Protection of Children Act 1978

The Protection of Children Act 1978 is an Act of the Parliament of the United Kingdom.

The Protection of Children Bill was put before Parliament as a Private Member's Bill by Cyril Townsend in the 1977-1978 session of Parliament.

This Bill came about as a result of the concern over child pornography and the sexual exploitation of children that arose in the United States of America in 1977 and the uptake of this cause in the UK by Mary Whitehouse and the press. At the same time, an organisation called the Paedophile Information Exchange was attracting much media attention. In this atmosphere, Whitehouse's National Viewers' and Listeners' Association was able to campaign in support of the Bill and present a petition bearing 1,600,000 signatures to 10 Downing Street.

When the progress of the Bill was threatened by MP Ian Mikardo, who blocked it to protest against tactics being used by the Conservative party to block Edward Fletcher's bill on employment protection, the Prime Minister, James Callaghan, stepped in to ensure that the Bill received the time required in order to become law. ( [http://archive.theboltonnews.co.uk/2003/4/18/555769.html Bolton Evening News, 18 April 1978] )

The Law

Offences

As first enacted, the Protection of Children Act 1978 defined 6 offences:

Section 1.–

(1) It is an offence for a person–
:(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or:(b) to distribute or show such indecent photographs; or:(c) to have in his possession such indecent 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 intends to do so.

The Criminal Justice and Public Order Act 1994 amended this to deal with the concept of pseudo-photographs.

1.– (1) 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. [http://www.statutelaw.gov.uk/content.aspx?parentActiveTextDocId=1502057&ActiveTextDocId=1502059 Protection of Children Act 1978 (c.37) - Statute Law Database ] ]

It is an offence to "attempt to incite" any criminal offence in the United Kingdom.

The "making" offence

Causing an indecent photograph of a child to exist on a computer screen is considered to be "making an indecent photograph of a child".

"A person who either downloads images on to disc or who prints them off is making them. The Act is not only concerned with the original creation of images, but also their proliferation. Photographs or pseudo-photographs found on the Internet may have originated from outside the United Kingdom; to download or print within the jurisdiction is to create new material which hitherto may not have existed therein." (R v Bowden (1999))

The Sexual Offences Act 2003 further amended the 1978 Act so as to increase the age of a child from 16 to 18; consequently, the 2003 Act also added a defence to cover the situation where an "indecent photograph of a child" was created by that child's partner. Because of the Bowden decision, it was also necessary to add a defence where it was necessary to make an indecent photograph or pseudo-photograph for the purposes of a criminal investigation.

1.– (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.

Definition of a child

Initially, the definition of a child was contained in the definition of offences::1.-(1) It is an offence for a person-::(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16) ;

While adding the definition of pseudo-photographs, the 1994 Act deleted this definition and inserted a new subsection to the interpretation section:-

:7.-(6) 'Child', subject to subsection (8), means a person under the age of 16.

Subsection (8) defines pseudo-photographs. Subsection (6) was further amended by the Sexual Offences Act 2003, which raised the age of a child to 18.

Section 45 of the Sexual Offences Act 2003 made a number of changes to the 1978 Act. Principally it redefines a "child" for the purposes of the 1978 Act as a person under 18 years, rather than under 16 years, of age.

Section 45 of the Sexual Offences Act 2003 also inserted new sections 1A (Marriage and other relationships) into the 1978 Act and 160A into the Criminal Justice Act 1988. These sections apply where, in proceedings for an offence under section 1 of the 1978 Act or section 160 of the 1988 Act relating to an indecent 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 were married or in a relationship. These sections were further amended by the Civil Partnerships Act 2004 to "civil relationships" after "were married" [ [http://www.wikicrimeline.co.uk/index.php?title=Sexual_offences_act_2003#Section_45:_Indecent_photographs_of_persons_aged_16_or_17 WikiCrimeLine: Indecent photographs of persons aged 16 or 17] ]

Definition of an indecent photograph

The Act defines an indecent photograph broadly without defining the term "indecent", as "an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film." The act defines "copy" to include negatives and a computer disc or any form of electronic means that can be converted into a photograph, and defines "film" as "any form of video-recording".

Definition of an indecent pseudo-photograph

The Act defines a "pseudo-photograph" as "an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph", and defines an "indecent pseudo-photograph" broadly without defining the term "indecent", as a copy of an indecent pseudo-photograph, including data stored on a computer disc or by any other form of electronic means that can be converted into a pseudo-photograph.

Extended definition

The Act was further amended by the Criminal Justice and Immigration Act 2008, [Section 69, not yet in force.] which provided that "photograph" includes:

"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 including data stored on a computer disc or by any other form of electronic means that can be converted into such an image.

Offences committed abroad

Offences under this Act are subject to the dual criminality provisions of s.72 of the Sexual Offences Act 2003.

Interpretation

Indecency

In R v Graham-Kerr (1988), the accused had taken photographs of a young boy at a nudist meeting at a public swimming baths. The Court of Appeal held that the motivation of the photographer had no influence on the decency or otherwise of the photographs taken; a photograph is an indecent photograph of a child if it is indecent, and if it shows a child.

Whether or not a photograph or pseudo-photograph is indecent is a question of fact, and as a question of fact it is something for a jury or magistrate to decide. The jury should apply the standard of decency which ordinary right-thinking members of the public would set - the "recognised standards of propriety" as R v Stamford [1972] puts it.

Relevance of the age of a known subject

In R v Owen (1988), it was held that age of the child in the photograph is a consideration the jury should bear in mind when deciding whether or not the image is "indecent". Owen was a professional photographer who had taken a number of photographs of a 14-year-old girl who, it was claimed, wanted to become a model. In these photographs the girl was scantily dressed and showing her bare breasts. The defence argued that the image should be judged as it stood, disregarding evidence of the girl's age - presumably thinking that a similar image showing a 16 or 17 year old girl would not be considered indecent (at that time - since then, the age of a child has been increased to 18).

Computer files

In R v Fellows [1997] the Court of Appeal held that a computer file came within the scope of the definitions of the Act.

Section 7(2) of the 1978 Act defines references to an indecent photograph as including a copy of an indecent photograph.

A computer file contains data, not visible to the eye, which can be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original photograph from which it was derived. It is a form of copy which makes the original photograph, or a copy of it, available for viewing by a person who has access to the file. There is nothing in the Act which makes it necessary that a copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. The Court of Appeal concluded that there is no restriction on the nature of a copy, and that the data in a computer file represents the original photograph, in another form.

Establishing mens rea

In 2003, the Sentencing Advisory Panel provided guidance for Judges considering sentences for people convicted of an offence under the Protection of Children Act. The lowest level of indecency was described as "images depicting erotic posing with no sexual activity."

In "R v Mould" (2000), the Appeal Court ruled that "Mr Burton [representing Mr Mould] was rightly concerned that the jury, in deciding whether or not the photograph was indecent, would wrongly take into account [data showing access to paedophile discussion forums] ." Although it was agreed that the jury should not use such information to make a judgment regarding the decency of the image for which Mr Mould was convicted, it was understood that "the prosecution [successfully] sought to rely on it in order to prove that the appellant had deliberately created the .bmp file."

While a defendant's proven sexual attraction to children should not affect indecency, it may affect the perceived "mens rea" of an act.

Prosecuting a photograph where the age of the subject is unknown

Where the age of the subject of a photograph is uncertain (i.e. where the identity of the subject is unknown), the subject's age shall be determined from the photograph.

Section 2.-(3) provides that a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the defined age of a child.

In R v Land (1997), the Court of Appeal held that a jury is as well placed as an expert (e.g. a paediatrician) to assess any argument addressed to the question whether the prosecution had established that the person depicted in a photograph was a child, and in any event expert evidence would be inadmissible: expert evidence is admitted only to assist the court with information which was outside the normal experience and knowledge of the judge or jury.

Making photographs (computer files)

In an appeal against conviction in R v Bowden (1999) the Court of Appeal held that downloading data representing indecent photographs of children from the Internet amounts to an offence within the meaning of s.1(1)(a) of the Protection of Children Act 1978.

Collages

In Goodland v DPP (2000), Lord Justice Simon Brown ruled that "an image made by an exhibit which obviously consists, as this one does, of parts of two different photographs sellotaped together cannot be said to appear to be "a photograph". This means that, if an item does not appear to be a single photograph, it does not fall within the scope of the Protection of Children Act. A photocopy or scan of such an item may appear to be a single photograph and so fall under the Act and could therefore be illegal if it shows a child and is judged to be indecent. [ [http://www.bailii.org/ew/cases/EWHC/Admin/2000/302.html Atkins v. Director of Public Prosecutions & Goodland v. Director of Public Prosecutions [2000#93; EWHC Admin 302]

entencing

The sentencing guidelines for offences committed contrary to the Protection of Children Act were decided by the Sentencing Advisory Panel, to assist with sentencing during "R v Oliver et al"

The levels of indecency are as follows:

Judges use the following guidelines when sentencing someone who has been convicted under the "Protection of Children Act":

[ [http://www.sentencing-guidelines.gov.uk/guidelines/other/courtappeal/default.asp?T=Cases&catID=5&subject=PORNOGRAPHY&SubSubject=Making%20and%20distributing%20indecent%20photographs%20of%20a%20child Sentencing Guidelines website-Guidelines-Other guidelines-Court of Appeal ] ]

Images which are below the threshold for Level 1 - but which are judged to be indecent by a jury - will be treated as Level 1 images during sentencing; therefore a naturist image with no erotic posing will be treated as a Level 1 indecent image of a child, if judged to be indecent.

A person who is convicted of an offence under the Protection of Children Act is also likely to be banned from working with children in the United Kingdom, and ordered to sign the Sex Offenders Register.

Defences

There are a small number of defences against charges under the Protection of Children Act. Below is a list of defences set by the statutes, precedents and case law.

Marriage and other relationships

In cases where a defendant has taken or made a photographic image of a child over the age of 16, the defendant is not guilty if, at the time when he obtained the photograph, he and the child:

:: (a) were married; or

:: (b) lived together as partners in an enduring family relationship; and

:: (c) the defendant reasonably believed that the child consented to the image being obtained. [ [http://www.statutelaw.gov.uk/content.aspx?parentActiveTextDocId=820904&activetextdocid=820963 Sexual Offences Act 2003 (c. 42) - Statute Law Database ] ]

This exemption was introduced in 2003 under the Sexual Offences Act, which had changed the statutory definition of "child" (in the Protection of Children Act) from 16 to 18.

Mens Rea

The common law mens rea defence applies to the Protection of Children Act offences. The prosecution must demonstrate that a defendant took a photograph deliberately, intending (or being reckless as to) it being an indecent photograph showing a child.

This was upheld in R v Smith & Jayson (2003), where it was held that "the mens rea necessary to constitute the offence [of making an indecent pseudo-photograph of a child] is that the act of making should be a deliberate and intentional act with knowledge that the image made is, or is likely to be, an indecent image of a child" " [ [http://www.geocities.com/pca_1978/reference/smithJayson2003.html R v Smith and R v Jayson [2002 EWCA Crim 683 ] ]

It is thus a defence for the defendant to raise sufficient doubt about whether he took, made, distributed, showed or possessed an image without the knowledge that the image was, or was likely to be:

::* an indecent image; and::* an image of a child.

Further to this, if an image is found only in a computer cache, if the defendant can reasonably be thought not to have had knowledge of the existence of the cache, he is innocent of a possession offence. The mere existence of the image in the cache should not necessarily be sufficient proof that the image was made when it was downloaded, however; this should be backed up by evidence of an intentional directed search, for example (see Atkins v DPP).

Law enforcement

It is a defence for the defendant to prove that images were made "for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings"

ee also

*Criminal Justice Act 1988
*Criminal Justice and Public Order Act 1994
*Sexual Offences Act 2003

Notes and references