There have been some landmark cases that have applied the PCA 1978 and section 160 CJA 1988 with varying effect; the most important ones are listed below. Archbold 31 – 108a.
The age of a child is ultimately for the jury to determine. See R v Land  1 Cr App R 301 Archbold 31 – 109 and R v Charles William Owen (1988) 86 Cr App R 291 Archbold 31 – 108a.
In the case of Fellows and Arnold  1 Cr App R 244 providing another with a password to enable him to access pornographic data stored on a computer was said to be ‘showing’ him the data.
The downloading and/or printing of indecent images of children from the internet, is capable of amounting to an offence of ‘making’ the image contrary to section 1 (1) (a) of the PCA 1978. See R v Bowden  1 Cr App R 438, Archbold 31 – 108a.
Atkins v DPP; Goodlands v DPP  2 Cr App R 248 stated that knowledge was an essential ingredient of the offences of ‘making’ and /or possessing indecent photographs of children. Atkins v DPP also dealt with the legitimate reason defence. Archbold 31 – 108a.
The case of R v Westgarth Smith; Jayson  EWCA Crim 683 stated that downloading an image that was capable of being converted into a photograph on to a screen or opening an email attachment is an act of making that image, subject to the requisite mens rea, Archbold 31 – 108a.
The case of R v Oliver, Hartrey and Baldwin Times Law Report, 6 December 2002 divided indecent images of children into five categories, and gave sentencing guidelines based on the categories. The sentencing guidelines have been amended by guidance from the Sentencing Council.
In R (on behalf of O’Shea) v Coventry Magistrates’ Court  EWHC Admin 905 the Divisional Court accepted that it was possible to incite another to distribute indecent images of children even where the ‘purchase’ of images was a fully-automated process.
In R v Porter  EWCA Crim 560 to have possession of an image you should have custody or control of it. Crown Prosecution Service v LR  EWCA Crim 924
Where an indecent image is of a child; prosecutors should charge the suspect with an offence contrary to section 1 PCA 1978 or section 160 CJA 1988 and not a charge of extreme pornography. See R v Stephen Neal  EWCA Crim 461 where the Court of Appeal held that it was unfair for an individual purchaser of a book to be prosecuted for possession of photographs in that book when the publisher and / or the retailer were not prosecuted.
Written by Athena Forensics. Computer Forensic and Mobile Phone Forensic Investigation and Expert Witness Services Throughout the UK www.athenaforensics.co.uk
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