Defences to Section 1 Protection of Children Act 1978 – Making Indecent Images of Children
The following are the only defences to section 1(1)(a) and section 1(1)(d) of the PCA 1978:
- section 1A of the Protection of Children Act which covers marriage, etc. of a child aged 16 or 17) or
- section 1B of the Protection of Children Act as amended by section 46 of the Sexual Offences Act 2003, which is an exception for criminal proceedings and investigations etc.
The section 1B defence is available where a person “making” an indecent photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. Archbold 31 – 107a and 31 – 107b.
This reverse burden defence is intended to allow people instructed to act for the defence or prosecution who need to be able to identify and act on the receipt of an indecent photograph or pseudo-photograph, to deal with such images.
This defence will also apply to defence solicitors, counsel, police officers, prosecutors, Judges, Computer Forensic Experts and others who have to deal with indecent images of children in the course of their work etc.
The CPS and Association of Chief Police Officers (ACPO) signed a Memorandum of Understanding in 2004 which provides guidance to those who have a legitimate need to handle indecent images of children by setting out how the defence provided in section 1B of the Protection of Children Act 1978 may be applied.
The Memorandum provides guidance to the Police Service, CPS, Computer Forensic Experts and others involved in the internet industry, in order to create the right balance between protecting children and effective investigation and prosecution of offences.
Section 1(4) of the Protection of Children Act 1978 provides two defences to the offences listed in section 1(1)(b) (distribute or show) and section 1(1)(c) (possess with a view to their being distributed or shown) of the Protection of Children Act 1978. Archbold 31- 107.
The defendant may suggest that he did not deliberately or intentionally cause the creation of the images, for example, they may state that they were looking at adult pornography sites, or even sites not connected with pornography at all, when child pornography sites popped up on the screen uninvited.
In order to refute such a defence a computer forensic expert should be able to show the source of the images and whether the Defendant visited or searched for sites of that nature and whether the location images would have required the Defendant to have deliberately stored them.
The defendant may also suggest that someone else could have had access to the computer and could have caused the creation of the images. The police should always cover this in interview with the defendant.
If others do have access, e.g. other family members or colleagues, then it may be possible to review the activity on the computer at or around the point of creation of the relevant images to determine whether any of that activity can be attributed to a particular individual.
For example, if emails or social media accounts are accessed, that activity could relate to someone other than the Defendant. It is also possible to examine a computer to assess whether it has been accessed remotely by a third party user or whether the images had been stored without the deliberate actions of the user.
Defences to Section 160 Criminal Justice Act 1988 – Possessing Indecent Images of Children
Section 160 Criminal Justice Act 1988 covers the offence of possession of an indecent photograph of a child. There are four defences to this offence: three are listed in section 160(2) CJA 1988, Archbold 31 – 115, and one is listed in section 160A.
Three of these defences are very similar to those that apply to some of the offences under section 1 Protection of Children Act 1978, i.e. marriage, etc of a child aged 16 or 17, legitimate reason, and the defendant’s lack of knowledge.
The fourth defence, which is not found in the Protection of Children Act 1978, is that the photograph or pseudo-photograph was sent to the defendant without any prior request made by him and he did not keep it for an unreasonable time.
For the mental element that the prosecution must prove; and what appears to be a photograph (or pseudo-photograph see Atkins v DPP; Goodlands v DPP  2 Cr App R 248, Archbold 31- 118. This needs to be read in the context of the Court of Appeal judgment of R v Porter  EWCA Crim 560.
Atkins v DPP – Indecent Images of Children Created by Different Users and/or Generated Automatically
Atkins v DPP is significant, in particular with respect to:
- Computers with multiple users, where there is no forensic evidence as to which user accessed a site, and
- Prosecutions relating to possession of material stored within automatically generated areas of the hard drive.
A computer forensic examination of the hard drive can usually identify what material is held within the temporary internet cache and, assuming the identity of the user is known, such material may equally attract a charge of ‘making’ each such image without the need to prove knowledge of the automatic cache.
If a user is demonstrated (e.g. by admission, or by proof that he has accessed the temporary internet file off-line) to have known of the existence and effect of automatic operating software, the offence of possession may arise. Archbold 31 – 118.
R-v-Porter – Possession of Indecent Images of Children
In R v Porter the Court of Appeal held that an image will only be considered in possession if the defendant had custody or control of the image at that time. If at the time of possession the image is beyond his control, then he will not possess it.
This has implication for the use of computer forensic examinations if an image has been deleted, ‘possession’ will depend on whether the defendant had the know-how and or the software to allow him to retrieve the image.
Where, however, the offender admits that he downloaded the image or accessed it on the Internet then a charge of ‘making’ under section 1 Protection of Children Act 1978 may arise. Archbold 31 – 118.
Subsection 160(2)(c) of the Criminal Justice Act 1988
The defendant must prove both ‘that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf’ and that ‘he did not keep it for an unreasonable time’.
The Act does not prescribe what constitutes a ‘prior request’, nor does it define the parameters of ‘unreasonable time’.
In particular, it is not clear whether time runs from when the image was received by the computer, or when it was known by a defendant to have been received. Consistent with the necessary mental element, the latter is likely. Archbold 31 – 119.
Defence – legitimate reason for the Possession of Indecent Images of Children
‘Legitimate reason’ is not defined anywhere in the Act. It follows that a particular defendant may advance a range of possibilities for any admitted possession of such material.
The provision clearly afforded (prior to section 46 SOA 2003, which introduced an exception for criminal proceedings and investigations) a defence to any party within the criminal justice system who of necessity must have possession of evidential material.
There is, of course, no licence to an individual prosecutor or expert to retain material beyond the proper requirements of a particular case.
A defendant claiming ‘legitimate reason’ is presumed to admit possession of the qualifying material. The language of the Act appears to place both the evidential and legal burdens upon the defendant and following Sheldrake v DPP; Attorney General’s Reference No 4 of 2002  1 AC 264 it is likely that this will be accepted.
As with other such defences that must be raised and proved by a defendant, the standard of proof is civil, namely that the defendant has established that ‘it is more likely than not’ that there was a legitimate reason for his possession of material.
Disclosure of Indecent Images of Children to the Defence
If the defendant’s solicitor or counsel or computer forensic expert (for any reason) wishes to view the indecent photographs/pseudo-photographs or examine the defendant’s hard drive, the prosecution should provide the defence with suitable access to the relevant material.
Such access must enable the defendant to have private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS.
Whenever possible, such access should take place either on police premises, or at the offices of either the defendant’s solicitors or the offices of the defence or prosecution expert.
The Defendant should, of course, only be permitted access whilst in the company of their legal representative.
Written by Athena Forensics. Computer Forensic and Mobile Phone Forensic Investigation and Expert Witness Services Throughout the UK www.athenaforensics.co.uk
0330 123 4448
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