Classifying Indecent Images of Children – The Basics

There are two statutory provisions which outline the offences a person will commit should they possess indecent images. The first is section 1 of the Protection of Children Act 1978 and the second is section 160 of the Criminal Justice Act 1988.

Section 1(1) of the Protection of Children Act 1978 states that:

It is an offence for a person

• To take or to permit to be taken, or to make any indecent photographs or pseudo-photographs of a child.

A person is considered to be a child if they are less than 18 years of age (s45 (1) of the Sexual Offences Act 2003).

• To distribute or show such indecent photographs or pseudo-photographs

• To have in his possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by himself or others

• 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.

Section 1 (4) of the Protection of Children Act 1978 states that:

Where a person is charged with an offence under this subsection it shall be a defence for him/her to prove

• That he/she had a legitimate reason for distributing or showing the photographs or pseudo photographs or having them in his or her possession

This defence is restricted more so than it would initially appear, it covers such persons as Police, forensic investigators, legal professionals and expert witnesses etc. rather than defendants/members of the public at large. The aim is to protect those who must retrieve/analyse evidence and forward them onto others from prosecution in the performance of duty, rather than be used as a shield by defendants suspected of making/possessing indecent images.

• That he/she had not himself seen the photographs or pseudo photographs and did not know, nor had any cause to suspect them to be indecent.

Section 160 of the Criminal Justice Act 1988 states that:

It is an offence for a person

• To have any indecent photograph or pseudo photograph of a child in his or her possession

Possession of indecent images when discussing this offence extends beyond having a physical copy (i.e. a photograph), it is important to extend the definition of possession to cover images on a computer hard-drive (for example) as this is how large amounts of indecent images are now stored and transmitted from user to user. To have possession of an indecent image a defendant must have the ability to access it and be aware of its existence as will be discussed under ‘defences’ below.

Anyone charged with an offence under s160 (1) will have a defence provided they can prove

• That the subject of the image in question was over 16 years of age and married to the accused

• That they had a legitimate reason for having the photograph in his or her possession

As with Section 1 of the Protection of Children Act 1978 defence concerning legitimate reasons for possession of indecent images this defence is restricted in its application to those involved in the legal process.

• That they had not seen the photograph and did not know or have any cause to suspect it to be indecent

• That the photograph was sent to the defendant without any prior request made by them or by a third party and that he did not keep it for an unreasonable amount of time.

It would be desirable to prosecute under section 1 of the Protection of Children Act 1978 as this involves some element of ‘making’ indecent images of children and therefore a more serious offence (with heavier punishments) than ‘mere’ possession.

Clearly, being involved in the production/distribution of indecent images involving children is a serious offence (this is reflected in the sentencing with the maximum custodial sentence for possession of indecent images being five years and the maximum for making/distributing the same photos being up to ten years), however when discussing indecent images in this electronic age it is important to note that ‘making’ an indecent image does not necessarily have the same meaning it would have previously.

Whenever there is a digital transfer of an image, the original file containing the image remains on the host device (PC, Mobile telephone, tablet etc.) and its contents are duplicated into a new file on the target device. Therefore if an indecent image is found on a device the user will be guilty of ‘making’ the (duplicated) image provided there is some evidence directing investigators to the time of its creation on said device. If no evidence in this regard is retrievable then provided the image is in fact indecent, a ‘mere’ possession charge under section 160 of the Criminal Justice Act 1998 will be preferred as without some positive evidence of ‘making’ an indecent image guilt under section 1 of the Protection of Children Act 1978 cannot be established.

It is possible for an image to be present on a hard-drive without being purposefully ‘downloaded’ by the user (a copy can automatically be stored in a ‘cache’ for faster accessing of previously visited websites), and of great importance is that deleted data can be still be considered present on a hard-drive, provided it remains in what are known as ‘unallocated clusters’.

To assist with classification, indecent images can be “graded” on a five point scale (originally outlined by the UK Sentencing Advisory Panel (SAP), based upon the COPINE scale) as adopted in R-v-Oliver, Hartrey and Baldwin [2003] Cr App R(S) 15.

The five points of the SAP scale are as follows:

Level 1 Images depicting erotic posing with no sexual activity

Level 2 Non-penetrative sexual activity between children, or solo masturbation by a child

Level 3 Non-penetrative sexual activity between adults and children

Level 4 Penetrative sexual activity involving a child or children, or both children and adults

Level 5 Sadism or penetration of, or by, an animal

Offences involving any form of sexual penetration of the vagina or anus, or penile penetration of the mouth (except where they involve sadism or intercourse with an animal, which fall within level 5), should be classified as activity at level 4.

Classification is a very crucial area of any prosecution for possession/distribution of indecent images. The SAP scale is an aid to determine the severity of ‘activity’ depicted in an image classified as indecent, but before this stage it is important that the first requirement of any offence is fulfilled in that the image is of a ‘child’. It is rare for direct evidence of a subject’s age to be provided and therefore the determination of age should always be left to the jury (the court’s decision in R v Land [1998] 1 Cr App R 301,CA made expert evidence on the subject inadmissible), Protection of Children Act 1978 section 2 (3) stating “in proceedings under this Act 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 16.”

This discussion represents the basic outline of what legislation exists in this area and how it operates. Further discussion can be found here Issues of Indecent Image Classification.