What is the law relating to indecent images of children and the internet?

With the explosion of internet use, there has developed a huge market for indecent images of children. Accordingly, laws have been introduced which aim to prosecute offenders and protect children.

The legislation for England and Wales which deals with offences concerning indecent images of children are:

• Protection of Children Act 1978 1978 (PCA 1978) – s 1
• Criminal Justice Act 1988 (CJA 1988) – s 160

Both provisions create offences in respect of indecent photographs or pseudo-photographs of a child. A pseudo-photograph means an image, whether made by computer graphics or in any other way, which appears to be a photograph.

A child is a person aged under 18 (s 7(6) of PCA 1978). If the age of the child photographed is not known, this is an issue for the jury to decide, without the assistance of experts. Often direct evidence will be rare so a common sense approach on the part of the jury is required.

What is indecent is for the jury to decide, based on a recognised standard of proprietary. The test is objective and the circumstances in which the photograph came to be taken and motive of the taker are not relevant; it is the photograph of the child which must be indecent not the defendant’s conduct.

It is an offence under s 1 of PCA 1978 to:

• take, permit to be taken, or to make any indecent photographs or pseudo-photographs of a child;
• distribute or show such indecent photographs or pseudo-photographs;
• have in a person’s possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by themselves or others;
• 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 160 of CJA 1988 covers the offence of possession of an indecent image of a child. There is no requirement that the defendant had to have any motive in relation to making or distributing the image – all that is required is that the defendant had the image in their possession.

Someone will only be in possession of an image when they had custody and control over the image at that time. If at the time of possession the image is beyond his control he will not be deemed to possess it.

This defence is available under CPA 1978 for offences of distributing the photographs or possession with intent to distribute and for possession under CJA 1988. Legitimate reason is not defined by the legislation, but courts have held it could cover genuine research where a researcher had no choice but to have such material in their possession.

This defence is available under CPA 1978 for offences of distributing the photographs or possession with intent to distribute and for possession under CJA 1988. This defence will succeed if the accused can show he had not seen the photographs at issue and did not know nor have any cause to suspect them to be indecent.

This defence is available under CPA 1978 for offences of distributing the photographs or possession with intent to distribute. It is made out if the accused proves that the photo was sent to him without any prior request by him or on his behalf and that he did not keep it for an unreasonable time.

Due to the definition of a child being changed from 16 to 18 years old, and it still being legal to marry when a person is 16, it is necessary that this defence is in place. It is available for both CPA 1978 and CJA 1988.

The defence is available where someone ‘making’ an indecent photograph or pseudo-photograph under CPA 1978 can show it was necessary to do so to prevent, detect or investigate a crime, or for the purposes of criminal proceedings. This defence would apply to defence lawyers, police officers, prosecutors, and judges.

The normal position for legislation existing in England and Wales is that it will only apply to offences occurring in England and Wales. However, the provisions under s 1 of CPA 1978 and s 160 of CJA 1988 now have extra-territorial protection due to s 72 of the Sexual Offences Act 2003.

Accordingly, any act carried out by a person in a country or territory outside the UK shall constitute a sexual offence under UK law if it would constitute an offence under the laws of that territory and it would also constitute a sexual offence under the laws of England and Wales.