R v Oliver; R v Hartrey; R v Baldwin

Thursday 21 November 2002

In R v Wild (No 1) [2002] 1 Cr App R(S) 157, this court sought the views of the Sentencing Advisory Panel in relation to offences involving indecent photographs and pseudo-photographs of children, particularly in relation to the question as to when the custody threshold should be regarded as having been passed. As a result of that request, in August 2002 the Panel published its advice to the Court of Appeal. That has been the subject of consideration today. At the court's request, the Crown were represented by Mr Dennis. He made no submissions. We are grateful for the Panel's advice and, as will emerge, save in one or two respects, we adopt it.

In R v Toomer [2001] 2 Cr App R(S) 30, the Court of Appeal set out some general principles applicable to sentencing for these kinds of offence, but since that decision the maximum penalties for the relevant offences have been increased by Parliament.

The statutory position is that, by virtue of section 1(1) of the Protection of Children Act 1978, it is an offence, in essence, to take or make an indecent photograph or pseudo-photograph of a child, or to distribute or show such photographs, or to possess such photographs with a view to their being distributed or shown, or to publish an advertisement conveying that the advertiser distributes or shows such photographs or intends to do so.

The maximum penalty for all of those offences, which was originally three years on indictment, was increased to ten years by section 41(1) of the Criminal Justice and Court Services Act 2000 in relation to offences committed on or after 11 January 2001.

The offence of possessing an indecent photograph or pseudo- photograph of a child under section 160(1) of the Criminal Justice Act 1988 was originally a summary offence with a maximum penalty of six months' imprisonment. But by virtue of section 41(3) of the Criminal Justice and Court Services Act 2000, it became an offence triable either way with a maximum penalty of five years' imprisonment. That provision likewise applies to offences committed on or after 11 January 2001.

Quite apart from the sentence imposed by the court, anyone convicted of or pleading guilty to an offence involving child pornography may be subject to a range of other legal consequences: namely, registration under Part 1 of the Sex Offenders Act 1997; court-ordered disqualification from working with children under sections 26-34 of the Criminal Justice Act and Court Services Act 2000; a list known as 'List 99' maintained by the Department of Education and Skills under the Education (Restriction of Employment) Regulations 2000 of people barred or restricted from employment as a teacher or worker with persons under the age of 19; and a list maintained by the Department of Health under the Protection of Children Act 1999 to prevent the employment of unsuitable people in child-care organisations.

It is to be noted that registration under the Sex Offenders Act is mandatory for all offenders sentenced or cautioned for a qualifying offence, which includes any of the offences to which we have referred under section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988. But there is no requirement to register for an offender who is given a discharge, whether absolute or conditional. Further, offences under both the 1978 and the 1988 Acts are qualifying offences for court-ordered disqualification from working with children if a custodial sentence of 12 months or longer is imposed.

In that statutory context, before turning to the Panel's proposals, it is worth pointing out that it is likely that the number of child pornography offences detected and prosecuted is only a small proportion of the real total. Furthermore, increased access to the internet has greatly exacerbated the problem in this area by making pornographic images more easily accessible and increasing the likelihood of such material being found accidentally by others who may subsequently become corrupted by it. This additional risk adds to the culpability of offenders who distribute material of this kind, especially if they post it on publicly accessible areas of the internet.

We agree with the Panel that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it.

10. As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is an agreed description of what those images depict. Subject to one matter, we accept the Panel's analysis of increasing seriousness by reference to five different levels of activity, derived from the COPINE Project's description of images. We do not that agree with the Panel that COPINE typologies 2 and 3 are properly within Level 1. As it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. Accordingly, with that amendment to the Panel's proposals, we categorise the relevant levels as:

(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality.

As to the nature of the offender's activity, the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse. Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims.

Merely locating an image on the internet will generally be less serious than down-loading it. Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity. We agree with the Panel that the choice between a custodial and non-custodial sentence is particularly difficult. On the one hand, there is considerable pressure, demonstrated by Parliament increasing the maximum permissible sentence, to mark society's abhorrence of child sexual abuse and child pornography by the use of custody. On the other hand, there is evidence that sex offender treatment programmes can be effective in controlling offenders' behaviour and thus preventing the commission of further offences. We agree with the Panel's recommendation that, in any case which is close to the custody threshold, the offender's suitability for treatment should be assessed with a view to imposing a community rehabilitation order with a requirement to attend a sex offender treatment programme. We also agree with the Panel that the appropriate sentence should not be determined by the availability of additional orders, or by the availability of treatment programmes for offenders in custody.

That said, we turn to the particular factors relevant to the level of sentence. We stress that the proposals we make are guidelines intended to help sentencers. They are not to be construed as providing sentencers with a straightjacket from which they cannot escape. We bear in mind the current state of overcrowding in our prisons, and that a custodial sentence should only be imposed when necessary. We also bear in mind the public concern in this area to which we have already referred.

In our judgment, a fine will normally be appropriate in a case where the offender was merely in possession of material solely for his own use, including cases where material was down-loaded from the internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or there was no more than a small quantity of material at Level 1. A conditional discharge may be appropriate in such a case if the defendant pleads guilty and has no previous convictions. But a discharge should not be granted, as we have earlier indicated, for the purpose of avoiding the requirement of registration under the Sex Offenders Act 1997.

Possession, including down-loading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children. But there may be exceptional cases in which the possession of a pseudo-photograph is as serious as the possession of a photograph of a real child: for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs...