 379
• Atkins v Director of Public Prosecutions [2000] EWHC Admin 302; 1 WLR 1427
• Goodland v Director of Public Prosecutions [2000] EWHC Admin 302; 1 WLR 1427
• R v Mould [2000]
• R v Goldman [2001] Crim LR 822
• R v Smith; R v Jayson [2002] EWCA Crim 683; The Times, 23 April; [2003] 1 Cr App R 13; Case report by Dr Yaman Akdeniz
• R v Oliver; R v Hartrey; R v Baldwin [2002] EWCA Crim 2766; The Times, 6 December; [2003] Crim LR 127; 1 CAR 463; 2 Cr.App.R.(S.) 15
• R v O'Carroll [2003] EWCA Crim 2338
• Regina (O) v Coventry Magistrates Court [2004] EWHC 905 (Admin); The Times, 22 April
• R v Collier [2004] EWCA Crim 1411
• R v Murray [2005] Crim.L.R 387
• O'Carroll v. The United Kingdom (2005) application 35557/03 to the European Court of Human Rights; inadmissible
• Fox v Regina [2009] EWCA Crim 653

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References

• Bell, John & Engle, George: Cross: statutory interpretation, third edition. Butterworths
• Robertson, Geoffrey: Obscenity (1979), Weidenfeld & Nicolson, London, ISBN 0 297 77459 x
• Stone, Richard: Textbook on Civil Liberties (1994), Blackstone Press, London, ISBN 1 85431 645 1
• Home Affairs Select Committee: First Report on Computer Pornography (1994), HMSO, London, ISBN 0102126941
• Taylor Max, Quayle Ethel: Child Pornography: An Internet Crime (2003) Brunner-Routledge, Hove, ISBN 1-58931-244-4

Other reference materials are quoted here in the public interest and it is believed fair use is made of them.

			Otherwise   Copyleft 2002, 2003, 2004, 2005, 2006, 2007 2008 2009

Disclaimer

The text of the Act included on this site is not the definitive version of the legislation - the printed copy must be referred to in the event of legal dispute. I suspect that the same attitude should be adopted with regard to the Statute Law Database (it is unlikely that a court will let you off if you relied on the database but it later turned out to be wrong). The version included on this site was scanned from a printed copy, OCRed and carefully proofread then converted to HTML. Every effort was made to ensure that no errors arose during the process but this cannot be guaranteed.

Protection of Children Act 1978, Publisher: The Stationery Office Books, ISBN: 0105437786

Also, I would be grateful for any information on the Passion Brigade.

Email me at pca_1978@yahoo.co.uk.