Indecent image cases have evolved over the years as technology and user capabilities have advanced.  With increasing frequency the CPS are charging defendant’s with making indecent images under s.1 of the Protection of Children Act 1978 (the 1978
Act) as opposed to possession of indecent images under s.160 Criminal Justice Act 1988 (the 1988 Act).This is as a result of developments in case law over the last 10 years. 

Under the 1988 Act, it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession. Possession involves both a physical and mental element. The Crown must prove that a person has custody and control of the photographs stored on a device in order to possess them. This means he must be capable of, or in a position to, retrieve them. For example, being able to show them on a screen, to make a copy of the image or to send the image to someone else. Proof of the physical element in such cases will depend on consideration of the following:

The mental element that needs to be proved is knowledge. A defendant must knowingly have custody and control of the photographs found on the device in question. Upon conviction on indictment, the maximum sentence is one of five years imprisonment. 

Under s.1(a) of the 1978 Act, it is an offence for a person to take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child. The elements of the offence were explored in R. v. Smith; R. v. Jayson [2003] 1 Cr App R 13, CA, and it was held that where a person opens an attachment to an email that contains an indecent photograph or pseudo-photograph of a child, he may be said to “make” that photograph within s.1(1)(a), and he will be guilty of an offence contrary to that provision if it is established that when he opened the attachment he did so intentionally and with knowledge that what he was making was, or was likely to be an indecent image of a child. 

The mere act of downloading a photograph or pseudo-photograph from the Internet to a computer screen could also be said to constitute the “making” of a photo- graph, and that a person who did such an act intentionally and knowing that the image was, or was likely to be an indecent image of a child, would be guilty of an offence under s.1(1)(a). 

That in neither case was it necessary to prove that the individual did any act with a view to saving the image on his computer. 

Smith and Jayson was considered in the case of R. v. Harrison [2008] 1 Cr App R 29, CA. It was held that, where the appellant had accessed legal pornographic websites in which indecent photographs of children had appeared by way of an automatic “pop-up” mechanism, it was the appellant and not the web-designer who was the maker of the image. As to mens rea, the jury had to be sure that the appellant knew about the “pop-up” activity when he accessed the adult pornographic sites and that, in accessing those sites, there was a likelihood that the “pop-ups” would include illegal images. Upon conviction on indictment, the maximum sentence is one of 10 years imprisonment. 

The law in this area really is Draconian and works against defendants at every turn. Considering the 1978 Act affords limited defences, the one thing that has assisted in recent times is that the prosecution rarely instruct qualified experts to examine the electrical devices in question.

The “experts” they instruct are often police officers with very basic training in EnCase imaging, or other similar software. A copy of the device is made and the total images noted. They are often unable to comment upon whether or not there are duplications of any of the images, if the file or folder was live, recently deleted or recovered. Live files are not always accessible and therefore a user may not even be aware of their existence but the images may be included within the overall number. It is also important to note that evidence of searches does not automatically mean the defendant entered the search term. Moreover, recovered files may have been stored at any time by any user. It is essential to consider where the computer was found, whether in a shared room or bedroom, whether or not the computer had a password or if there were multiple users. This sounds obvious but is often overlooked by prosecution experts. 

Compounding the situation is the apparent lack of experience of the officers tasked with grading the images. The new categorisation ranges from A to C. Officers are not always familiar with this and so the grading may be inaccurate. A defence expert will be able to check the categorisation and confirm the accuracy of the same. It is therefore extremely important to instruct a defence expert in cases where your clients are facing charges under the 1978 Act. 

Gabrielle Moore © 2016

Barrister 

33 Bedford Row

NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.