The Protection of Children Act 1978 is an
Act of the
Parliament of the United Kingdom
The Parliament of the United Kingdom is the supreme legislative body of the United Kingdom, the Crown Dependencies and the British Overseas Territories. It meets at the Palace of Westminster, London. It alone possesses legislative suprema ...
that criminalized indecent photographs of children. The Act applies in
England
England is a country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separated from continental Europe b ...
and
Wales
Wales ( cy, Cymru ) is a Countries of the United Kingdom, country that is part of the United Kingdom. It is bordered by England to the Wales–England border, east, the Irish Sea to the north and west, the Celtic Sea to the south west and the ...
. Similar provision for
Scotland
Scotland (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean to the ...
is contained in the
Civic Government (Scotland) Act 1982
The Civic Government (Scotland) Act 1982 is an Act of the United Kingdom Parliament which makes provision for a wide range of civic government matters.
Effects of the Act
Parts I and II of the Act deal with licensing by local authorities of a r ...
and for
Northern Ireland
Northern Ireland ( ga, Tuaisceart Éireann ; sco, label= Ulster-Scots, Norlin Airlann) is a part of the United Kingdom, situated in the north-east of the island of Ireland, that is variously described as a country, province or region. Nort ...
in the Protection of Children (Northern Ireland) Order 1978.
History
The Protection of Children Bill was put before Parliament as a
Private Member's Bill
A private member's bill is a bill (proposed law) introduced into a legislature by a legislator who is not acting on behalf of the executive branch. The designation "private member's bill" is used in most Westminster system jurisdictions, in whi ...
by the
Conservative
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization i ...
member of parliament
Cyril Townsend
Sir Cyril David Townsend (21 December 1937 − 20 November 2013) was a British politician.
Townsend was elected Conservative Member of Parliament for Bexleyheath at the February 1974 election, and held the seat until retiring at the 1997 el ...
in the 1977–1978 parliamentary session. This Bill came about as a result of the concern over
child pornography
Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a chi ...
and the sexual exploitation of children that had arisen in the
United States of America
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territo ...
in 1977. This cause was taken up in the UK by the press and
Mary Whitehouse
Constance Mary Whitehouse (; 13 June 1910 – 23 November 2001) was a British teacher and conservative activist. She campaigned against social liberalism and the mainstream British media, both of which she accused of encouraging a more permiss ...
, who in a speech in 1977 had accused the
Albany Trust
The Albany Trust was founded in the United Kingdom as a registered charity in May 1958 to complement the Homosexual Law Reform Society (HLRS). It takes its name from The Albany, in Piccadilly, London, where J.B. Priestley and his wife Jacquetta Haw ...
of using public money effectively supporting the
Paedophile Information Exchange
The Paedophile Information Exchange (PIE) was a British pro-paedophile activist group, founded in October 1974 and officially disbanded in 1984.Tom de Castella & Tom Heyde"How did the pro-paedophile group PIE exist openly for 10 years?" BBC New ...
(the project for a joint Albany/PIE pamphlet was scrapped). Decades later, it emerged that she had been accurate in her assertion. The existence of PIE was given by Townsend as an issue favouring legislation against child pornography. Whitehouse's
National Viewers' and Listeners' Association
Mediawatch-UK, formerly known as the National Viewers' and Listeners' Association (National VALA or NVLA), was a pressure group in the United Kingdom, which campaigned against the publication and broadcast of Mass media, media content that it vi ...
was able to campaign in support of the Bill and present a petition bearing 1 million signatures.
When the progress of the bill was threatened by MP
Ian Mikardo
Ian Mikardo (9 July 1908 – 6 May 1993), commonly known as Mik, was a British Labour Member of Parliament. An ardent socialist and a Zionist, he remained a backbencher throughout his four decades in the House of Commons. He was a member of Nati ...
, who blocked it to protest against tactics being used by the
Conservative party
The Conservative Party is a name used by many political parties around the world. These political parties are generally right-wing though their exact ideologies can range from center-right to far-right.
Political parties called The Conservative P ...
to block
Edward Fletcher's bill on employment protection, the Prime Minister,
James Callaghan
Leonard James Callaghan, Baron Callaghan of Cardiff, ( ; 27 March 191226 March 2005), commonly known as Jim Callaghan, was Prime Minister of the United Kingdom from 1976 to 1979 and Leader of the Labour Party from 1976 to 1980. Callaghan is ...
, stepped in to ensure that the Bill received the time required to become law.
Offences
Currently, the Act
[Protection of Children Act 1978 (c.37) - Statute Law Database]
/ref> defines as offences, roughly:
*To take or make any indecent photograph or pseudo-photograph of a child;
*To show or distribute such (pseudo-)photographs;
*To possess such (pseudo-)photographs with intent to show or distribute them;
*To advertise for showing or distributing such (pseudo-)photographs.
Amendments
1994
Originally, in 1978, the Act referred to "photographs".
In 1994, to cover also actions involving image
An image is a visual representation of something. It can be two-dimensional, three-dimensional, or somehow otherwise feed into the visual system to convey information. An image can be an artifact, such as a photograph or other two-dimensiona ...
s created or altered with machines like computers, the Act was amended by the Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 (c.33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
, to refer to taking, or ''making'', "photographs or pseudo-photographs", etcetera.
2008
The Act was further amended by the Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act 2008 (c 4) is an Act of the Parliament of the United Kingdom which makes significant changes in many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Nor ...
, 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.
Definitions
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'')
The Sexual Offences Act 2003
The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom.
It partly replaced the Sexual Offences Act 1956 with more specific and explicit wording. It also created several new offences such as non-consensual voyeuris ...
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 Bowden may refer to:
Places Australia
* Bowden Island, one of the Family Islands in Queensland
* Bowden, South Australia, northwestern suburb of Adelaide
* Bowden railway station
Canada
* Bowden, Alberta, town in central Alberta
England
* Bowde ...
'' 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
The Protection of Children Act 1978 is an Act of Parliament, Act of the Parliament of the United Kingdom that criminalized indecent photographs of children. The Act applies in England and Wales. Similar provision for Scotland is contained in the ...
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
The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom.
It partly replaced the Sexual Offences Act 1956 with more specific and explicit wording. It also created several new offences such as non-consensual voyeuris ...
, 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 the defendant were married or in a relationship. These sections were further amended by the Civil Partnerships Act 2004
The Civil Partnership Act 2004 (c 33) is an Act of the Parliament of the United Kingdom, introduced by the Labour government, which grants civil partnerships in the United Kingdom the rights and responsibilities very similar to those in civil ...
to "civil relationships" after "were married"
Definition of photograph
'Photograph' shall include film, video-recording, copy of photograph or film or video-recording, photo comprised in a film or video-recording; negatives of photograph etc.; data on a computer etc. which can be converted to photograph etc.[
]
Definition of indecent
The Act does not define the term 'indecent
Inappropriateness refers to standards or ethics that are typically viewed as being negative in a society. It differs from things that are illicit in that inappropriate behavior does not necessarily have any accompanying legal ramifications.
Co ...
'.[
]
Definition of 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
further a copy of a 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.[
]
Offences committed abroad
Offences under this Act are subject to the dual criminality provisions of s.72 of the Sexual Offences Act 2003
The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom.
It partly replaced the Sexual Offences Act 1956 with more specific and explicit wording. It also created several new offences such as non-consensual voyeuris ...
.
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'' 972
Year 972 ( CMLXXII) was a leap year starting on Monday (link will display the full calendar) of the Julian calendar.
Events
By place
Byzantine Empire
* Spring – Emperor John I Tzimiskes divides the Bulgarian territories, recent ...
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, 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 criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
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 epresenting Mr Mouldwas rightly concerned that the jury, in deciding whether or not the photograph was indecent, would wrongly take into account ata 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 uccessfullysought 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
In ''R v Bowden'', a 1999 appeal, the English Court of Appeal dismissed a defence effort to depart from the literal rule, the taking of the natural meaning of statutory language. It concerned the making (copying with knowledge of the content) of ...
'' (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.
Sentencing
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'':
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 or a fashion shoot 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. They are also barred from working in the legal and medical professions and will be dishonourably discharged from HM Armed Forces
The British Armed Forces, also known as His Majesty's Armed Forces, are the military forces responsible for the defence of the United Kingdom, its Overseas Territories and the Crown Dependencies. They also promote the UK's wider interests, su ...
.
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 enduring relationships
In cases where a defendant has taken or made a photographic image of a child over the age of 18 (this age was 16 prior to the 2003 amendments), the defendant is not guilty if, at the time when they obtained the photograph, they and the child:
:: (a) were married; or
:: (b) lived together as partners in an ''enduring family relationship''1; and
:: (c) the defendant ''reasonably believed'' that the child consented to the image being obtained.
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.
1 - A definition of "enduring family relationship" is not supplied within the Act.
Mens Rea
The common law mens rea
In criminal law, (; Law Latin for "guilty mind") is the mental element of a person's intention to commit a crime; or knowledge that one's action (or lack of action) would cause a crime to be committed. It is considered a necessary element ...
defence applies to the Protection of Children Act offences. The prosecution must demonstrate that a defendant took a photograph deliberately, intending it to be an indecent photograph showing a child. Presumabably the notion of intention is that defined elsewhere in English criminal law found in ''Woolin'' 998
Year 998 ( CMXCVIII) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar.
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By place
Europe
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that is, either clear intent or (summarised) 'whatever the defendant's purpose, if it is virtually certain that the actus reus will result from the defendant's action, then the jury may infer intent."
By the latter test mere ''foreseeability'' or ''likelihood'' will not suffice (see ''Nedrick'' and ''Woollin'') as this encroaches on the notion of recklessness. It would appear that the offences in the act are of specific intent (that is, intent is required and not mere recklessness, and certainly the offences are not absolute with strict liability, see ''Smith'' and ''Jayson'' below).
This was upheld in ''R v Smith and Jayson'' (2003), where it was held that "the mens rea necessary to constitute the offence f making an indecent pseudo-photograph of a childis 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" ''R v Smith and R v Jayson [2002] EWCA Crim 683
/ref>
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'').
The definition of the mens rea for making, however was thought to be thrown into confusion by the decision in ''Harrison v R [2007] EWCA Crim 2976'' where it was suggested that if the actions of the defendant were ''very likely'' to make an image that would constitute the mens rea. ''Smith'' and ''Jayson'' however were not overtly overruled and ''Harrison'' is regarded as made ''per incuriam'' or at least a badly worded setting out of the rule found in ''Woollin.'' In ''Harrison'' there was clear and admitted evidence that a directed (and "unusual") search for and visit to a site had been made which would fall under the ''Woollin'' rule - it could be argued that it was a virtual certainty that images would be made (in the cache). Harrison knew that ''pop-ups'' which contained indecent images of children would be produced and carried on regardless.
See also
*Child pornography laws in the United Kingdom
Child pornography laws in England, Scotland, Wales and Northern Ireland are covered by the Protection of Children Act 1978 ("the 1978 Act"), which made it illegal to take, make, distribute, show, or possess for the intent of showing or distributing ...
*Criminal Justice Act 1988
The Criminal Justice Act 1988 (c 33) is an Act of the Parliament of the United Kingdom.
Title
The title of this Act is:
Unduly lenient sentences
In England and Wales, the Act granted the Attorney General the power to refer sentences for c ...
*Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 (c.33) is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the law, most notably in the restriction and reduction of existing rights, clamping down on unlicensed ...
*Paedophile Information Exchange
The Paedophile Information Exchange (PIE) was a British pro-paedophile activist group, founded in October 1974 and officially disbanded in 1984.Tom de Castella & Tom Heyde"How did the pro-paedophile group PIE exist openly for 10 years?" BBC New ...
*Sexual Offences Act 2003
The Sexual Offences Act 2003 (c. 42) is an Act of the Parliament of the United Kingdom.
It partly replaced the Sexual Offences Act 1956 with more specific and explicit wording. It also created several new offences such as non-consensual voyeuris ...
Notes and references
External links
*
Indecent photographs of children
- the official legal guidance from the Crown Prosecution Service
The Crown Prosecution Service (CPS) is the principal public agency for conducting criminal prosecutions in England and Wales. It is headed by the Director of Public Prosecutions.
The main responsibilities of the CPS are to provide legal adv ...
, 1 April 2008.
{{DEFAULTSORT:Protection Of Children Act 1978
Censorship in the United Kingdom
Sex laws
United Kingdom Acts of Parliament 1978
Child sexual abuse in the United Kingdom