Protection of Children Act 1978

Originally, in 1978, the Act referred to "photographs". In 1994, to cover also actions involving images created or altered with machines like computers, the Act was amended by the Criminal Justice and Public Order Act 1994, to refer to taking, or making, "photographs or pseudo-photographs", etcetera.

The Act was further amended by the Criminal Justice and Immigration Act 2008,[8] which provided that "photograph" includes:

"a tracing or other image, whether made by electronic or other means (of whatever nature)— (i) which is not itself a photograph or pseudo-photograph, but (ii) which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both)," and including data stored on a computer disc or by any other form of electronic means that can be converted into such an image.

Causing an indecent photograph of a child to exist on a computer screen is considered to be "making an indecent photograph of a child".

"A person who either downloads images on to disc or who prints them off is making them. The Act is not only concerned with the original creation of images, but also their proliferation. Photographs or pseudo-photographs found on the Internet may have originated from outside the United Kingdom; to download or print within the jurisdiction is to create new material which hitherto may not have existed therein." (R v Bowden)

The Sexual Offences Act 2003 further amended the 1978 Act so as to increase the age of a child from 16 to 18; consequently, the 2003 Act also added a defence to cover the situation where an "indecent photograph of a child" was created by that child's partner. Because of the Bowden decision, it was also necessary to add a defence where it was necessary to make an indecent photograph or pseudo-photograph for the purposes of a criminal investigation.

1.– (1) Subject to sections 1A and 1B, 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; or

(b) to distribute or show such indecent photographs or pseudo-photographs; or

(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

(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.

Initially, the definition of a child was contained in the definition of offences:

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) ;

While adding the definition of pseudo-photographs, the 1994 Act deleted this definition and inserted a new subsection to the interpretation section:-

7.-(6) 'Child', subject to subsection (8), means a person under the age of 16.

Subsection (8) defines pseudo-photographs. Subsection (6) was further amended by the Sexual Offences Act 2003, which raised the age of a child to 18.

Section 45 of the Sexual Offences Act 2003 made a number of changes to the 1978 Act. Principally it redefines a "child" for the purposes of the 1978 Act as a person under 18 years, rather than under 16 years, of age.

Section 45 of the Sexual Offences Act 2003 also inserted new sections 1A (Marriage and other relationships) into the 1978 Act and 160A into the Criminal Justice Act 1988. These sections apply where, in proceedings for an offence under section 1 of the 1978 Act or section 160 of the 1988 Act 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 the defendant were married or in a relationship. These sections were further amended by the Civil Partnerships Act 2004 to "civil relationships" after "were married"[9]

'Photograph' shall include film, video-recording, copy of photograph or film or video-recording, photo comprised in a film or video-recording; negatives of photograph etc.; data on a computer etc. which can be converted to photograph etc.[7]

The Act does not define the term 'indecent'.[7]

The Act defines a "pseudo-photograph" as "an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph", and further a copy of a pseudo-photograph, including data stored on a computer disc or by any other form of electronic means that can be converted into a pseudo-photograph.[7]

In R v Graham-Kerr (1988), the accused 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.

Whether or not a photograph or pseudo-photograph is indecent is a question of fact, and as a question of fact it is something for a jury or magistrate to decide. The jury should apply the standard of decency which ordinary right-thinking members of the public would set - the "recognised standards of propriety" as R v Stamford [1972] puts it.

In R v Owen (1988), it was held that age of the child in the photograph is a consideration the jury should bear in mind when deciding whether or not the image is "indecent". Owen was a professional photographer who had taken a number of photographs of a 14-year-old girl who, it was claimed, wanted to become a model. In these photographs the girl was scantily dressed and showing her bare breasts. The defence argued that the image should be judged as it stood, disregarding evidence of the girl's age - presumably thinking that a similar image showing a 16- or 17-year-old girl would not be considered indecent (at that time - since then, the age of a child has been increased to 18).

In R v Fellows (1997) the Court of Appeal held that a computer file came within the scope of the definitions of the Act.

Section 7(2) of the 1978 Act defines references to an indecent photograph as including a copy of an indecent photograph.

A computer file contains data, not visible, 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.

In 2003, the Sentencing Advisory Panel provided guidance for Judges considering sentences for people convicted of an offence under the Protection of Children Act. The lowest level of indecency was described as "images depicting erotic posing with no sexual activity."

In R v Mould (2000), the Appeal Court ruled that "Mr Burton [representing Mr Mould] was rightly concerned that the jury, in deciding whether or not the photograph was indecent, would wrongly take into account [data showing access to paedophile discussion forums]." Although it was agreed that the jury should not use such information to make a judgment regarding the decency of the image for which Mr Mould was convicted, it was understood that "the prosecution [successfully] sought to rely on it in order to prove that the appellant had deliberately created the .bmp file."

While a defendant's proven sexual attraction to children should not affect indecency, it may affect the perceived mens rea of an act.

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.

Section 2.-(3) provides 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 defined age of a child.

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.

In an appeal against conviction in R v Bowden (1999), the Court of Appeal held that downloading data representing indecent photographs of children from the Internet amounts to an offence within the meaning of s.1(1)(a) of the Protection of Children Act 1978.

In Goodland v DPP (2000), Lord Justice Simon Brown ruled that "an image made by an exhibit which obviously consists, as this one does, of parts of two different photographs sellotaped together cannot be said to appear to be "a photograph". This means that, if an item does not appear to be a single photograph, it does not fall within the scope of the Protection of Children Act. A photocopy or scan of such an item may appear to be a single photograph and so fall under the Act and could therefore be illegal if it shows a child and is judged to be indecent.[10]

On May 1st 2004, when section 45 of the Sexual Offences Act 2003 came into force, raising the general minimum age to appear in sexual images, in England and Wales, from 16 to 18, under the Protection of Children Act 1978, exceptions were provided for in law for contexts in which images of 16 and 17-years-olds were to remain lawful, these being under the following contexts:

In cases where a defendant has taken or made a photographic image of a child over the age of 16, the defendant is not guilty if, at the time when they obtained the photograph, they and the child:

(a) were married; or

(b) lived together as partners in an enduring family relationship¹; and

(c) the defendant reasonably believed that the child consented to the image being obtained.[12]

This exemption was introduced in 2003 under the Sexual Offences Act, which had changed the statutory definition of "child" (in the Protection of Children Act) from 16 to 18.
¹ - A definition of "enduring family relationship" is not supplied within the Act.

The common law mens rea defence applies to the Protection of Children Act offences. The prosecution must demonstrate that a defendant took a photograph deliberately, intending it to be an indecent photograph showing a child. Presumabably the notion of intention is that defined elsewhere in English criminal law found in Woolin [1998]: that is, either clear intent or (summarised) 'whatever the defendant's purpose, if it is virtually certain that the actus reus will result from the defendant's action, then the jury may infer intent."

By the latter test mere foreseeability or likelihood will not suffice (see Nedrick and Woollin) as this encroaches on the notion of recklessness. It would appear that the offences in the act are of specific intent (that is, intent is required and not mere recklessness, and certainly the offences are not absolute with strict liability, see Smith and Jayson below).

This was upheld in R v Smith and Jayson (2003), where it was held that "the mens rea necessary to constitute the offence [of making an indecent pseudo-photograph of a child] is that the act of making should be a deliberate and intentional act with knowledge that the image made is, or is likely to be, an indecent image of a child" [13]

It is thus a defence for the defendant to raise sufficient doubt about whether he took, made, distributed, showed or possessed an image without the knowledge that the image was, or was likely to be:

• an indecent image; and
• an image of a child.

Further to this, if an image is found only in a computer cache, if the defendant can reasonably be thought not to have had knowledge of the existence of the cache, he is innocent of a possession offence. The mere existence of the image in the cache should not necessarily be sufficient proof that the image was made when it was downloaded, however; this should be backed up by evidence of an intentional directed search, for example (see Atkins v DPP).

The definition of the mens rea for making, however was thought to be thrown into confusion by the decision in Harrison v R [2007] EWCA Crim 2976 where it was suggested that if the actions of the defendant were very likely to make an image that would constitute the mens rea. Smith and Jayson however were not overtly overruled and Harrison is regarded as made per incuriam or at least a badly worded setting out of the rule found in Woollin. In Harrison there was clear and admitted evidence that a directed (and "unusual") search for and visit to a site had been made which would fall under the Woollin rule - it could be argued that it was a virtual certainty that images would be made (in the cache). Harrison knew that pop-ups which contained indecent images of children would be produced and carried on regardless.