Child Pornography: Balancing Substantive and Evidential Law to Safeguard Children Effectively from Abuse

AuthorAlisdair A. Gillespie
Published date01 January 2005
Date01 January 2005
DOIhttp://doi.org/10.1350/ijep.9.1.29.64790
Subject MatterArticle
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 29
BALANCING SUBSTANTIVE AND EVIDENTIAL LAW TO SAFEGUARD CHILDREN FROM ABUSE
(2005) 9 E&P 29–49
T
Child pornography:
Balancing substantive
and evidential law to
safeguard children
effectively from abuse
By Alisdair A. Gillespie*
University of Teesside; email A.A.Gillespie@Tees.ac.uk
Abstract. The law relating to child pornography in the United Kingdom has,
over recent years, changed dramatically. These changes have been brought
about by both legislation and case law. This article critically analyses the
consequences of these changes and, in particular, considers the probity of
apparent reverse burdens of proof created by the legislation. When the right
to a fair trial is being examined, it is usual to balance the rights of the
individual defendant and the rights of society to expect a smooth-running
criminal justice system. The balancing act in this field is more complicated
because those who are the subject of abusive images are the most vulnerable
members of society, and thus the balance struck must not unduly constrain
law enforcement agencies, preventing them from tackling the exploitation
and abuse of children.
Definitions
here is no specific offence relating to ‘child pornography’ and indeed the
term does not represent a specific legal concept. Until recently, discussion
was limited to indecent photographs of children. The Sexual Offences Act
2003 has altered this terminology, in part, by making reference to a ‘child involved
in pornography’1 which is probably as close to the term ‘child pornography’ as one
could get without using it. Professionals tend not to like the term ‘child pornography’
because there is a suggestion that it understates the offence, and instead they prefer
* I wish to thank Professor David Ormerod of the University of Leeds for his helpful comments
on a draft of this article.
1 Sexual Offences Act 2003, ss. 48–50.
30 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
BALANCING SUBSTANTIVE AND EVIDENTIAL LAW TO SAFEGUARD CHILDREN FROM ABUSE
terms such as ‘abusive images’.2 That said, the term is readily understood, especially
in an international context. For the purposes of this article, I will focus on image-
based child pornography and thus will refer to the term ‘indecent photographs’ of a
child because this is the term used in the legislation.
There are two principal offences relating to indecent photographs of a child. The
first is governed by s. 160 of the Criminal Justice Act 1988 and criminalises the
possession of an indecent photograph of a child. Breach of this section is, since 21
January 2001,3 punishable by a maximum of five years’ imprisonment. The second
offence is governed by s. 1 of the Protection of Children Act 1978 which makes it an
offence to make, take, show or distribute an indecent photograph of a child, or to
possess such an image with intent to show or distribute it. Breach is, since 2001,
punishable by a maximum of 10 years’ imprisonment, making it a serious offence.
The effect of conviction is also serious, as it labels an offender a ‘sex offender’ which
brings with it legal and social consequences. The legal implications include the
requirement to notify the police as to residency and holiday movements,4 potential
disqualification from working with children5 and restricted opportunities through
de facto ‘Schedule 1’ status.6 The potential implications from the point of view of
society can be even more serious, with the media portrayal of such offenders playing
to the fears of the public.7 Reports of offenders being shunned or even attacked are
not uncommon8 and these effects can apply even to those who are merely investigated
for such offences.9
There are three elements common to s. 1 of the 1978 Act and s. 160 of the 1988 Act:
• indecent
• photograph
• child.
2 See M. Taylor and R. Quayle, Child Pornography: An Internet Crime (Routledge: London, 2003) 7.
3 Criminal Justice and Court Services Act 2000, s. 41 raised the penalties for these offences.
4 See Part 2 of the Sexual Offences Act 2003.
5 Criminal Justice and Court Services Act 2000, ss. 28 and 29A.
6 Schedule 1 status refers to an offender who has been convicted of an offence listed in Sched.
1 to the Children and Young Persons Act 1933 and colloquially refers to someone who has
been convicted of an offence of child abuse. The exact status has become slightly less important
as the law has changed with new offences created that have not been placed on the Schedule.
7 See J. Silverman and D. Wilson, Innocence Betrayed: Paedophilia, the Media and Society (Polity
Press: Cambridge, 2002) esp. ch. 8.
8 See, e.g., ibid. at 125–37.
9 A good example of this being Chris Morgan, one of the first elected mayors (North Tyneside
council), who was forced to stand down after being accused of downloading child pornography,
an offence he was later cleared of (see http://news.bbc.co.uk/1/hi/england/tyne/3643880.stm,
retrieved 19 November 2004).

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