The two main offence provisions in relation to indecent images of children are section 1 of the Protection of Children Act 1978 (PCA 1978) and section 160 of the Criminal Justice Act 1988 (CJA 1988). The PCA 1978 addresses certain aspects of the sexual exploitation of children by penalizing the making, distribution, showing and advertisement of indecent photographs of them. The test to be applied in respect of indecent images of children is whether or not it is indecent. The word ‘indecent’ has not been defined by the PCA 1978, but case law has said that it is for the jury to decide based on the recognized standards of propriety.
Section 1 PCA1978 covers a wide range of offences concerning indecent photographs of children. Furthermore, it extends to the making of ‘pseudo-photographs’, defined as ‘an image, whether made by computer graphics or otherwise, which appears to be a photograph’. Throughout the Act pseudo-photographs are put on the same footing as actual photographs. It is possible to convict a person of making a pseudo-photograph where the dominant impression conveyed is that the person shown is a child, notwithstanding that some of the physical characteristics shown are those of an adult (section 7(8) PCA 1978). Archbold 31 – 114.
The PCA 1978 and section 160 CJA 1988 deal only with indecent photographs and pseudo-photographs of children. Other statues therefore, have to be used to prosecute offences involving drawings, sound and text-based stories. The primary law in relation to this is the Obscene Publication Act 1959, (the test is does the material have a tendency to ‘deprave and corrupt’?).
Offences relating to associated actual conduct with children are contained in sections 10, 11 and 48 – 50 of the Sexual Offences Act 2003. There are of course other offences where the internet may be the vehicle of communication under that Act, such as arranging or facilitating the commission of a child sex offence (section 14), and the “grooming” offence under section 15.
Section 1 Protection of Children Act 1978
Section 1(1) of the PCA 1978 creates a number of offences and has been given a wide interpretation by the courts. These are either way offences with a maximum term of imprisonment of ten years if convicted on indictment.
For an offence under section 1 PCA 1978 the prosecution has to prove:
- That the defendant deliberately and/or knowingly either, made, took, or permitted to be taken, distributed or showed indecent photographs or pseudo-photographs, or possessed them with a view to their being distributed or shown, published or caused to be published an advertisement for indecent photographs.
- The photograph or pseudo-photograph was indecent. Indecent photograph includes an indecent film, or a copy of a photograph or film, or computer data capable of conversion into a photo a copy. See section 7 PCA 1978. The test for indecency is for the jury to decide based on what is the recognized standard of propriety. R v Stamford [1972] 2 Q.B. 391. The circumstances and motive of the defendant are not relevant to the question of indecency, although they may be relevant to the question of whether the photograph was deliberately taken or made, R v Graham-Kerr 88 Cr App R 302 CA; R v Smethurst [2002] 1 Cr App R 6, CA. Archbold 31 – 114.
- The photograph or pseudo-photograph was of a child section 7(6) of the PCA 1978. Archbold 31 – 114. The definition of a child was altered from 16 to 18 years by section 45(1) of the Sexual Offences Act 2003, in force from 01 May 2004. The age of a child is ultimately for the jury to determine. It is a finding of fact for the jury, and expert evidence is inadmissible on the subject, since it is not a subject requiring the assistance of experts R v Land [1998] 1 Cr App R 301, CA. See also section 2(3) PCA 1978.
Sentencing Guidelines
Effective from: 01 April 2014
Triable either way
Maximum: 5 years’ custody
Offence range: Community order – 3 years’ custody
Triable either way
Maximum: 10 years’ custody
Offence range: Community order – 9 years’ custody
For section 1 offences committed on or after 3 December 2012, this is an offence listed in Part 1 of Schedule 15B for the purposes of section 224A (life sentence for second listed offence) of the Criminal Justice Act 2003.
For convictions on or after 3 December 2012 (irrespective of the date of commission of the offence), these are specified offences for the purposes of section 226A (extended sentence for certain violent or sexual offences) of the Criminal Justice Act 2003.
Step 1 – Determining the offence category
The court should determine the offence category using the table below.
| Possession | Distribution [1] | Production [2] | |
|---|---|---|---|
| Category A | Possession of images involving penetrative sexual activity. Possession of images involving sexual activity with an animal or sadism. | Sharing images involving penetrative sexual activity. Sharing images involving sexual activity with an animal or sadism. | Creating images involving penetrative sexual activity. Creating images involving sexual activity with an animal or sadism. |
| Category B | Possession of images involving non-penetrative sexual activity. | Sharing of images involving non-penetrative sexual activity. | Creating images involving non-penetrative sexual activity. |
| Category C | Possession of other indecent images not falling within categories A or B. | Sharing of other indecent images not falling within categories A or B. | Creating other indecent images not falling within categories A or B. |
[1] Distribution includes possession with a view to distributing or sharing images. [2] Production includes the taking or making of any image at source, for instance the original image. Making an image by simple downloading should be treated as possession for the purposes of sentencing.
In most cases the intrinsic character of the most serious of the offending images will initially determine the appropriate category. If, however, the most serious images are unrepresentative of the offender’s conduct a lower category may be appropriate. A lower category will not, however, be appropriate if the offender has produced or taken (for example photographed) images of higher category.
Step 2 – Starting point and category range
Having determined the category, the court should use the corresponding starting points to reach a sentence within the category range below. The starting point applies to all offenders irrespective of plea or previous convictions. Having determined the starting point, step two allows further adjustment for aggravating or mitigating features, set out below. Where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement under section 202 of the Criminal Justice Act 2003 can be a proper alternative to a short or moderate length custodial sentence.
| Possession | Distribution | Production | |
|---|---|---|---|
| Category A | Starting point 1 year’s custody Category range 26 weeks’ – 3 years’ custody | Starting point 3 years’ custody Category range 2 – 5 years’ custody | Starting point 6 years’ custody Category range 4 – 9 years’ custody |
| Category B | Starting point 26 weeks’ custody Category range High level community order – 18 months’ custody | Starting point 1 year’s custody Category range 26 weeks’ – 2 years’ custody | Starting point 2 years’ custody Category range 1 – 4 years’ custody |
| Category C | Starting point High level community order Category range Medium level community order – 26 weeks’ custody | Starting point 13 weeks’ custody Category range High level community order – 26 weeks’ custody | Starting point 18 months’ custody Category range 1 – 3 years’ custody |
Community orders tableCustodial sentences
Below is a non-exhaustive list of additional factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these, or other relevant factors, should result in an upward or downward adjustment from the starting point. In particular, relevant recent convictions are likely to result in an upward adjustment. In some cases, having considered these factors, it may be appropriate to move outside the identified category range.
When sentencing appropriate category B or C offences, the court should also consider the custody threshold as follows:
- has the custody threshold been passed?
- if so, is it unavoidable that a custodial sentence be imposed?
- if so, can that sentence be suspended?
Aggravating factors
Statutory aggravating factors
- Previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction
- Offence committed whilst on bail
Other aggravating factors
- Failure to comply with current court orders
- Offence committed whilst on licence
- Age and/or vulnerability of the child depicted [1]
- Discernable pain or distress suffered by child depicted
- Period over which images were possessed, distributed or produced
- High volume of images possessed, distributed or produced
- Placing images where there is the potential for a high volume of viewers
- Collection includes moving images
- Attempts to dispose of or conceal evidence
- Abuse of trust
- Child depicted known to the offender
- Active involvement in a network or process that facilitates or commissions the creation or sharing of indecent images of children
- Commercial exploitation and/or motivation
- Deliberate or systematic searching for images portraying young children, category A images or the portrayal of familial sexual abuse
- Large number of different victims
- Child depicted intoxicated or drugged
Mitigating factors
- No previous convictions or no relevant/recent convictions
- Remorse
- Previous good character and/or exemplary conduct [2]
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability, particularly where linked to the commission of the offence
- Demonstration of steps taken to address offending behaviour
[1] Age and/or vulnerability of the child should be given significant weight. In cases where the actual age of the victim is difficult to determine sentencers should consider the development of the child (infant, pre‑pubescent, post-pubescent).
[2] Previous good character/exemplary conduct is different from having no previous convictions. The more serious the offence, the less the weight which should normally be attributed to this factor. Where previous good character/exemplary conduct has been used to facilitate the offence, this mitigation should not normally be allowed and such conduct may constitute an aggravating factor.
Step 3 – Consider any factors which indicate a reduction, such as assistance to the prosecution
The court should take into account sections 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered) to the prosecutor or investigator.
Step 4 – Reduction for guilty pleas
The court should take account of any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Guilty Plea guideline.
Step 5 – Dangerousness
The court should consider whether having regard to the criteria contained in Chapter 5 of Part 12 of the Criminal Justice Act 2003 it would be appropriate to award a life sentence (section 224A) or an extended sentence (section 226A). When sentencing offenders to a life sentence under these provisions, the notional determinate sentence should be used as the basis for the setting of a minimum term.
Step 6 – Totality principle
If sentencing an offender for more than one offence, or where the offender is already serving a sentence, consider whether the total sentence is just and proportionate to the offending behaviour.
Step 7 – Ancillary orders
The court must consider whether to make any ancillary orders. The court must also consider what other requirements or provisions may automatically apply. Further information is included the Ancillary orders annex.
Step 8 – Reasons
Section 174 of the Criminal Justice Act 2003 imposes a duty to give reasons for, and explain the effect of, the sentence.
Step 9 – Consideration for time spent on bail
The court must consider whether to give credit for time spent on bail in accordance with section 240A of the Criminal Justice Act 2003.
Written by Athena Forensics. Computer Forensic and Mobile Phone Forensic
Investigation and Expert Witness Services Throughout the UK
www.athenaforensics.co.uk
0845 882 7386
