Possession of Prohibited Images of Children: Three Years on

Publication Date01 August 2013
DOI10.1350/jcla.2013.77.4.857
AuthorAlex Antoniou
SubjectArticle
Possession of Prohibited Images
of Children: Three Years On
Alex Antoniou*
Abstract This article illuminates the possession element of the new of-
fence under s. 62 of the Coroners and Justice Act 2009, which outlaws
certain non-photographic images of child sexual abuse. To this end, the
analysis draws upon the case law concerning the offence of possession of
extreme pornographic images, with which the new offence shares many
common features. The article also presents the latest f‌igures relating to
convictions obtained since s. 62 came into effect in April 2010. Lastly, it
considers the proposed amendment to widen the provisions of the 2009
Act and argues that the already broad scope of the offence should be
limited.
Keywords Children; Prohibited images; Prosecutions; Convictions
Background: changes in legislation
The two principal provisions targeting indecent images of children
(IIOC) in England and Wales are:
1. The Protection of Children Act 1978 (PCA 1978), s. 1(1), which
makes it an offence to take, make, distribute and show an
advertisement of indecent photographs or pseudo-photographs of
children.1These offences carry a ten-year maximum prison
sentence.2
2. The Criminal Justice Act 1988 (CJA 1988), s. 160(1), which out-
laws the mere possession of indecent photographs or pseudo-
photographs of a child.3This offence is punishable by up to f‌ive
years’ imprisonment maximum.4
An allegation of an offence contrary to either s. 1 or s. 160 is triable
either way and proceedings with respect to either offence may not be
instituted without the DPP’s consent.
The PCA 1978 aims to prevent the involvement of children in the
production of indecent photographs or f‌ilms5indirectly by criminalising
the creation or distribution of such material:
Potential damage to the child occurs when he or she is posed or pictured
indecently, and whenever such an event occurs the child is being exploited.
* The City Law School, City University London; e-mail: Alex.Antoniou.1@
city.ac.uk.
1 PCA 1978, ss. 1 and 6, as amended by the Criminal Justice and Public Order Act
1994 (CJPOA 1994), s. 84.
2 PCA 1978, s. 6(2), as amended by the Criminal Justice and Court Services Act
2000 (CJCSA 2000), s. 41(1).
3 CJA 1988, s. 160, as amended by the CJPOA Act 1994, s. 84(4).
4 CJA 1988, s. 160(2A), as amended by the CJCSA 2000, s. 41(3).
5 PCA 1978, s. 7(2) states that references to an indecent photograph include ‘an
indecent f‌ilm, a copy of an indecent photograph or f‌ilm, and an indecent
photograph comprised in a f‌ilm’.
337The Journal of Criminal Law (2013) 77 JCL 337–353
doi:10.1350/jcla.2013.77.4.857
It is the demand for such material which leads to the exploitation of
children and the purposes of the [1978] Act (and section 160) is to reduce,
indeed as far as possible to eliminate, trade in or possession of it.6
Thus, the target is the process by which photographs are made and not
the photographs themselves, which may or may not be found obscene
under the Obscene Publications Act 1959 and the Obscene Publications
Act 1964.7Additionally, possession of IIOC is deemed to increase the
demand for, and consequently the production of content which necessi-
tates the commission of a crime.8A growing body of research shows that
child pornographers are signif‌icantly more likely than not to have sexu-
ally abused a child9and that there is a clear correlation between IIOC
offending and contact sexual offending against children although causa-
tion cannot be established.10 Moreover, the impact of IIOC goes beyond
the physical harm inf‌licted on a child as a result of the original abusive
act: victims are faced with re-victimisation every time the image is
accessed, as they know that their image can be repeatedly viewed. In R
v Beany, the Court of Appeal stated that:
the serious psychological injury which [children] would be at risk of being
subjected to arises not merely from what they are being forced to do, but
also from their knowledge that what they are being forced to do would be
viewed by others.11
A child is def‌ined as a person under the age of 18.12 In deciding
whether a photograph of a child is indecent, the age is a material factor.13
It is not essential to know the identity of the child depicted: 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 age of [18].14 The
task of ascertaining the age of the person photographed is a question of
fact solely for the jury to determine; expert evidence on this matter is
inadmissible.15
6R vLand [1998] 1 Cr App R 301 at 305, per Judge LJ.
7 R. Stone, Extending the Labyrinth: Part VII of the Criminal Justice and Public
Order Act 1994 (1995) 58 MLR 386 at 389.
8 A. Millwood Hargrave and S. Livingstone, Harm and Offence in Media Content: A
Review of the Evidence, 2nd edn (Intellect Books: Bristol, 2009) 115.
9 M. Bourke and A. Hernandez, The Butner Study Redux: A Report of the
Incidence of Hands-on Child Victimization by Child Pornography Offenders
(2009) 24 Journal of Family Violence 183 at 183 (emphasis in the original).
10 Child Exploitation and Online Protection Centre, A Picture of Abuse: A Thematic
Assessment of the Risk of Contact Child Sexual Abuse Posed by Those Who Possess Indecent
Images of Children, Executive Summary (CEOP: London, 2012) para. 23.
11 R vBeaney [2004] EWCA Crim 449 at [9], per Keith J.
12 PCA 1978, s. 7(6) originally described a child as a person under the age of 16.
However, the Sexual Offences Act 2003 (SOA 2003), s. 45(2) amended the 1978
Act by raising the age limit to 18. The same change applies to the CJA 1988 by
virtue of s. 160(4). See A. Gillespie, The SOA 2003: (3) Tinkering with child
pornography”’ [2004] Crim LR 361 for a discussion about whether this change is
desirable or necessary.
13 R v Owen (1988) 86 Cr App R 291 at 296, per Stocker LJ.
14 PCA 1978, s. 2(3).
The Journal of Criminal Law
338

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