Sexual Offences Against Children

Question 1

Sexual Activity with a Child—Sexual Offences Act 2003, s. 9

Answer 1

• If involves penetration of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or of defendant’s mouth by victim’s penis—triable on indictment; 14 years’ imprisonment
• Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 9 states:
(1)
A person aged 18 or over (A) commits an offence if—
(a)
he intentionally touches another person (B),
(b)
the touching is sexual, and
(c)
either—
(i)
B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii)
B is under 13.

Question 2

Sexual Activity with a Child

Answer 2

You must show that the defendant intentionally touched the victim sexually and either that the victim was under 13 (in which case the offence is complete) or that the victim was under 16 and that the defendant did not reasonably believe he/she was 16 or over. In either case, consent is irrelevant.

The sexual activity caused or envisaged may be with the defendant or with a third person. In the case of incitement, there is no need for the sexual activity itself to take place.

Question 3

Causing or Inciting a Child to Engage in Sexual Activity—Sexual Offences Act 2003, s. 10

Answer 3

• If it involves penetration of the victim’s anus or vagina, of victim’s mouth with penis, of any other person’s anus or vagina with a part of victim’s body or by victim, or of any person’s mouth by victim’s penis—triable on indictment; 14 years’ imprisonment
• Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or fine summarily

The Sexual Offences Act 2003, s. 10 states:
(1)
A person aged 18 or over (A) commits an offence if—
(a)
he intentionally causes or incites another person (B) to engage in an activity,
(b)
the activity is sexual, and
(c)
either —
(i)
B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii)
B is under 13.

Question 4

Causing or Inciting a Child to Engage in Sexual Activity

Answer 4

Where the child is aged 13 or over, but under 16, the prosecution must prove that A did not reasonably believe that he/she was 16 or over. The sexual activity which is caused or incited may be activity with A (for example, where A causes or incites the child to have sexual intercourse with him), on the child him/herself (for example, where A causes or incites the child to strip for A’s sexual gratification) or with a third person (for example, where A causes or incites the child to have sexual intercourse with A’s friend). The incitement constitutes an offence whether or not the activity incited actually takes place. Whether or not the child consented to the activity caused or incited, or to the incitement, is irrelevant.

Question 5

Engaging in Sexual Activity in the Presence of a Child—Sexual Offences Act 2003, s. 11

Answer 5

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 11 states:
(1)
A person aged 18 or over (A) commits an offence if—
(a)
he intentionally engages in an activity,
(b)
the activity is sexual,
(c)
for the purpose of obtaining sexual gratification, he engages in it—
(i)
when another person (B) is present or is in a place from which A can be observed, and
(ii)
knowing or believing that B is aware, or intending that B should be aware, that he is engaging in it, and
(d)
either—
(i)
B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii)
B is under 13.

Question 6

Engaging in Sexual Activity in the Presence of a Child

Answer 6

The activity in which the offender is engaged must be ‘sexual’ and intentional and must be in order to obtain sexual gratification (for the defendant).

A person under 16 must be present or in a place from which the defendant can be observed and the defendant must know, believe or intend that the child was aware that he/she was engaging in that activity. Therefore, it is not necessary to show that the child was in fact aware of the activity in every case. Because of the wording in s. 79(7), ‘observation’ includes direct observation or by looking at any image.

In relation to the child, you must show that either the child was under 13 (in which case the offence is complete) or that
he/she was under 16 and that the defendant did not reasonably believe him/her to be 16 or over.

This offence is aimed at, for example, people masturbating in front of children or performing sexual acts with others where they know they can be seen (or they want to be seen) by children directly or via a camera/video phone etc.

Question 7

Causing a Child to Watch a Sexual Act—Sexual Offences Act 2003, s. 12

Answer 7

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 12 states:
(1)
A person aged 18 or over (A) commits an offence if—
(a)
for the purpose of obtaining sexual gratification, he intentionally causes another person (B) to watch a third person engaging in an activity, or to look at an image of any person engaging in an activity,
(b)
the activity is sexual, and
(c)
either—
(i)
B is under 16 and A does not reasonably believe that B is 16 or over, or
(ii)
B is under 13.

Question 8

Causing a Child to Watch a Sexual Act

Answer 8

This offence is concerned with intentionally causing a child to watch a third person engaging in sexual activity or to look at an image of a person engaging in sexual activity. ‘Image’ includes a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image (s. 79(4)); it also includes images of an imaginary person (s. 79(5)).

The display of sexual images or sexual activity might, in certain circumstances, be appropriate, for example for medical or educational reasons, hence the requirement that the offence depended on the corrupt purpose of ‘sexual gratification’. The offence under s. 12 of the Act does not require that such gratification has to be taken immediately; i.e. the section does not require that the offence can only be committed if the proposed sexual gratification and the viewed sexual act, or display of images, were simultaneous, contemporaneous or synchronised. For example, the defendant may cause a child to watch a sexual act to put the child in a frame of mind for future sexual abuse, as well as where the defendant does so to obtain enjoyment from seeing the child watch the sexual act (R v Abdullahi [2006] EWCA Crim 2060). The approach to ‘sexual gratification’ taken in Abdullahi is equally applicable to other offences where this phrase appears (the offences under ss. 11 and 15A of the Act, for example).

You must show that either the child was under 13 (in which case the offence is complete) or that he/she was under 16 and that the defendant did not reasonably believe him/her to be 16 or over.

Question 9

Child Sex Offences Committed by Children or Young Persons

Answer 9

The offences under ss. 9 to 12 can only be committed by a person aged 18 or over. So what happens if the offender is under 18? This situation is catered for by s. 13(1) of the Sexual Offences Act 2003 which states that a person under 18 commits an offence under this section (s. 13) if he/she does anything which would be an offence under any of ss. 9 to 12 if he/she were aged 18. A person guilty of an offence under s. 13 is liable:

• on conviction on indictment, to imprisonment for a term not exceeding five years; or
• on summary conviction, to imprisonment for a term not exceeding six months and/or a fine.

Question 10

Arranging or Facilitating Commission of Child Sex Offence—Sexual Offences Act 2003, s. 14

Answer 10

• Triable either way
• 14 years’ imprisonment on indictment
• Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 14 states:
(1)
A person commits an offence if—
(a)
he intentionally arranges or facilitates something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world, and
(b)
doing it will involve the commission of an offence under any of sections 9 to 13.

Question 11

Arranging or Facilitating Commission of Child Sex Offence

Answer 11

The relevant offences are those set out in ss. 9 to 13 of the Act described in the earlier paragraphs of this chapter.

The offence applies to activities by which the defendant intends to commit one of those relevant child sex offences him/herself, or by which the defendant intends or believes another person will do so, in either case in any part of the world. The offence is complete whether or not the sexual activity actually takes place. Examples of the offence would include a defendant approaching a third person to procure a child to take part in sexual activity with him or where the defendant makes travel arrangements for another in the belief that the other person will commit a relevant child sex offence.

This part of the Act specifically excludes the actions of those acting for the child’s protection who arrange or facilitate something that they believe another person will do, but that they do not intend to do or intend another person to do.

Acting for the child’s protection must fall within one of the following:
* protecting the child from sexually transmitted infection;
* protecting the physical safety of the child;
* preventing the child from becoming pregnant; or
* promoting the child’s emotional well-being by the giving of advice, and not for obtaining sexual gratification or for causing or encouraging the activity constituting the relevant child sex offence or the child’s participation in it. This statutory exception (contained in s. 14(2) and (3)) covers activities such as health workers supplying condoms to people under 16 who are intent on having sex in any event and need protection from infection.

Question 12

Meeting a Child Following Sexual Grooming—Sexual Offences Act 2003, s. 15

Answer 12

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 15 states:
(1)
A person aged 18 or over (A) commits an offence if—
(a)
A has met or communicated with another person (B) on one or more occasions and subsequently—
(i)
A intentionally meets B,
(ii)
A travels with the intention of meeting B in any part of the world or arranges to meet B in any part of the world, or
(iii)
B travels with the intention of meeting A in any part of the world,p. 549
(b)
A intends to do anything to or in respect of B, during or after the meeting mentioned in paragraph (a)(i) to (iii) and in any part of the world, which if done will involve the commission by A of a relevant offence,
(c)
B is under 16, and
(d)
A does not reasonably believe that B is 16 or over.

Question 13

Meeting a Child Following Sexual Grooming

Answer 13

The initial action of the defendant involves either a meeting or a communication with the victim (who must be under 16) on at least one previous occasion. Such meetings or communications can be innocuous, such as family occasions or during the course of youth activities and so on. The only requirement prior to an intentional meeting during which an offender intends to do anything to a complainant which, if carried out, would involve the commission by the offender of a relevant offence is a meeting or communication ‘on one or more occasions’. There is no requirement that either communication be sexual in nature (R v G [2010] EWCA Crim 1693).

The communication can include text messaging or interactions in internet ‘chat rooms’. Such contact can have taken place in any part of the world.

Once the earlier meeting or communication has taken place, the offence is triggered by:

• an intentional meeting with the victim;
• a defendant travelling with the intention of meeting the victim;
• a defendant arranging to meet the victim;
• the victim travelling to meet the defendant in any part of the world.

The activity at s. 15(1)(a)(iii) means that an offence will be committed by an adult where a child under 16 travels to meet the adult or the adult arranges to meet the child.

At the time of any of the above activities, the defendant must intend to do anything to or in respect of the victim, during or even after the meeting, that would amount to a relevant offence. A relevant offence here is generally any offence under part I of the Act (all the offences covered in this chapter). Note that the intended offence does not have to take place.

You must show that the victim was under 16 and that the defendant did not reasonably believe that he/she was 16 or over.

Question 14

Sexual Communication with a Child—Sexual Offences Act 2003, s. 15A

Answer 14

• Triable either way
• Two years’ imprisonment on indictment
• Six months’ imprisonment summarily

The Sexual Offences Act 2003, s. 15A states:
(1)
A person aged 18 or over (A) commits an offence if—
(a)
for the purpose of obtaining sexual gratification, A intentionally communicates with another person (B),
(b)
the communication is sexual or is intended to encourage B to make (whether to A or another) a communication that is sexual, and,
(c)
B is under 16, and A does not reasonably believe that B is 16 or over.

Question 15

‘Sexual’

Answer 15

The definition of the term ‘sexual’ under s. 78 of the Act does not apply to this offence.

For the purposes of this section, a communication is sexual if—

• any part of it relates to ‘sexual activity’; or
• a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual.

‘Sexual activity’ means any activity that a reasonable person would, in all the circumstances but regardless of any person’s purpose, consider to be sexual (s. 15A(2)).

The offence criminalises conduct where an adult intentionally communicates (for example, by email, text message, written note or orally) with a child under 16 (whom the adult does not reasonably believe to be aged 16 or over) for the purpose of obtaining sexual gratification if the communication is sexual or intended to encourage the child to make a communication that is sexual. The offence may be committed, for example, by talking sexually to a child via an internet chat room or sending sexually explicit text messages to a child as well as inviting a child to communicate sexually (irrespective of whether the invitation is itself sexual).

The offence is designed to ensure that it does not criminalise, for example, ordinary social or educational interactions between children and adults or communications between young people themselves as the communication must be for the corrupt purpose of obtaining ‘sexual gratification’.

The interpretation of the term ‘sexual gratification’ is the same as that taken in ss. 11 and 12 of the Act so it would not matter if the defendant made a relevant communication in order to obtain immediate sexual gratification or the obtaining of such gratification was part of a longer term plan, or both.

Question 16

Abuse of Position of Trust

Answer 16

The prohibited behaviour under ss. 16 to 19 is along the same lines as that prohibited by the child sex offences in ss. 9, 10, 11 and 12 (see paras 4.4.2 to 4.4.5), except that they are committed by a person in ‘a position of trust’ (POT) and can be committed against a ‘child’ who is ‘under 18’ (so the victim can be 16 or 17 years old).

Question 17

Position of Trust

Answer 17

A person commits an offence under ss. 16 to 19 when they are aged 18 or over and are in a ‘position of trust’ in relation to the victim. A ‘position of trust’ is defined under s. 21 of the Act which is a lengthy, wide-ranging and detailed provision that is beyond the scope of this Manual; however, several examples are provided below:

• where the child is detained following conviction for a criminal offence, for example in a secure training centre or a young offenders institution (s. 21(2));
• in a wide range of settings in which young people are accommodated, including foster care, residential care (local authority, private or voluntary, including secure accommodation) and semi-independent accommodation (s. 21(3));
• where young people with medical conditions, physical or learning disabilities, mental illness or behavioural problems might be accommodated and includes NHS, private and voluntary accommodation (s. 21(4));
• where the child is receiving education in an educational institution (and the offender is not receiving education at that institution) (s. 21(5)).

If the position of trust held by the defendant falls within any of the above four categories, it will be presumed that the defendant knew (or could reasonably have been expected to know) that there was a position of trust between him/her and the victim unless he/she can point to some evidence to the contrary.

An exception to the offences under ss. 16 to 19 is where the defendant and the victim were lawfully married to each other at the time (s. 23) and where a lawful sexual relationship existed between the defendant and the victim before the position of trust arose (s. 24).

Question 18

Familial Child Sex Offences

Answer 18

Sections 25 and 26 of the Sexual Offences Act 2003 deal with offences where there is a familial relationship between the offender and the victim.

Question 19

Sexual Activity with Child Family Member—Sexual Offences Act 2003, s. 25

Answer 19

• Where defendant is 18 or over at the time of the offence and if involves penetration of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or of defendant’s mouth by victim’s penis—triable on indictment: 14 years’ imprisonment
• Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily
• Or, where defendant is under 18 at the time of the offence; five years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 25 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally touches another person (B),
(b)
the touching is sexual,
(c)
the relation of A to B is within section 27,
(d)
A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
(e)
either—
(i)
B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii)
B is under 13.

Question 20

Sexual Activity with Child Family Member

Answer 20

For the relevant definitions of touching and sexual, see paras 4.3.4 and 4.3.2.

The further elements that must be proved are the existence of the relevant family relationship between the defendant and the victim, and the age of the victim.

Where the relevant family relationship is proved, it will be presumed that the defendant knew or could reasonably have been expected to know that he/she was related to the victim in that way. Similarly, where it is proved that the victim was under 18, there will be a presumption that the defendant did not reasonably believe that the victim was 18 or over.

In respect of both the relationship and the age of the defendant under these circumstances, the defendant will have an evidential burden to discharge in that regard (s. 25(2) and (3)).

The relevant family relationships are set out in s. 27. These cover all close family relationships along with adoptive relationships. They are where:
* the defendant or the victim is the other’s parent, grandparent, brother, sister, half-brother, half-sister, aunt or uncle; or
* the defendant is or has been the victim’s foster parent.
Additional categories are where the defendant and victim live or have lived in the same household, or the defendant is or has been regularly involved in caring for, training, supervising or being in sole charge of the victim and:
* one of them is or has been the other’s step-parent;
* they are cousins;
* one of them is or has been the other’s stepbrother or stepsister; or
* they have the same parent or foster parent.

There are exceptions for situations where the defendant and the victim are lawfully married at the time or where (under certain circumstances) the sexual relationship pre-dates the family one. For example, where two divorcees each have a child of 17 who are engaged in a sexual relationship before their respective parents marry and move all four of them into the same household.

Question 21

Inciting Sexual Activity with a Child Family Member—Sexual Offences Act 2003, s. 26

Answer 21

• Where defendant is 18 or over at the time of the offence and if involves incitement to penetration: of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or of defendant’s mouth by victim’s penis—triable on indictment: 14 years’ imprisonment
• Otherwise triable either way; 14 years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily
• Or, where defendant is under 18 at the time of the offence; five years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 26 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally incites another person (B) to touch, or allow himself to be touched by, A,
(b)
the touching is sexual,
(c)
the relation of A to B is within section 27,
(d)
A knows or could reasonably be expected to know that his relation to B is of a description falling within that section, and
(e)
either—
(i)
B is under 18 and A does not reasonably believe that B is 18 or over, or
(ii)
B is under 13.

Question 22

Inciting Sexual Activity with a Child Family Member

Answer 22

An example of this offence would be where A encourages B to masturbate A or cajoles B into agreeing to have sex with him. The offence is committed whether or not the sexual touching takes place. So where in the above example A has encouraged B to masturbate him, but the masturbation does not take place because another person enters the room, the offence is nevertheless complete.

The further elements that must be proved are the existence of the relevant family relationship between the defendant and the victim, and the age of the victim.

Where the relevant family relationship is proved, it will be presumed that the defendant knew or could reasonably have been expected to know that he/she was related to the victim in that way. Similarly, where it is proved that the victim was under 18, there will be a presumption that the defendant did not reasonably believe that the victim was 18 or over. In respect of both the relationship and the age of the defendant under these circumstances, the defendant will have an evidential burden to discharge in that regard (s. 26(2) and (3)).

Whether or not the child consented to the incitement or the activity being incited is irrelevant.

Question 23

Indecent Photographs

Answer 23

The Protection of Children Act 1978 and the Criminal Justice Act 1988 detail offences relating to the taking, possession of and distribution of indecent photographs of children. The term ‘photograph’ is common to both offences and covers far more than the traditional image of what a ‘photograph’ might be considered to be.

Question 24

What is a Photograph?

Answer 24

Section 7 of the Protection of Children Act 1978 provides a definition of a photograph for the purposes of the Act (the same definition applies to the offence under s. 160 of the Criminal Justice Act 1988) and states:
(1)
The following subsections apply for the interpretation of this Act.
(2)
References to an indecent photograph include an indecent film, a copy of an indecent film, and an indecent photograph comprised in a film.
(3)
Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children and so as respects of pseudo-photographs.
(4)
References to a photograph include—
(a)
the negative as well as the positive version; and
(b)
data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.
(4A)
References to a photograph also include—
(a)
a tracing or other image, whether made by electronic or other means (of whatever nature)—
(i)
which is not itself a photograph or pseudo-photograph, but
(ii)
which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and
(b)
data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a);
and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph.
(5)
‘Film’ includes any form of video-recording.
(6)
‘Child’, subject to subsection (8), means a person under the age of 18.
(7)
‘Pseudo-photograph’ means an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph.
(8)
If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.
(9)
References to an indecent pseudo-photograph include—
(a)
a copy of an indecent pseudo-photograph; and
(b)
data stored on a computer disc or by other electronic means which is capable of conversion into an indecent pseudo-photograph.

Question 25

The use of the internet to facilitate such offences has led to a great deal of case law on the subject and what follows is a summary of several key decisions by the courts on these issues:

Answer 25

‘Pseudo-photographs’ include computer images and the above offences will cover the situation where part of the photograph is made up of an adult form.

• Downloading images from the internet will amount to ‘making’ a photograph for the purposes of s. 1(1)(a) of the 1978 Act (R v Bowden [2001] QB 88).
• ‘Making’ pseudo-photographs includes voluntary browsing through indecent images of children on and from the internet. Once an image is downloaded, the length of time it remains on the screen is irrelevant (R v Smith and Jayson [2002] EWCA Crim 683).
• In the same case, the Court of Appeal held that a person receiving an unsolicited email attachment containing an indecent image of a child would not commit the offence under s. 1(1)(a) by opening it if he/she was unaware that it contained or was likely to contain an indecent image. This was because s. 1(1)(a) does not create an absolute offence.
• Copying onto a hard drive and storing ‘pop-ups’ containing indecent images of children amounts to possessing those images (R v Harrison [2007] EWCA Crim 2976).
• If images have been deleted from a computer so that their retrieval is impossible and, at the material time, a person cannot gain access to them and the images are beyond a person’s control, that person cannot be in possession of them (R v Porter [2006] EWCA Crim 560).
• Evidence indicating an interest in paedophile material generally along with evidence to show how a computer had been used to access paedophile news groups, chat lines etc. can be relevant to show it was more likely than not that a file containing an indecent image of a child had been created deliberately (R v Toomer [2001] 2 Cr App R (S) 8).
• An image consisting of two parts of two different photographs taped together (the naked body of a woman taped to the head of a child) is not a ‘pseudo-photograph’. If such an image were to be photocopied, it could be (Atkins v DPP [2000] 1 WLR 1427).
• Where a defendant had knowledge that images were likely to be accessed by others, any images would be downloaded ‘with a view to distribute’ (R v Dooley [2005] EWCA Crim 3093).

Question 26

Indecent Photographs—Protection of Children Act 1978, ss. 1, 1A and 1B

Answer 26

• Triable either way
• 10 years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Protection of Children Act 1978, s. 1 states:
1 Indecent photographs of children
(1)
Subject to sections 1A and 1B, it is an offence for a person—
(a)
to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or
(b)
to distribute or show such indecent photographs or pseudo-photographs; or
(c)
to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; orp. 555
(d)
to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.
(2)
For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.
(3)
…
(4)
Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—
(a)
that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or
(b)
that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.
(5)
References in the Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.

Question 27

Indecent Photographs

Answer 27

A person will be a ‘child’ for the purposes of the Act if it appears from the evidence as a whole that he/she was, at the material time, under the age of 18 (Protection of Children Act 1978, s. 2(3)).

Once the defendant realises, or should realise, that material is indecent, any distribution, showing or retention of the material with a view to its being distributed will result in an offence being committed under the 1978 Act if the person depicted turns out to be a child (R v Land [1999] QB 65).

If the impression conveyed by a pseudo-photograph is that the person shown is a child or where the predominant impression is that the person is a child, that pseudo-photograph will be treated for these purposes as a photograph of a child, notwithstanding that some of the physical characteristics shown are those of an adult (s. 7(8) of the 1978 Act).

‘Distributing’ will include lending or offering to another.

Although the offences include video recordings, possession of exposed but undeveloped film (i.e. film in the form in which it is taken out of a camera) does not appear to be covered. The offence at s. 1(1)(b) and (c) of the 1978 Act can only be proved if the defendant showed/distributed the photograph etc. or intended to show or distribute the photograph etc. to someone else (R v Fellows [1997] 1 Cr App R 244 and R v T [1999] 163 JP 349). If no such intention can be proved, or if the defendant only had the photographs etc. for his/her own use, the appropriate charge would be under s. 160 of the Criminal Justice Act 1988.

Sections 1 and 2 of the Criminal Evidence (Amendment) Act 1997 apply to an offence under s. 1 of the Protection of Children Act 1978 (and to conspiracies, attempts or incitements in the circumstances set out in the 1997 Act).

A legitimate purpose for possessing such material might be where someone has the material as an exhibits officer or as a training aid for police officers or social workers.

The consent of the DPP is needed before prosecuting an offence under the Protection of Children Act 1978.

Question 28

The Protection of Children Act 1978, s. 1A states:

Answer 28

1A Marriage and other relationships
(1)
This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph or pseudo-photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a)
were married, or civil partners of each other or
(b)
lived together as partners in an enduring family relationship.p. 556
(2)
Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a)
were married, or civil partners of each other or
(b)
lived together as partners in an enduring family relationship.
(3)
This section applies whether the photograph or pseudo-photograph showed the child alone or with the defendant, but not if it showed any other person.
(4)
In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph or pseudo-photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.
(5)
In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

Question 29

Marriage and other relationships

Answer 29

There is a specific defence to offences under s. 1(1)(a), (b) and (c) of the Protection of Children Act 1978 (making, distributing or possessing with a view to distributing) where the defendant can prove that the photograph was of a child aged 16 or over, the photograph only showed the defendant and the child and that, at the time of the offence, they were married, in a civil partnership or lived together as partners in an enduring family relationship (s. 1A). If the defendant can show these elements, then the following further conditions of the defence will apply:

• In the case of an offence under s. 1(1)(a) (taking or permitting to be taken etc.), the defendant will have an evidential burden of showing that the child consented or that the defendant reasonably believed that the child consented to the making of the photograph (s. 1A(4)).
• In the case of an offence under s. 1(1)(b) (distributing or showing), you must prove that the distributing or showing was to a person other than the child in the photograph (s. 1A(5)).
• In the case of an offence under s. 1(1)(c) (possession with a view to distribution or showing etc.), the defendant will have an evidential burden of demonstrating that the image was to be shown/distributed to no person other than the child and that the child consented to the defendant’s possession of the photograph (s. 1A(6)).

Question 30

The Protection of Children Act 1978, s. 1B states:

Answer 30

1B Exception for criminal proceedings, investigations etc.
(1)
In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—
(a)
it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,
(b)
at the time of the offence charged he was a member of the Security Service or the Secret Intelligence Service, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of that Service, orp. 557
(c)
at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

Question 31

Exception for criminal proceedings, investigations etc.

Answer 31

There is a limited defence in relation to the making of an indecent photograph or pseudo-photograph contrary to s. 1(1)(a) of the Protection of Children Act 1978 where the defendant proves that:

• it was necessary for the defendant to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime or for criminal proceedings in any part of the world; or
• at the time the defendant was a member of the Security Service, Secret Intelligence Service or GCHQ (Government Communications Headquarters) and it was necessary for the exercise of any of the functions of that Service/GCHQ (s. 1B).

In order to assist police officers and prosecutors, NPCC and the CPS have published a Memorandum of Understanding. It sets out factors that will be taken into account in deciding whether the intention of someone accused of an offence under s. 1(1)(a) attracted criminal liability when ‘making’ a photograph etc. As the Memorandum points out:

This reverse burden is intended to allow those people who need to be able to identify and act to deal with such images to do so. It also presents a significant obstacle to would-be abusers and those who exploit the potential of technology to gain access to paedophilic material for unprofessional (or personal) reasons.

The purpose of the Memorandum is to reassure those whose duties properly involve the prevention, detection or investigation of this type of crime and also as a warning to others who might claim this defence having taken it upon themselves to investigate such offences. In summary, the following criteria will be considered:

• How soon after its discovery the image was reported and to whom.
• The circumstances in which it was discovered.
• The way in which the image was stored and dealt with, and whether it was copied.
• Whether the person’s actions were reasonable, proportionate and necessary.

Question 32

Indecent Photographs—Criminal Justice Act 1988, s. 160

Answer 32

• Triable either way
• Five years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine

The Criminal Justice Act 1988, ss. 160 and 160A state:
160 Possession of indecent photograph of child
(1)
Subject to section 160A, it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.
(2)
Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—
(a)
that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
(b)
that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or
(c)
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.
160A Marriage and other relationships
(1)
This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a)
were married, or civil partners of each other or
(b)
lived together as partners in an enduring family relationship.
(2)
This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a)
were married, or civil partners of each other or
(b)
lived together as partners in an enduring family relationship.
(3)
This section applies whether the photograph or pseudo-photograph showed the child alone or with the defendant, but not if it showed any other person.
(4)
If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph or pseudo-photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

Question 33

Indecent Photographs—Criminal Justice Act 1988

Answer 33

For the meaning of ‘photograph’ and ‘pseudo-photograph’, see para. 4.4.12.2, Keynote.

A person will be a ‘child’ for the purposes of the Act if it appears from the evidence as a whole that he/she was, at the
material time, under the age of 18 (Criminal Justice Act 1988, s. 160(4)).

The statutory defence under s. 160(2)(b) of the 1988 Act requires that the defendant (1) has not seen the material and (2) did not know or have any cause to suspect it was indecent. The defendant will be acquitted of the offence under s. 160 if he/she proves that (1) he/she had not seen the material and (2) did not know (and had no cause to suspect) that it was an indecent photograph of a child. This was confirmed in R v Collier [2004] EWCA Crim 1411 and arose from an argument where the material relating to children had been among other adult material that the defendant did know was indecent—he just did not know that it was an indecent photograph of a child.

Question 34

Possession of Prohibited Images of Children—Coroners and Justice Act 2009, s. 62

Answer 34

• Triable either way
• Three years’ imprisonment on indictment and/or a fine
• Six months’ imprisonment and/or a fine

The Coroners and Justice Act 2009, s. 62 states:
(1)
It is an offence for a person to be in possession of a prohibited image of a child.
(2)
A prohibited image is an image which—
(a)
is pornographic,
(b)
falls within subsection (6), and
(c)
is grossly offensive, disgusting or otherwise of an obscene character.

Question 35

Possession of Prohibited Images of Children

Answer 35

An image is ‘pornographic’ if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

An image falls within subs. (6) if it is an image which focuses solely or principally on a child’s genitals or anal region, or portrays any of the acts mentioned below. Those acts are:
* the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
* an act of masturbation by, of, involving or in the presence of a child;
* an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
* an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
* the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
* the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

Penetration is a continuing act from entry to withdrawal.

Section 62(4) of the offence states that where (as found in a person’s possession) an individual image forms part of a series of images, the question of whether it is pornographic must be determined by reference both to the image itself and the context in which it appears in the series of images. Where an image is integral to a narrative (for example, a mainstream film) which when it is taken as a whole could not reasonably be assumed to be pornographic, the image itself may not be pornographic, even though if considered in isolation the contrary conclusion might have been reached (s. 62(5)). This is related to the exclusion from the scope of the offence of certain excluded images under s. 63 of the Act.

Proceedings for an offence under s. 62(1) may not be instituted in England and Wales except by or with the consent of the DPP.

Question 36

Meaning of ‘Image’ and ‘Child’

Answer 36

Section 65 states that an ‘image’ includes a moving or still image (produced by any means) such as a photograph or film, or data (stored by any means) which is capable of conversion into a movable or still image, such as data stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device. It should be noted that the term ‘image’ does not include an indecent photograph, or indecent pseudo-photograph, of a child as these are subject to other controls (see s. 160 of the Criminal Justice Act 1988 at para. 4.4.12.4).

A ‘child’ means a person under the age of 18 (s. 65(5)). Where an image shows a person, the image is to be treated as an image of a child if the impression conveyed by the image is that the person shown is a child, or the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child (s. 65(6)).

References to an image of a person include references to an image of an imaginary person. References to an image of a child include references to an image of an imaginary child.

Question 37

DEFENCE - The Coroners and Justice Act 2009, s. 64 states:

Answer 37

(1)
Where a person is charged with an offence under section 62(1), it is a defence for the person to prove any of the following matters—
(a)
that the person had a legitimate reason for being in possession of the image concerned;
(b)
that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be a prohibited image of a child;
(c)
that the person—
(i)
was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii)
did not keep it for an unreasonable time.

This section sets out a series of defences to the s. 62 offence of possession of prohibited images of children.

Question 38

Sexual Exploitation of Children

Answer 38

Offences under ss. 47 to 50 of the Act deal with the sexual exploitation of children

Question 39

Paying for Sexual Services of a Child—Sexual Offences Act 2003, s. 47

Answer 39

• If victim is child under 13: triable on indictment; life imprisonment
• Where victim is under 16 at the time of the offence and if involves penetration of victim’s anus or vagina by a part of defendant’s body or anything else, of victim’s mouth with defendant’s penis, of defendant’s anus or vagina by a part of victim’s body or by victim with anything else—triable on indictment: 14 years’ imprisonment
• Otherwise triable either way: seven years’ imprisonment on indictment; six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 47 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally obtains for himself the sexual services of another person (B),
(b)
before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment.

Question 40

Paying for Sexual Services of a Child

Answer 40

If the child is under 13, the offence is complete at this point. If the child is under 18, you must prove that the defendant did not reasonably believe that the child was 18 or over (s. 47(1)(c)).

Payment means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount (s. 47(2)). This would include situations where the child victim is given drugs or other goods/services at a cheaper rate in exchange for sexual services from the child.

Question 41

Causing, Inciting, Controlling, Arranging or Facilitating the Sexual Exploitation of Children—Sexual Offences Act 2003, ss. 48 to 50

Answer 41

• Triable either way
• 14 years’ imprisonment on indictment
• Six months’ imprisonment and/or a fine summarily

The Sexual Offences Act 2003, s. 48 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally causes or incites another person (B) to be sexually exploited, in any part of the world …

The Sexual Offences Act 2003, s. 49 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally controls any of the activities of another person (B) relating to B’s sexual exploitation in any part of the world …

The Sexual Offences Act 2003, s. 50 states:
(1)
A person (A) commits an offence if—
(a)
he intentionally arranges or facilitates the sexual exploitation in any part of the world of another person (B) …

Question 42

Causing, Inciting, Controlling, Arranging or Facilitating the Sexual Exploitation of Children

Answer 42

These offences are aimed at those who seek to recruit children for prostitution or to take part in pornography, or otherwise control these activities and arrangements anywhere in the world. For the accused to be guilty of the incitement offence, it is not necessary that B actually becomes a prostitute or involves him/herself in pornography.

If the child is under 13, the offences are complete once the relevant conduct of the defendant has been proved and any belief the defendant may have had as to the child’s age is irrelevant to guilt. If the child is under 18, you must prove that the defendant did not reasonably believe that the child was 18 or over (see subs. (1)(b) of each).

For the purposes of ss. 48 to 50, a person (B) is sexually exploited if:

• on at least one occasion and whether or not compelled to do so, B offers or provides sexual services to another person in return for payment or a promise of payment to B or a third person; or
• an indecent image of B is recorded and sexual exploitation is to be interpreted accordingly (s. 51(2)).

Payment means any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount (s. 51(3)).

These offences would be committed if the child is recruited on a one-off basis, as well as on those occasions where the child is habitually involved. Unlike the general offence of controlling prostitution (see para. 4.6.3), there is no need to show that the causing or inciting was done for gain. The expressions used in the sections are deliberately wide and will, in places, overlap. Controlling the activities of the child would include, for example, setting the relevant price or specifying which room or equipment is to be used. Arranging will include taking an active part in the transport or travel arrangements or organising relevant facilities (such as hotel rooms etc.).

Question 43

Information About Guests at Hotels

Answer 43

Section 116 of the Anti-social Behaviour, Crime and Policing Act 2014 confers a power on a police officer, of at least the rank of inspector, to serve a notice on the owner, operator or manager of a hotel that the officer reasonably believes has been or will be used for the purposes of child sexual exploitation or conduct preparatory to or connected with it.

For the purposes of s. 116, ‘child sexual exploitation’ is defined at s. 116(8) to include offences under any of the following sections of the Sexual Offences Act 2003:

• ss. 1 to 13 (rape, assault and causing sexual activity without consent, rape and other offences against children under 13 and child sex offences);
• ss. 16 to 19 (abuse of position of trust);
• ss. 25 and 26 (familial child sex offences);
• ss. 30 to 41 (persons with a mental disorder impeding choice, inducements etc. to persons with a mental disorder, and care workers for persons with a mental disorder);
• ss. 47 to 50 (abuse of children through prostitution and pornography);
• s. 61 (administering a substance with intent);
• ss. 66 and 67 (exposure and voyeurism).

An offence under s. 1 of the Protection of Children Act 1978 (indecent photographs of children) is also included under s. 116.

The notice must be in writing and specify the hotel to which it relates, the date on which it comes into effect and the date on which it expires. It must also explain the information that a constable may require the person issued with a notice to provide, avenues of appeal against the notice and the consequences of failure to comply. The notice must also specify the period for which it has effect which, under s. 116(3), must be no more than six months.

The Anti-social Behaviour, Crime and Policing Act 2014, s. 116 states:
(4)
A constable may require a person issued with a notice under this section to provide the constable with information about guests at the hotel.
(5)
The only information that a constable may require under subsection (4) is—
(a)
guests’ names and addresses;
(b)
other information about guests that—
(i)
is specified in regulations made by the Secretary of State, and
(ii)
can be readily obtained from one or more of the guests themselves.
(6)
A requirement under subsection (4)—
(a)
must be in writing;
(b)
must specify the period to which the requirement relates;
(c)
must specify the date or dates on or by which the required information is to be provided.
The period specified under paragraph (b) must begin no earlier than the time when the requirement is imposed and must end no later than the expiry of the notice under this section.

Keynote

‘Guest’ means a person who, for a charge payable by that person or another, has the use of a guest room at the hotel in question.

‘Hotel’ includes any guest house or other establishment of a similar kind at which accommodation is provided for a charge.

Section 118(1) states that an offence is committed by a person who fails without reasonable excuse to comply with a requirement imposed on the person under s. 116(4).

Section 118(2) states that an offence is committed by a person who, in response to a requirement imposed on the person under s. 116(4), provides incorrect information which the person:

(a)
did not take reasonable steps to verify or to have verified; or
(b)
knows to be incorrect.

A person does not commit an offence under s. 118(2)(a) if there were no steps that the person could reasonably have taken to verify the information or to have it verified.

These offences are punishable by a fine.

Question 44

Possession of a Paedophile Manual—Serious Crime Act 2015, s. 69

Answer 44

• Triable either way
• Three years’ imprisonment and/or fine
• Six months’ imprisonment and/or fine

The Serious Crime Act 2015, s. 69 states:
(1)
It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.
(2)
It is a defence for a person (D) charged with an offence under this section—
(a)
to prove that (D) had a legitimate reason for being in possession of the item, and
(b)
to prove that—
(i)
D had not read, viewed or (as appropriate) listened to the item, and
(ii)
D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or
(c)
to prove that—
(i)
the item was sent to D without any request made by D or on D’s behalf, and
(ii)
D did not keep it for an unreasonable time.

Question 45

Possession of a Paedophile Manual

Answer 45

This section creates an offence of possession of a paedophile manual; that is, any item containing advice or guidance about abusing children sexually. There are a number of criminal offences that seek to prevent the possession, creation and distribution of indecent images of children and the dissemination of obscene material. In particular:

• s. 1 of the Protection of Children Act 1978 makes it an offence for a person to take, permit to be taken, make, distribute or show, or have in his/her possession with a view to showing or distributing any indecent photograph or pseudo-photograph of a child;
• s. 160 of the Criminal Justice Act 1988 makes it an offence to possess an indecent photograph or pseudo-photograph of a child;
• s. 63 of the Criminal Justice and Immigration Act 2008 makes it an offence to possess extreme pornographic images; and
• s. 62 of the Coroners and Justice Act 2009 makes it an offence to possess a prohibited image of a child.

These offences do not criminalise mere possession of material containing advice and guidance about grooming and abusing a child sexually. This offence plugs this gap in the law.

‘Abusing children sexually’ means doing anything that constitutes an offence under part 1 of the Sexual Offences Act 2003 against a person under 16 or doing anything that constitutes an offence under s. 1 of the Protection of Children Act 1978 involving indecent photographs (but not pseudo-photographs) (s. 69(8)).

The term ‘item’ has a wide meaning and includes both physical and electronic documents (e.g. emails or information downloaded to a computer) (s. 69(8)).

Section 69(2) sets out a series of defences to the offence of possession of a paedophile manual. They are the same as for other comparable offences, for example the possession of indecent images of children under s. 160(2) of the Criminal Justice Act 1988. They are:

• that the person had a legitimate reason for being in possession of the item; this would be a question of fact for the jury to decide on the individual circumstances of a case. It could cover, for example, those who can demonstrate that they have a legitimate work reason for possessing the item;
• that the person had not seen (or listened to) the item in his/her possession and therefore neither knew, nor had cause to suspect, that it contained advice or guidance about abusing children sexually; and
• that the person had not asked for the item—it having been sent without request—and that he/she had not kept it for an unreasonable period of time; this will cover those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it.

The standard of proof in making out the defence is the balance of probabilities.

Proceedings for an offence under s. 69(1) may not be instituted in England and Wales except by or with the consent of the DPP.

Question 46

Offences Outside the United Kingdom

Answer 46

Section 72 of and sch. 2 to the Sexual Offences Act 2003 allow for the prosecution of British citizens and UK residents for sexual offences against children committed abroad. Section 72(1) makes it an offence for a UK national to commit an act outside the United Kingdom which would constitute a relevant sexual offence if done in England and Wales. This has the effect of removing the requirement that the act committed must have been illegal in the country where it took place, in respect of the prosecution of UK nationals.

Section 72 applies to:

• an offence under any of ss. 5 to 19, 25, 26 and 47 to 50;
• an offence under any of ss. 1 to 4, 30 to 41 and 61 where the victim of the offence was under 18 at the time of the offence;
• an offence under s. 62 or 63 where the intended offence was an offence against a person under 18;
• an offence under—
  s. 1 of the Protection of Children Act 1978 (indecent photographs of children); or
  s. 160 of the Criminal Justice Act 1988 (possession of indecent photograph of a child).