Indecent Images Offences Prosecutions
๐น Legal Framework Overview
1. Protection of Children Act 1978 (PCA 1978)
Makes it an offence to take, make, distribute, show or possess with intent to distribute indecent photographs or pseudo-photographs of children.
"Making" includes downloading or saving an image from the internet, even if not created by the user.
2. Criminal Justice Act 1988 (CJA 1988)
Section 160: Offence of simple possession of indecent images of children (IIOC).
The image must be "indecent" and feature a child (under 18).
3. Sexual Offences Act 2003
Raises the age of a child from under 16 to under 18 in many legal contexts.
Introduced various grooming and exploitation offences relevant in image-based abuse.
4. Coroners and Justice Act 2009
Section 62 criminalises the possession of prohibited images of children (e.g. computer-generated or cartoon images that are pornographic and grossly offensive or disgusting).
๐น Key Concepts
"Indecency" is a question of fact for the jury or magistrates, guided by current standards of propriety.
"Making" includes downloading, screen-capturing, and storing images.
"Pseudo-photographs" include computer-generated or altered images made to resemble photographs.
๐น Case Law Analysis
Here are six important cases that have significantly shaped how the law is applied in relation to indecent images:
1. R v Bowden [2000] 1 Cr App R 438
๐ธ Facts:
A local authority employee accessed and downloaded indecent images of children onto his work computer.
He was prosecuted for making indecent photographs under the PCA 1978.
๐ธ Legal Issue:
Whether downloading images from the internet amounts to "making" an image under the statute.
๐ธ Held:
Yes. The Court held that downloading or saving an image creates a new copy, and therefore constitutes โmakingโ an indecent image.
๐ธ Significance:
Established that passive actions (like downloading or saving) can be criminal if they result in the creation of an image on a device.
2. R v Oliver, R v Hartrey, R v Baldwin [2003] EWCA Crim 1764
๐ธ Facts:
Three appeals regarding possession of indecent images of children.
Raised issues about sentencing and the categorisation of images.
๐ธ Legal Issue:
How should sentencing courts distinguish between levels of seriousness of images?
๐ธ Held:
The Court of Appeal introduced a five-level classification system for indecent images (Level 1 = least severe, Level 5 = most severe).
๐ธ Significance:
This classification now underpins sentencing guidelines and allows courts to assess the seriousness of the material in sentencing decisions.
3. R v Smith & Jayson [2002] EWCA Crim 683
๐ธ Facts:
The defendants were prosecuted for possessing and distributing indecent images of children.
They argued that the images were not indecent due to being artistic or non-sexual.
๐ธ Legal Issue:
What constitutes "indecency"?
๐ธ Held:
The court reaffirmed that indecency is a matter for the jury, and there is no need for a specific definition; it relies on community standards and context.
๐ธ Significance:
Confirmed that subjective artistic intent does not override community standards of decency.
4. R v Porter [2006] EWCA Crim 560
๐ธ Facts:
A teacher had deleted indecent images from his computer, but forensic recovery found traces.
He was charged with possession of indecent images.
๐ธ Legal Issue:
Does a person "possess" an image that has been deleted and is only retrievable by forensic means?
๐ธ Held:
No. The Court of Appeal quashed the conviction, holding that possession requires accessibility and control of the image in a usable form.
๐ธ Significance:
Set limits on the technical definition of possession, especially in cases of deleted files and temporary cache storage.
5. R v Fellows and Arnold [1997] 1 Cr App R 244
๐ธ Facts:
The defendants ran a computer bulletin board with indecent images of children, distributing them online.
๐ธ Legal Issue:
Do digital images qualify as "photographs" or "pseudo-photographs" under the PCA 1978?
๐ธ Held:
Yes. The Court ruled that computer files containing digital images are photographs for the purposes of the legislation.
๐ธ Significance:
A landmark decision that updated the law for the digital age, allowing prosecution of online image offences under existing laws.
6. R v Collier [2005] EWCA Crim 1083
๐ธ Facts:
Collier was convicted of possessing indecent images found in internet cache files.
He argued he did not knowingly download or save the images.
๐ธ Legal Issue:
Does accidental or automatic storage of images in cache memory count as possession?
๐ธ Held:
The court considered intent and knowledge crucial. Without knowing control, it may not amount to possession.
๐ธ Significance:
Reinforces the requirement that mens rea (a guilty mind) must accompany possession.
๐น Additional Concepts and Sentencing Guidelines
โค Sentencing Guidelines (Post-R v Oliver):
Aggravating factors: large number of images, higher categories, distribution, breach of trust (e.g., teachers).
Mitigating factors: low number of images, early plea, genuine remorse, no prior history.
Sentences range from community orders to substantial custody, particularly where distribution is involved.
๐น Conclusion
Indecent image offences are taken extremely seriously in UK law, and courts have consistently interpreted the legislation broadly to protect children. These cases show how the law has evolved to address technological developments like the internet and digital media, and to ensure that offences like possession, distribution, and making of IIOC are robustly prosecuted.
RELATED Blog
0 comments