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Which legislation covers Indecent Images of Children?
Offences are, in the main, covered by the following two Acts:-
What is the aim and scope of this legislation?
In R v Land  1 Cr. App. R. 301, the Court of Appeal described the legislation in this area as follows:
“[Its] object is to protect children from exploitation and degradation. Potential damage to the child occurs when he or she is posed or pictured indecently, and whenever such an event occurs the child is being exploited. It is the demand for such material which leads to the exploitation of children and the purposes of the [legislation] is to reduce, indeed as far as possible to eliminate, trade in or possession of it. At the same time statutory defences provide a framework protecting from conviction those whose possession of such material is not prurient”.
What are the common elements of both Acts?
There are three common elements in terms of the offences created by the Acts, as follows:-
- photographs or pseudo-photographs of
- a child (person under 18 years of age)
As regards legal definitions for these terms, there is case law and guidance from the Crown Prosecution Service (CPS) to assist decision makers within the judicial system, as well as specific information within the Acts themselves.
What conduct is prohibited by Section 1 of the PCA 1978?
The prohibited conduct involving indecent photographs or pseudo-photographs of children is as follows:-
- To take or permit to be taken or make any such photograph
- Distribute or show any such photograph.
- Have in his possession any such photograph with a view to it being distributed or shown by himself or others.
- Publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows any such photographs or intends to do so.
There is detailed guidance from the CPS regarding each of the above elements which can be referred to for further information.
What sentencing powers do the courts have for offences prosecuted under the PCA 1978?
The offence is an either way offence, which means it can be heard in the magistrates’ or crown court, depending on the seriousness of the offence. The sentencing powers of the magistrates’ court are limited to a custodial sentence of six months. More serious offences would be committed up to the crown court, where they would be punishable on indictment with up to ten years’ imprisonment.
What conduct is prohibited by Section 160 of the CJA 1988?
Section 160(1) of the Act creates an offence for a person to have any indecent photograph or pseudo-photograph of a child in their possession.
It should be noted that “possession” involves both a physical and mental element, as follows:-
- The physical element is that a person must have custody and control of the photographs stored on a device in order to possess them
- The mental element is knowledge. A defendant must knowingly have custody and control of the photographs found on the device in question.
What sentencing powers do the courts have for offences prosecuted under the CJA 1988?
The offence is an either way offence, which means it can be heard in the magistrates’ or crown court, depending on the seriousness of the offence. The sentencing powers of the magistrates’ court are limited to a custodial sentence of six months. More serious offences would be committed up to the crown court, where they would be punishable on indictment with up to ten years’ imprisonment. It is therefore a very serious matter and it is vital that you seek specialist help from our indecent images solicitors.
If a person is charged with the above offences, are there any defences?
Yes. You should be aware that defending a case like this is highly complex and technical, and you will need help from our indecent images solicitors.
There are five statutory defences:-
- Three apply in broadly similar terms to some forms of prohibited conduct under section 1 of the PCA 1978 and to possession under section 160 of the CJA 1988.
- One applies to offences under section 160 of the CJA 1988 only.
- One applies to offences of making under section 1(1)(a) of the PCA 1978 only.
In brief, the five statutory defences are as follows:-
- legitimate reason
- ‘lack of awareness’
- unsolicited photographs
- marriage and other relationships
- criminal proceedings and investigations