Sexual Offences against Children

Question 1

What is sexual activity with a child?

Answer 1

Sexual Offences Act 2003, s9
(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

What is the sentence for the offence?

Answer 2

If it involves penetration- triable on indictment- 14 years’ imprisonment
Otherwise triable either way- 14 years’ imprisonment on indictment

Question 3

What must you show for D to be found guilty?

Answer 3

1. Must show D intentionally touched V sexually
2. Must show V was either (a) under 13- offence is complete; or
   (b) under 16- must prove D did not reasonably believe V was 16 or over.

Question 4

Is consent relevant?

Answer 4

In either case, consent is irrelevant. No issues of consent arise in these cases.

Question 5

What is causing or inciting a child to engage in sexual activity?

Answer 5

Sexual Offences Act 2003, s10
(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 6

What is the sentence for the offence?

Answer 6

If it involves penetration- triable on indictment- 14 years’ imprisonment
Otherwise triable either way- 14 years’ imprisonment on indictment

Question 7

What must you show for D to be found guilty?

Answer 7

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 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 8

Does the sexual activity caused or envisaged have to be with D? Does the activity need to take place?

Answer 8

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 9

What sexual activity does caused or incited mean?

Answer 9

The sexual activity which is caused or incited may be:
1. Activity with A (Eg: where A causes or incites the child to have sexual intercourse with him)
2. On the child him/herself (Eg: where A causes or incites the child to strip for A’s sexual gratification)
3. With a third person (Eg: where A causes or incites the child to have sexual intercourse with A’s friend)

Question 10

What is engaging in sexual activity in the presence of a child?

Answer 10

Sexual Offences Act 2003, s11
(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 11

What is the sentence for the offence?

Answer 11

Triable either way
10 years’ imprisonment on indictment

Question 12

What must you show for D to be found guilty?

Answer 12

1. Activity in which the offender is engaged must be ‘sexual’ and intentional and must be in order to obtain sexual gratification (for D)
2. A person under 16 must be present or in a place from which D can be observed and D must know, believe or intend that the child was aware that he/she was engaging in that activity
3. Not necessary to show the child was in fact aware of the activity in every case- ‘observation’ includes direct observation or by looking at the image
4. Must show either the child was under 13 (in which case the offence is complete) or that he/she was under 16 and that D did not reasonably believe him/her to be 16 or over

Question 13

Does the child have to be present at the scene?

Answer 13

The observation might be direct (as in child is present at the scene) or indirect (via webcam)

Question 14

What is this offence aimed at? Give an example

Answer 14

Eg: people masturbating n 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 15

What is the offence of causing a child to watch a sexual act?

Answer 15

Sexual Offences Act 2003, s12
(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 16

What is the sentence for this offence?

Answer 16

Triable either way
10 years’ imprisonment on indictment

Question 17

What must you show for D to be found guilty?

Answer 17

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 18

What is required for the offence?

Answer 18

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.
This must be done for the sexual gratification of the offender eg: it would not cover teacher showing sex ed images to children.

Question 19

Does the sexual gratification need to be immediate?

Answer 19

Does not require that such gratification has to be taken immediately- does not require that the offence can only be committed if the proposed sexual gratification and viewed sexual act, or display images, were simultaneous, contemporaneous or synchronised

Question 20

What does ‘image’ include?

Answer 20

‘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))

Question 21

When might the display of sexual images/sexual activity be appropriate?

Answer 21

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’

Question 22

Case- s12 offence

Answer 22

R v Abdullahi [2006]- D 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 D does so to obtain enjoyment from seeing the child watch a sexual act

Question 23

What happens if the offender is under 18?

Answer 23

Offences under s9-12 can only be committed by a person aged 18 or over.
s13(1) Sexual Offences Act 2003 states that a person under 18 commits an offence is he/she does anything which would be an offence under any of s9-12 if he/she were aged 18

Question 24

What is the sentence for an offence under s13?

Answer 24

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 25

What is the offence of arranging or facilitating the commission of a child sex offence?

Answer 25

Sexual Offences Act 2003, s14
(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 5 to 13 (child sex offences)

Question 26

What is the sentence for the offence?

Answer 26

Triable either way
14 years’ imprisonment on indictment

Question 27

What is the purpose of the offence?

Answer 27

Offence applies to activities by which D intends to commit one of those relevant child sex offences him/herself, or by which D intends or believes another person will do so, in either case in any part of the world
Offence is complete whether or not the sexual activity takes place

Question 28

Examples of the offence

Answer 28

D approaching a third person to procure a child to take part in sexual activity with him or where D makes travel arrangements for another in the belief that the other person will commit a relevant child sex offence

Question 29

What actions does this part of the Act specifically exclude?

Answer 29

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

Question 30

What categories does acting for the child’s protection need to fall within?

Answer 30

Acting for the child’s protection must fall within one of the following:
1. protecting the child from sexually transmitted infection;
2. protecting the physical safety of the child;
3. preventing the child from becoming pregnant; or
4. 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.

Question 31

What activities are these exceptions expected to protect?

Answer 31

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 32

What is the offence of meeting a child following sexual grooming?

Answer 32

Sexual Offences Act 2003, s15
(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,
(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 33

What is the sentence for the offence?

Answer 33

Triable either way
10 years’ imprisonment on indictment

Question 34

What must you show for D to be guilty of the offence?

Answer 34

The initial action of D involves either a meeting or a communication with V (who must be under 16) on at least one previous occasion. Such meetings or communications can be innocuous and have no sexual element eg; family occasions or during the course of youth activities.

Question 35

Where can this initial meeting or communication take place?

Answer 35

Anywhere in the world

Question 36

What is the only requirement prior to an intentional meeting?

Answer 36

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’

Question 37

Does the communication need to be sexual? Case?

Answer 37

There is no requirement that either communication be sexual in nature (R v G [2010])

Question 38

What method of communication does it include?

Answer 38

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

Question 39

Once the earlier meeting or communication has taken place, how is the offence triggered?

Answer 39

Once the earlier meeting or communication has taken place, the offence is triggered by:
- an intentional meeting with V;
- D travelling with the intention of meeting the victim;
- D arranging to meet the victim;
- V travelling to meet the defendant in any part of the world
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

Question 40

What is the MR of the offence?

Answer 40

At the time of any of the above activities, D must intend to do anything to or in respect of V, during or even after the meeting, that would amount to a relevant offence. Note that the intended offence does not have to take place.
You must show that V was under 16 and that D did not reasonably believe that he/she was 16 or over

Question 41

Does the intended sexual offence have to take place?

Answer 41

No!

Question 42

What is the offence of sexual communication with a child?

Answer 42

Sexual Offences Act 2003, s15A
(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 43

What is the sentence for the offence?

Answer 43

Triable either way
Two years’ imprisonment on indictment

Question 44

What does ‘sexual’ mean?

Answer 44

Definition of the term ‘sexual’ under s78 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

Question 45

What does ‘sexual activity’ mean?

Answer 45

Any activity that a reasonable person would, in all circumstances but regardless of any person’s purpose, consider to be sexual (s15A(2))

Question 46

What must you prove for D to be found guilty?

Answer 46

Offence criminalises conduct where an adult intentionally communicates (eg: by email, text, 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 in response, whether to D himself or someone else

Question 47

Does the communication need to be for sexual gratification?

Answer 47

Yes!!!

Question 48

Example of when an offence is committed

Answer 48

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)

Question 49

What is the offence designed to not criminalise?

Answer 49

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’
Sexual gratification is the same as in s11 and 12- does not matter if D made a relevant communication to obtain immediate sexual gratification or the obtaining of such gratification was part of a longer term plan, or both

Question 50

What does the offence NOT criminalise?

Answer 50

It should not criminalise sexualised discussions between adults and children for legitimate purposes eg: sex ed or advice

Question 51

What is the offence of abuse of a position of trust?

Answer 51

The prohibited behaviour under s16-19 is along the same lines as that prohibited by the child sex offences in s9, 10, 11 and 12 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 V can be 16 or 17 years old)

Question 52

What type of offences are they? What sentences do they carry?

Answer 52

Abuse of trust offences are triable either way.
Carry a maximum sentence of 5 years.

Question 53

What is the purpose of these offences?

Answer 53

Primary purpose of the abuse of trust provisions is to provide protection for young people aged 16 or 17 who are considered to be particularly vulnerable to exploitation by those who hold a position of trust or authority in their lives and should not take advantage of their position to obtain sexual favours.

Question 54

What if it appears that the 16 or 17 year old in question consented to the sexual activity?

Answer 54

The disparity of power in the relationship raises concerns about the validity of any such consent.
They are designed to protect 16 and 17 year olds from being persuaded to engage in sexual activity which would not be criminal, except for D’s position of trust in relation to the young person

Question 55

What do the prosecution have to prove?

Answer 55

Firstly, they must prove that the relevant sexual act took place.
They then must prove that V was under 18.
If so, D is presumed not to have reasonably believed that V is 18 or over unless D adduces evidence to raise an evidential burden.
Prosecution must then rebut that presumption if evidence is produced.
Must then prove D knew or could reasonably be expected to know that he/she is in a position of trust to a victim.

Question 56

How does this differ if the V is under 13?

Answer 56

If V is under 13, no question of reasonable belief arises.

Question 57

What is a position of trust? Examples?

Answer 57

Defined under s21 of the Act
- 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));
- where, on a regular basis, the child is coached, taught, trained, supervised or instructed in a sport or a religion (s. 22A(1))

Question 58

When will it be presumed that D is in a position of trust?

Answer 58

If the position of trust held by the defendant falls within any of the above 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

Question 59

When will someone not commit the offence?

Answer 59

Same defence as exists for general offence in s9.
It is a defence against aiding, abetting, or counselling an offence of sexual activity with a child where V is under 16, if the purpose is to protect the child against STI, physical safety of child, becoming pregnant, promote child’s emotional well-being by giving advice unless the real purpose is to obtain sexual gratification or to cause the relevant sexual act eg: school nurse giving advice on sexual health or health worker giving condom to child under 16 who is set on having sex.

Question 60

What is the exception to the offences under s16-19?

Answer 60

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 61

What is the offence of sexual activity with a child family member?

Answer 61

Sexual Offences Act 2003, s25
(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 62

What is the sentence for the offence?

Answer 62

Triable on indictment only if D is over 18 at the time of the offence and penetration is involved. Max sentence of 14 years applies.
Otherwise it is triable either way with the same max sentence when tried on indictment, six months when tried summarily.
If D was under 18 at the time of the offence, it is triable either way with a max of 5 years.

Question 63

What elements need to be proved?

Answer 63

1. Intentional sexual touching
2. Existence of the relevant family relationship between D and V that D is aware of or would be expected to be aware of
3. Victim- who needs to be 12 or under (nothing further to be proved) or between 13 and 17 inclusive (lack of reasonable belief about age applies here)

Question 64

Existence of relevant family relationship- what must you prove?

Answer 64

Where the relevant family relationship is proved, it will be presumed D knew or could reasonably have been expected to know that he/she was related to V in that way.

Question 65

Age of V- what must you prove?

Answer 65

Where it is proved that V was under 18, there will be a presumption that D did not reasonably believe that V was 18 or over.
D will have an evidential burden to discharge s25(3))

Question 66

Where are the relevant family relationships set out?

Answer 66

s27

Question 67

What does s27 set out?

Answer 67

These cover all close family relationships along with adoptive relationships.
They are where:
- D or V is the other’s parent, grandparent, brother, sister, half-brother, half-sister, aunt or uncle; or
- D is or has been the V’s foster parent

Question 68

What if someone is not a blood relative, but has become a relative through marriage?

Answer 68

Someone who is (for example) aunt or uncle through marriage is not automatically covered.

Question 69

How does this rule apply to half-brothers and half-sisters?

Answer 69

They are always covered- but step-brothers and step-sisters are only covered if they fall into the householder or carer situations.

Question 70

What are the additional categories?

Answer 70

Additional categories are where D and V live or have lived in the same household, or D is or has been regularly involved in caring for, training, supervising or being in sole charge of V 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

Question 71

What is an easy way to remember family relationships?

Answer 71

1. Close blood relatives
2. People in a position of trust/trust type situation

Question 72

What are the exceptions?

Answer 72

There are exceptions for situations where D and V are lawfully married at the time or where (under certain circumstances) the sexual relationship pre-dates the family one eg: two divorcees each have a 17 year old child and they have a sexual relationship before their parents decide to marry.

Question 73

What is the relevance of the D’s knowledge of the family relationship?

Answer 73

D needs to know about their family relationship or being reasonably expected to know.
Where the relevant family relationship is proved, it will be presumed that D knew or could reasonably be expected to know that he/she was related to V in that way.

Question 74

Who holds the evidential burden to rebut this presumption?

Answer 74

Defence- they must adduce sufficient evidence to raise an issue as to whether he knew or could reasonably be expected to know

Question 75

Example of when D may rebut a presumption?

Answer 75

eg: brother (20)and sister (16) put up for adoption when born and have no knowledge of each other. They meet by chance and start a sexual relationship. Sister could not commit the offence, as the brother is over 18. Brother would be committing the offence, except he did not know or have any reason to know they were siblings.
If both under 18 they could both commit the offence, subject to the knowledge point.

Question 76

What is the offence of inciting sexual activity with a child family member?

Answer 76

Sexual Offences Act 2003, s26
(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 77

What is the sentence for inciting sexual activity with a child family member?

Answer 77

Triable on indictment only if D is over 18 at the time of the offence and penetration is involved. Max sentence of 14 years applies.
Otherwise it is triable either way with the same max sentence when tried on indictment, six months when tried summarily.
If D was under 18 at the time of the offence, it is triable either way with a max of 5 years.

Question 78

Give an example for inciting sexual activity with a child family member?

Answer 78

A encourages B to masturbate A or cajoles B into agreeing to have sex with him. Offence is still complete if for example A has encouraged B to masturbate him, but the masturbation odes not take place because another person enters the room

Question 79

Can it be committed if no physical touching takes place?

Answer 79

Offence is committed whether or not the sexual touching takes place.

Question 80

What further elements must be proved for this offence?

Answer 80

1. Existence of the relevant family relationship between D and V
2. Age of V

Question 81

Existence of relevant family relationship- what must you prove?

Answer 81

Where the relevant family relationship is proved, it will be presumed that D knew or could reasonably have been expected to know that he/she was related to the victim in that way. Evidential burden to discharge in that regard (s26(2) and (3))

Question 82

Victim is under 18- what must you prove?

Answer 82

There will be a presumption that D did not reasonably believe that V was 18 or over. Evidential burden to discharge in that regard (s26(2) and (3))

Question 83

Is consent of the child relevant?

Answer 83

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

Question 84

What Acts deal with indecent photographs?

Answer 84

Protection of Children Act 1978
Criminal Justice Act 1988
Detail offences relating to:
- to the taking, making, permitting to take, distributing, showing, possession with intent to distribute and advertising indecent photos or pseudo-photographs of children under 18

Question 85

What is the defence?

Answer 85

There is a defence if D fulfils the following criteria:
- the child is over 16
- D proves he and the child were married or living together as partners in an enduring family relationship
- the child consented to the photo being taken
- there is no one else shown in the photo other than the child and the accused.

Question 86

What is law on indecent photographs of children? What are the different offences?

Answer 86

Protection of Children Act 1978, s1
(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; or
(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

Question 87

Whose consent is required for a prosecution under this Act?

Answer 87

The consent of the DPP.

Question 88

What is a photograph?

Answer 88

s7 PCA 1978 provides definition of photograph (same definition under s160 CJA 1988)
(2) References to an indecent photograph include an indecent film, a copy of an indecent film, and an indecent photograph comprised in a film.

Question 89

What else does a photograph include?

Answer 89

(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

Question 90

What does the term ‘film’ mean?

Answer 90

(5) ‘Film’ includes any form of video-recording

Question 91

What does the term ‘pseudo-photograph’ mean?

Answer 91

(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

Question 92

What does references to an indecent pseudo-photograph include?

Answer 92

(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 93

What else do pseudo-photographs include?

Answer 93

Computer images

Question 94

Does this include an image consisting of two parts?

Answer 94

An image consisting of two parts of two different photographs taped together (eg: naked body of a woman taped to the head of a child) is not a pseudo-photo, as it does not appear to be a single photograph.
If that image was photocopied then the resulting image could be!!

Question 95

What does ‘indecent’ mean?

Answer 95

Indecent means offending against recognised standards of proprietary.
Photos and pseudo-photos can be indecent, even if they are not obscene eg: child’s age/apparent age is a relevant factor as to whether the image is indecent.
The circumstances in which it was taken or made or the motivation of the photographer/maker is not.

Question 96

What does the term ‘child’ mean?

Answer 96

(6) ‘Child’, subject to subsection (8), means a person under the age of 18
A person will also be a ‘child’ for the purposes of the Act, if it if it appears from the evidence as a whole that he/she was, at the material time, under the age of 18

Question 97

What if the impression conveyed in the pseudo is that of a child?

Answer 97

If the impression conveyed by a pseudo-photo is that the person shown is a child or where the predominant impression is that the person is a child, that pseudo-photo will be treated for these purposes as a photo of a child, notwithstanding that some of the physical characteristics shown are those of an adult (s7(8) 1978 Act)

Question 98

OFFENCE 1- Taking or making s1(1)(a)

Answer 98

It is an offence for a person to take or permit to be taken, or make any indecent photo or pseudo-photo.

Question 99

What does ‘making’ require?

Answer 99

Requires some degree of knowledge of content.

Question 100

Is downloading an image from the internet ‘making’?

Answer 100

Downloading images of indecent images from child from the internet will amount to ‘making’ if D does this knowing the image was or likely to be an indecent photo or pseudo- photo of child.
Irrelevant if motive is sexual gratification.

Question 101

What if the image is produced elsewhere in the world but downloaded in England and Wales?

Answer 101

This is still an offence if the download takes place in England and Wales- it will amount to making.

Question 102

Is browsing through indecent images of children on the internet considered ‘making’?

Answer 102

‘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])

Question 103

What if someone receives an indecent image of a child via an unsolicited email?

Answer 103

R v Smith and Jayson [2002] - 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.

Question 104

OFFENCE 2- Distributing, showing or possessing with a view to distributing or showing s1(1)(b)

Answer 104

It is an offence to distribute or show indecent photos or pseudo-photos of a child.

Question 105

What does ‘distributing’ include?

Answer 105

Includes parting with possession of it to another, lending it to another or exposing or offering for acquisition by another.

Question 106

What does ‘showing’ include?

Answer 106

Includes making available as where a person gives another a key to a cupboard containing indecent photos or makes available a password to enable images to be downloaded.

Question 107

What intention must D show to be guilty of possessing with intent to show?

Answer 107

The offence at s1(1)(b) and (c) can only be proved if D showed/distributed the photo or intended to show or distribute the photo etc to someone else (R v Fellows 1997 and R v T 1999)

Question 108

OFFENCE 3- possession with a view to distributing by himself or others s1(1)(c)

Answer 108

It is an offence for a person to have in his possession such a photo with a view to its being distributed by himself or others.

Question 109

What amounts to possession?

Answer 109

Copying onto a hard drive and storing ‘pop-ups’ containing indecent images of children amounts to possessing those images (R v Harrison [2007])

Question 110

What if images have been deleted beyond retrieval?

Answer 110

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])

Question 111

Key court decisions- evidence indicating an interest in paedophile material

Answer 111

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])

Question 112

Key court decisions- ‘with a view to distribute’

Answer 112

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])

Question 113

What is the specific defence to offences under s1(1)(a), (b) and (c)?

Answer 113

Consent by the child or reasonable belief in consent in a partnership context under s1A.
(1) Applies to offences under s1(1)(a) or s1(1)(b) or (c), D proves the photo was of the child aged 16 or over and 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
(3) This applies whether the photo or pseudo-photo showed the child alone or with D, but NOT if it showed any other person

Question 114

If D can show the above elements under s1A, what further conditions of the defence will then apply in the case of an offence under s1(1)(a)?

Answer 114

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))

Question 115

If D can show the above elements under s1A, what further conditions of the defence will then apply in the case of an offence under s1(1)(b)?

Answer 115

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)).

Question 116

If D can show the above elements under s1A, what further conditions of the defence will then apply in the case of an offence under s1(1)(c)?

Answer 116

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 117

What is the defence under s1B- when someone might have a legitimate purpose for possessing such material?

Answer 117

(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, or
(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.
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.

Question 118

Who would this defence above apply to?

Answer 118

D must prove that:
- it was necessary for him to make the 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, D was a member of security service, intelligence service or GCHQ and it was necessary for the exercise of any of the functions of that Service/GCHQ
It does not solely apply to police officers- it could apply to private investigators, journalists.

Question 119

What will be taken into account in deicing whether the intention of someone accused of a s1(1)(a) offence attracted criminal liability when ‘making’ a photograph?

Answer 119

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 120

When is a person to be regarded as distributing an indecent photograph?

Answer 120

(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.
It includes lending or offering to another.

Question 121

What is the defence to S1(1)(b) and (c) offences?

Answer 121

(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

Question 122

What might a legitimate reason be?

Answer 122

As an exhibits officer or as a training aid for police officers or social workers.

Question 123

What if the defendant realises or should realise that the material is indecent? Case?

Answer 123

Once D 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 1978 Act if person depicted turns out to be a child (R v Land 1999)

Question 124

What if the intention cannot be proved or D only had photos for his/her own use?

Answer 124

If no such intention can be proved, or if D only had the photos etc for his/her own use, the appropriate charge would be under s160 Criminal Justice Act 1988

Question 125

OFFENCE 4: advertising s1(1)(d)

Answer 125

It is an offence for a person to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows indecent photos or pseudo-photos or intends to do so.

Question 126

Are there any specific defences to s1(1)(d) offences?

Answer 126

No!!

Question 127

Is possession of exposed but undeveloped film included? Case?

Answer 127

Although the offences include video recordings, possession of exposed but undeveloped film does not appear to be covered.

Question 128

What is the offence of possessing indecent photographs?

Answer 128

s160 Criminal Justice Act 1988
(1) Subject to section 160A, it is an offence for a person to have any indecent photo or pseudo-photo of a child in his possession.

Question 129

What type of offence is it?

Answer 129

Triable either way
5 years’ imprisonment on indictment

Question 130

Whose consent is required to prosecute this offence?

Answer 130

Consent of the DPP.

Question 131

What does ‘possession’ mean?

Answer 131

Having custody or control.
Eg: Therefore, an assistant in a sex shop which contains indecent photos of children is, like his employer, in possession of them.

Question 132

What if the image concerned is a computer file?

Answer 132

D is in possession of it at the relevant time if it is within his control.
eg: he can produce it on his screen, produce a hard copy of it or send it to someone else.

Question 133

What if images have been deleted?

Answer 133

Images which have been deleted from a computer may still be considered under the control of D, who is skilled in the use of computers and he has the necessary software to retrieve them.
They are not under the control of someone without the software or skill.

Question 134

What if D did not know he had the photo in his possession?

Answer 134

Offence is only committed if D knows that he has or had the photo or pseudo-photo in his possession.

Question 135

What is the defence to s160 offence?

Answer 135

s160 CJA 1988
(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 photo or pseudo-photo in his possession; or
(b) that he had not himself seen the photograph or pseudo-photo and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photo or pseudo-photo 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.

Question 136

In what case was this defence confirmed?

Answer 136

Collier 2004- D who had not seen the photo or pseudo-photo but had cause to suspect it was indecent, had a defence if he proves that he had no reason to suspect that it was an indecent photo or pseudo-photo of a child.
D knew the photo was indecent, but did not know it was related to a child.

Question 137

What other defences are available to D in relation to marriage and other relationships?

Answer 137

s160A- similar defence to 1978 Act concerning those in marriages or partnerships.
(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photo or pseudo-photo of a child, the defendant proves that the photo or pseudo-photo 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.
(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.

Question 138

What is the offence of the possession of prohibited images of children?

Answer 138

Coroners and Justice Act 2009, s62
(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 139

What type of offence is it?

Answer 139

Triable either way.
3 years’ imprisonment on indictment

Question 140

How is this offence different to the previous image offences?

Answer 140

Targeted at non-photographic pornographic images of children.
This may include computer generated images, cartoons and drawings- not photographs!

Question 140

Whose consent is needed to prosecute this offence?

Answer 140

Consent of the DPP is needed to prosecute.

Question 141

When is an image ‘pornographic’?

Answer 141

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.

Question 142

When does an image fall within subsection (6)?

Answer 142

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.

Question 143

What if an individual image forms part of a series of images?

Answer 143

s62(4)- 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.
s62(5)- 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.

Question 144

What is meant by ‘image’ for this offence?

Answer 144

s65 states 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, but DOES NOT cover indecent photos or pseudo-photos as these are under s160 CJA 1988.

Question 145

How is ‘child’ defined for the purposes of this offence?

Answer 145

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)).

Question 146

What is the defence for this offence?

Answer 146

Coroners and Justice Act 2009 s64
(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.