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UK Law in Sedition, Obscenity and Blasphemy
Perverting the Course of Justice
Prosecution For Assaulting a Police Officer
Security Guards for Shoplifting
Removal of Art From Public Place
Obtaining Property By Deception
Being Drunk as a Criminal Defence
Sexual Offences and Age of Consent
Electronic Communications Offences
Unauthorised Access to Computer Material
Unauthorised Modification of Computer Programs Data
Fraud In Information Communication Technology
Since the explosion of the internet one issue which has been at the forefront of debates has been that of pornography with access to these images increasing on a huge scale and also the technological advances developed by many of these sites. Unfortunately with the onset of the internet and porn there has developed a huge market for indecent images of children. Accordingly there must be laws which are aimed at prosecuting the offenders and most importantly protecting the children themselves.
The legislation for England and Wales which deals directly with offences concerning indecent images of children are as follows:
The Protection of Children Act 1978 – Section 1
The Criminal Justice Act 1988 – Section 160
Section 45(1) of the Sexual Offences Act 2003 coming into force from 1 May 2004 changed the definition of a child from 16 years to 18 years.
The issue of a photograph of a child throws up certain issues which are not present in other sexual offences against children where the age of the child is known when the offence has been reported. In the case of an indecent image of a child the issue is how the age of the child is determined. In some cases this will be obvious; in others it will be less obvious.
The age of the child is an issue for the jury to decide without the requirement for assistance by experts. Often direct evidence will be rare so what is required is a common sense approach on the part of the jury.
There is also an issue concerning the offences in relation to a pseudo-photograph of a child – the law states that 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 the Act as showing a child.
Furthermore if the predominant impression conveyed is that the person shown is a child regardless that some physical characteristics are shown to be adult the pseudo-photograph will be treated as portraying a child.
Section 1 of the Protection of Children Act creates the following offences:
To take, permit to be taken, or to make any indecent photographs or pseudo-photographs of a child
To distribute or show such indecent photographs or pseudo-photographs
To have in his possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by himself or others
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
For an offence under Section 1 of the Protection of Children Act the following elements must be established by the prosecution:
That the defendant deliberately or knowingly did one of the following:
Made
Took or permitted to be taken
Distributed or shown
Published or caused to be published
That the photograph or pseudo-photograph was indecent. When looking at this offence a photograph will include an indecent film, a copy of a photograph or film, computer data capable of conversion into a photo or a copy. In order for it to be seen as indecent the jury must look at the standard based on what is the recognised standard of proprietary.
That the photograph was of a child
Section 160 of the Criminal Justice Act covers the offence of possession of an indecent image of a child. There is no requirement that the defendant had to have any motive in relation to making or distributing the image – all which is required is that the defendant had the image in his possession.
Obviously there should be a distinction between possession when relating to drug offences as it is unlikely that the defendant would physically have the photograph on his person – in most cases possession relates to possessing it on a hard drive of a computer.
Furthermore case law has established that someone will only be in possession of an image when they had custody and control over the image at that time. If at the time of possession the image is beyond his control he will not be deemed to posses it. This brings in the issue of multiple users of the same computer.
The following are defences in relation to the offences under the Protection of Children Act:
Marriage of the child aged between 16 or 17
Legitimate reason
Has not seen the photographs
This defence is the only available defence for the offence of taking the photos and publishing advertisements for the photos.
As the definition of a child has been changed from 16 to 18 but it is still legal to marry when you are 16 it is necessary that this defence is in place.
The defence of legitimate reason applies to the offences of distributing the photographs or possession with intent to distribute.
Persons with legitimate reasons for distributing or possessing with intent to distribute may be a policeman investigating a case, a barrister conducting a defence or an expert witness preparing files for their court appearance.
This defence occurs if the defendant had not seen the photographs and did not know them to be indecent and did not have cause to believe them to be indecent. Defendants in cases concerning images on their computer will frequently claim this defence. Accordingly it will be up to the police to present evidence to show that the defendant had seen the pictures.
It is often the case that the defendant may claim that he was simply viewing standard pornography sites when the images popped up on the screen. This is easily refutable as it will be normal for the prosecution to prove that the images had been saved by the defendant.
It is also possible that the defendant will claim that another individual has accessed his computer and saved the images. This is always an issue which should be covered in the initial police interview and is a claim that can easily be disproven by the evidence of passwords to access both the computer and the specific sites.
For the offence of possessing an image of a child under Section 160 of the Criminal Justice Act there exists the following defences, the first three of which are similar to those under the Protection of Children Act:
Legitimate reason
Lack of knowledge
That the photograph was sent to him without any prior request on his behalf and that he did not keep it for a reasonable time
This last defence only applies to simple possession and does not apply to any of the offences under the Protection of Children Act. However, the Criminal Justice Act does not define what is meant by prior request and what is meant by a reasonable time.
This brings up the issue of what is meant by not keeping it and whether simply deleting it from a computer is enough. For example if an image has been deleted from a computer it can still be extracted from the deleted files on the hard disc. When police examine computers they use specialist software in order to enable them to retrieve images. This brings in the question of whether the defendant had deleted it for the purposes of retrieving it or if they could in fact do this without specialist technology.
The normal position for legislation existing in England and Wales is that it will only apply to offences occurring in England and Wales, however, the provisions under Section 1 of the Protection of Children Act and 160 of the Criminal Justice Act now have extra-territorial protection due to Section 72 of the Sexual Offences Act 2003.
Accordingly any act done by a person in a country or territory outside the UK shall constitute a sexual offence under UK law if it would constitute an offence under the laws of that territory and it would also constitute a sexual offence under the laws of England and Wales.
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