Definition of indecent photographs of children

Definition of indecency

The words 'indecent' and 'obscene' are often used together in the area of censorship under UK laws. However, in the Protection of Children Act (PCA), a photograph of a child only need be indecent.

In R. v. Stanley (1965) 2 QB 327, Lord Parker tried to explain the terms:

...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...

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'.

The case of R v Gibson (1991) 1 All ER 439 concerned earrings made from freeze dried foetuses, and the artist who created the display, and the owner of the gallery in which it was displayed, were convicted of outraging public decency.

In Regina v. Graham-Kerr, Stocker L.J. said that the appropriate test in the case of the Protection of Children Act was that as stated in R. v. Stamford [1972] 2 QB 391, which uses the formula 'recognised standards of propriety.'

This, and the use of the word 'impropriety' by Lord Parker, point to the essential elements of indecency being offence caused, and inappropriateness, rather than that any amount of shock or disgust be caused in those forced to see it.

	Main Entry:	impropriety
	Etymology:	French or Late Latin; French impropriété, from Late Latin improprietat-, improprietas, from Latin improprius
	Date:	1607
	1:	an improper or indecorous act or remark; especially : an unacceptable use of a word or of language
	2:	the quality or state of being improper

An improper motive cannot make an decent item indecent: see R. v Graham-Kerr (1988) 1 WLR 1098, in which the trial judge had allowed evidence as to the accuser's purpose and motivation in taking the photograph. The Court of Appeal held that motivation was irrelevant: what mattered was whether or not the photograph was indecent in and of itself.

On what would have made the photograph decent or indecent, the Court could only refer to Lord Parker's 'recognised standards of propriety'.

The decency of a photograph is a matter of fact to be determined in each case by the magistrate or jury, and therefore the scope of indecency depends heavily on the subjective reaction of the jury or magistrate to the evidence shown.

What is a photograph? (definitions from Mirriam Webster's Online Dictionary).

	Main Entry:	photograph
	Date:	1839
		a picture or likeness obtained by photography
	Main Entry:	photography
		the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and especially light

The Oxford Concise English Dictionary defines a photograph as 'a picture made by a camera, in which an image is focussed onto film and then made visible and permanent by chemical treatment'.

The New Penguin English Dictionary defines a photograph (noun) as 'a picture or likeness obtained by photography'.
It defines the verb 'photograph' as 'to take a photograph of (somebody or something)'.
It defines 'photography' as 'the art or process of producing images on a sensitised surface, e.g. a film, by the action of radiant energy, esp. light.'

It might seem a little unnecessary to define a 'photograph' but, since the Protection of Children Act defines a 'pseudo-photograph' in relation to a photograph, it is important to know where one ends and the other begins.

What is a pseudo-photograph? The Protection of Children Act 1978 definition is as follows:

7.

(7)

'Pseudo-photograph' means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

There seems to be some confusion about what a pseudo-photograph is. In their Consultation Paper on the Regulation of R18 Videos, the Home Office's Sentencing and Offences Unit (who should know, one might reasonably think) have this to say:

The Protection of Children Act 1978 1.14 This Act (as amended) makes it an offence to produce or publish indecent photographs of a child under 16, including pseudo photographs which may be transmitted via computers.

Or also see the paper If you can't say something nice, don't say anything: Defamation, Libel and Civil Liberties on the Internet on the Encyclopedia of Computer Security.

A pseudo-photograph is not an image that can be transmitted by computer. Pseudo-photographs CAN transmitted by computers, just as photographs can be, but this is no part of the definition of either that differentiates it from the other.

Section 7(4) of the Protection of Children Act:

7.

(4)

References to a photograph include– .... (b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.

Section 7(9) does the same thing for pseudo-photographs:

7.

(9)

References to an indecent pseudo-photograph include– .... (b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph.

Both photographs and pseudo-photographs can be sent as data contained in files over some communication channel between computers.

A pseudo-photograph appears to be a photograph. This means that a pseudo-photograph is not a photograph - a dog does not appear to be a dog; it simply is one. A photograph does not appear to be a photograph; it IS one.

A pseudo-photograph is a photo-realistic image that has been created by non-photographic means. In Blackstone's 'Textbook on Civil Liberties' (now published by Oxford University Press, ISBN 0199255148), Richard Stone says:

...The concern is with the possibility, facilitated by new computer technology, that a photograph can be manipulated so that, for example, a child's face can be superimposed on an adult's body, or vice versa, or the appearance of physical characteristics can be altered. The resulting picture may be indistinguishable from a real photograph... ...A person may be convicted of creating or possessing an indecent pseudo-photograph where the actual person depicted is above the age of 16.

In addition to the statutory defences of having a legitimate reason to possess it, or not having any knowledge of the photograph, a person charged with 'possessing an indecent photograph of a child' could rebut the charge by proving that the person in the photograph was over 16 at the time the photograph was taken.

Given that section 7(8) of the Act says

7.

(8)

If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

that defence is not available in the case of a pseudo-photograph. It is up to the magistrate or jury to decide whether or not a pseudo-photograph gives the impression that it shows a child. The actual age of the person shown is irrelevant.

Therefore, the steps necessary to defend oneself against a charge of possessing an indecent photograph of a child are different to those necessary to defend oneself against a charge of possessing an indecent pseudo-photograph of a child.

Similarly, in a charge of 'making an indecent photograph of a child' as compared with a charge of 'making an indecent pseudo-photograph of a child', both the end product and the actus reus differ.

A photograph is an picture made by photography. A pseudo-photograph is not.

In making an indecent pseudo-photograph, one must start with something that is not an indecent photograph of a child and modify it so that it becomes an indecent pseudo-photograph of a child. One may do this by increasing the size of various parts of the anatomy, or by lifting a child from one photograph and placing it in a changed setting, or by changing the appearance of an adult in a photograph so as to make them appear to be a child.

In unamended form, section 1(1)(a) of the Protection of Children Act made it an offence for a person to:

take, permit to be taken

any indecent

photograph

of a child.

which made it an offence for a person to

= Take a photograph = Permit to be taken a photograph

As amended by the Criminal Justice and Public Order Act 1994 (CJPOA), section 1(1)(a) of the Protection of Children Act makes it an offence for a person to

take, permit to be taken or make,

any indecent

photograph or pseudo-photograph

of a child.

In contemporaneous expositions of the law (e.g. 'Blackstone's Guide to the Criminal Justice and Public Order Act 1994', Blackstone Press; ISBN: 1854314017), this was described as making it an offence to:

= Take a photograph = Permit to be taken a photograph = Make a pseudo-photograph

However, in R. v. Bowden, the Court of Appeal was asked to consider a conviction for 'making an indecent photograph'.

It was given the option of confirming that 'make' applied only to 'pseudo-photographs', but declined to do so.

In its view, the PCA as amended, quite simply...

rendered unlawful the making of a photograph. There was no definition section. Accordingly, the words "to make" were to be given their natural and ordinary meaning. In context that was "to cause to exist; to produce by action, to bring about" Concise Oxford English Dictionary (9th edition (1995) p823). As a matter of construction such a meaning applied not only to original photographs but by virtue of section 7 also to negatives, copies of photographs and data stored on computer disk.

If 'make' applies to both 'photographs' and 'pseudo-photographs', then so does 'take' and 'permit to be taken'. Which means that one can:

= Take a photograph = Take a pseudo-photograph = Permit to be taken a photograph = Permit to be taken a pseudo-photograph = Make a photograph = Make a pseudo-photograph

The Court's reasoning is wrong (see my article Operation Awful) and this arrangement of offences acts as a demonstration of that wrongness.

It is a presumption of statutory interpretation that different words have different meanings.

Without resorting to any cleverness and saying that, since the definition of photograph given by the PCA includes copies of photographs, a 'photograph' is 'made' when a 'copy of a photograph' is 'made', it should be remembered that the plain words of the Act criminalise both 'Taking a photograph' and 'Making a photograph'.

Making and taking a photograph

Photographs are 'made' (i.e. caused to exist) by being taken (I take photographs of trains...).

Make a photograph
It is a presumption of statutory interpretation that different words have different meanings. How can I 'make a photograph' without taking it?

It is a presumption of statutory interpretation that different words have different meanings.
Conversely, it is a presumption of statutory interpretation that the same word bears the same meaning throughout the same Act.

The plain words of the Act make it an offence to 'make a photograph'.

Since the same word is presumed to bear the same meaning throughout an Act, 'making a photograph' and 'making a pseudo-photograph' must involve the same actions. Since a photograph is 'caused to exist' by being taken, 'making a photograph' cannot cause its coming into existence.

This might accord with the concept of a pseudo-photograph being a combination of parts of two already existing images. Nothing is caused to exist other than an arrangement of already existing things.

A pseudo-photograph can be said to be 'made' where the definition of 'make' is 'to put together from components'.

One might quote Wittgenstein's Tractatus Logico Philosophicus:

	2.01	An atomic fact is a combination of objects (entities, things).
	2.011	It is essential to a thing that it can be a constituent part of an atomic fact.
	2.012	In logic nothing is accidental: if a thing can occur in an atomic fact the possibility of that atomic fact must already be prejudged in the thing.
	2.02	The object is simple.
	2.03	In the atomic fact objects hang one in another, like the links of a chain.
	2.04	The totality of existent atomic facts is the world.

The pseudo-photograph is made by being 'put together from components' which consist of parts of other photographs. Once you have the two images the parts of which will constitute the pseudo-photograph, 'the possibility of that atomic fact [the combination giving rise to the pseudo-photograph] must already be prejudged in the thing[s]'.

Making and taking a pseudo-photograph

Make a pseudo-photograph

7.

(7)

'Pseudo-photograph' means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

A pseudo-photograph appears to be a photograph. Therefore it is not a photograph. In order to appear to be photograph it must be photo-realistic.

Goodland v Director of Public Prosecutions (2000) QBD deals with whether a specific item constitutes a pseudo-photograph.

The defendant had possessed an indecent item made up of a photograph of a young woman fixed by tape to a photograph of a child. The question was whether the item was a pseudo-photograph within s 7(7) of the Protection of Children Act 1978, i.e. 'an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.' In his Lordship's judgment, an image made by an exhibit which obviously consisted of parts of two different photographs taped together could not be said to 'appear to be a photograph,' although if it were itself photocopied the result could well be said to constitute a pseudo-photograph.

Needless to say, if a pseudo-photograph cannot be taken, then the possible offence of permitting an indecent pseudo-photograph of a child to be taken makes a similar amount of sense.

Offences

If the only thing he could have been charged with was taking an indecent photograph of a child, he could have demonstrated his original item, which would conclusively prove that no child had been involved in the creation of the photocopy.

Where he can be charged with making an indecent pseudo-photograph of a child, he has no defence. Whether the image is indecent and gives the impression that it shows a child is a matter of fact for the jury or magistrate to decide.

The prosecution need prove nothing; the defence can do nothing save sit back and await the verdict.

What if the Emperor Hadrian had been stopped by a Customs official and found to be carrying an indecent photograph of his travel companion, Antinous?

If Hadrian could prove that Antinous had turned 16 when the photograph was taken, he would have a defence to a charge of taking an indecent photograph of a child; however, if he had been charged with making an indecent pseudo-photograph of a child, how could he defend himself?

Would he be able to prove to the jury that Antinous had been 16 when the photograph had been taken? No; if the impression given by the pseudo-photograph is that it shows a person who is under 16, then it shall be treated as showing a child. If the Jury believe Antinous appears to be under 16 in the pseudo-photograph, then it is an pseudo-photograph of a child.

Would Antinous have to pose naked for the jury so that his features could be compared with the ones shown in the pseudo-photograph? Would the jury have to be satisfied that Antinous' erection in the court room was as big as the one he displayed in the (pseudo-)photograph?

More importantly, how can Hadrian prove it is a photograph and not a pseudo-photograph? He cannot.

What do the prosecution have to do to show that what they allege is a pseudo-photograph is not in fact a photograph?.

It appears that they need do no such thing - people are apparently being charged with 'making indecent photographs or pseudo-photographs of children' (for example, Man charged in child porn inquiry, BBC News website, 27 September 2002).

With the differences in actus reus and available defences, shouldn't a person be charged with the most appropriate offence?

To charge a person with 'making indecent photographs or pseudo-photographs' is bad for duplicity.

Reddendo singula singulis

Taking an indecent photograph of a child Permitting an indecent photograph of a child to be taken Making an indecent pseudo-photograph of a child

The Bowden decision demands that the possible offence making an indecent photograph of a child exist. This leads to the absurd situation of the PCA as amended by the CJPOA having defined numerous offences that cannot possibly be committed. Where the construction arrived at is impossible, it might be considered reasonable to assume that that is not what was intended.

One simply CANNOT take a pseudo-photograph.
Nor can one permit to be taken a pseudo-photograph.

Sometimes the subclauses of a phrase do not go together very well. For example, take 'I devise and bequeath all my real and personal property to A'.

Main Entry: Devise Function: transitive verb Etymology: Middle English, from Old French deviser to divide, regulate, tell, modification of (assumed) Vulgar Latin divisare, frequentative of Latin dividere to divide 2 : to give (real estate) by will -- compare BEQUEATH

Main Entry: Bequeath Function: transitive verb Etymology: Middle English bequethen, from Old English becwethan, from be- + cwethan to say -- more at QUOTH 1 : to give or leave by will -- used especially of personal property

Real property is devised and personal property is bequeathed.

It is therefore is incorrect to interpret 'I devise and bequeath all my real and personal property to A' as meaning:

	'I devise and bequeath all my real property to A'
and	'I devise and bequeath all my personal property to A'

'I devise and bequeath all my real and personal property to A' will therefore be construed reddendo singula singulis by applying 'devise' to 'real property' and 'bequeath' to 'personal property' (for more on reddendo, see In defence of maxims in Statute Law Review, Volume 22, Issue 1, 2001).

Section 1(1)(a) of the PCA would be better interpreted by applying reddendo.

	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;

Remembering that, before being amended by the CJPOA, it read 'It is an offence for a person to take, or permit to be taken, any indecent photograph of a child', one can see that the subclauses 'take, or permit to be taken,' belong together and apply to 'indecent photographs' and that 'make' applies to 'indecent pseudo-photographs'.

The Court of Appeal misinterpreted the Section 1(1)(a) of the PCA on two grounds: by faulty reasoning as detailed in my article Operation Awful; and by considering photographs and pseudo-photographs to be the same thing rather than two different things.