The Classification of Indecent Images of Children (IIOC)
Classifying IIOC for both Mobile Phone Forensics and Computer Forensics is a daily activity when it comes to Digital Forensics.
This article was written >5 years ago, therefore; full updated CPS guidance is presented below.
There are two statutory provisions which outline the offences a person will commit should they possess indecent images. The first is section 1 of the Protection of Children Act 1978 and the second is section 160 of the Criminal Justice Act 1988.
Section 1(1) of the Protection of Children Act 1978 states that:
It is an offence for a person
• To take or to permit to be taken, or to make any indecent photographs or pseudo-photographs of a child.
A person is considered to be a child if they are less than 18 years of age (s45 (1) of the Sexual Offences Act 2003).
• To distribute or show such indecent photographs or pseudo-photographs
• To have in his possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by himself or others
• 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.
Section 1 (4) of the Protection of Children Act 1978 states that:
Where a person is charged with an offence under this subsection it shall be a defence for him/her to prove
• That he/she had a legitimate reason for distributing or showing the photographs or pseudo photographs or having them in his or her possession
This defence is restricted more so than it would initially appear, it covers such persons as Police, forensic investigators, legal professionals and expert witnesses etc. rather than defendants/members of the public at large. The aim is to protect those who must retrieve/analyse evidence and forward them onto others from prosecution in the performance of duty, rather than be used as a shield by defendants suspected of making/possessing indecent images.
• That he/she had not himself seen the photographs or pseudo photographs and did not know, nor had any cause to suspect them to be indecent.
Section 160 of the Criminal Justice Act 1988 states that:
It is an offence for a person
• To have any indecent photograph or pseudo photograph of a child in his or her possession
Possession of indecent images when discussing this offence extends beyond having a physical copy (i.e. a photograph), it is important to extend the definition of possession to cover images on a computer hard-drive (for example) as this is how large amounts of indecent images are now stored and transmitted from user to user. To have possession of an indecent image a defendant must have the ability to access it and be aware of its existence as will be discussed under ‘defences’ below.
Anyone charged with an offence under s160 (1) will have a defence provided they can prove
• That the subject of the image in question was over 16 years of age and married to the accused
• That they had a legitimate reason for having the photograph in his or her possession
As with Section 1 of the Protection of Children Act 1978 defence concerning legitimate reasons for possession of indecent images this defence is restricted in its application to those involved in the legal process.
• That they had not seen the photograph and did not know or have any cause to suspect it to be indecent
• That the photograph was sent to the defendant without any prior request made by them or by a third party and that he did not keep it for an unreasonable amount of time.
It would be desirable to prosecute under section 1 of the Protection of Children Act 1978 as this involves some element of ‘making’ indecent images of children and therefore a more serious offence (with heavier punishments) than ‘mere’ possession.
Clearly, being involved in the production/distribution of indecent images involving children is a serious offence (this is reflected in the sentencing with the maximum custodial sentence for possession of indecent images being five years and the maximum for making/distributing the same photos being up to ten years), however when discussing indecent images in this electronic age it is important to note that ‘making’ an indecent image does not necessarily have the same meaning it would have previously.
Whenever there is a digital transfer of an image, the original file containing the image remains on the host device (PC, Mobile telephone, tablet etc.) and its contents are duplicated into a new file on the target device. Therefore if an indecent image is found on a device the user will be guilty of ‘making’ the (duplicated) image provided there is some evidence directing investigators to the time of its creation on said device. If no evidence in this regard is retrievable then provided the image is in fact indecent, a ‘mere’ possession charge under section 160 of the Criminal Justice Act 1998 will be preferred as without some positive evidence of ‘making’ an indecent image guilt under section 1 of the Protection of Children Act 1978 cannot be established.
It is possible for an image to be present on a hard-drive without being purposefully ‘downloaded’ by the user (a copy can automatically be stored in a ‘cache’ for faster accessing of previously visited websites), and of great importance is that deleted data can be still be considered present on a hard-drive, provided it remains in what are known as ‘unallocated clusters’.
To assist with classification, indecent images can be “graded” on a three-point scale, on 1 April 2014 the Sentencing Council issued revised guidelines for all sexual offences including those concerning indecent images of children. They simplified the images into three categories of seriousness:
Category A – Images involving penetrative sexual activity, sexual activity with an animal or sadism.
Category B – Images involving non-penetrative sexual activity.
Category C – Indecent images not falling within categories A or B.
Full CPS Guidance on Indecent Images of Children
This guidance is designed to provide comprehensive assistance to prosecutors when considering offences involving indecent images of children. It should be applied when (1) considering whether to charge a suspect, (2) when drafting an indictment and (3) when presenting the case in the Magistrates’ or Crown Court.
This guidance also explains how the Child Abuse Image Database (CAID) operates. The database increases the speed at which devices can be analysed, enables a ‘trusted grade’ to be applied to the images found and, in many cases, means the CPS and sentencing Judge will not need to view those images.
The use of CAID also enables prosecutors and the police to take a proportionate and streamlined approach to prosecutions in appropriate cases. This guidance explains that approach, when it should be taken and how it operates. This is an essential aspect of our management of such cases given the increasing prevalence of this type of offending and the high volume of such offences being dealt with in the Criminal Justice System.
Note: Whilst the term “images” is increasingly used for offences in this category, including in these guidelines, prosecutors should remember that the offences relate to indecent photographs or pseudo-photographs of children. The word “image” should not be used in the formal process of the prosecution, such as in the indictment.
The guidance has been written with the layout:
- The Law
- Common Elements
- Photographs or Pseudo-photographs
- A child
- Section 1 Protection of Children Act 1978
- Section 160 Criminal Justice Act 1988
- Which Offence Should be Charged
- Statutory Defences
- Legitimate Reason
- “Lack of Awareness”
- Unsolicited Photographs
- Marriage and Other Relationships
- Criminal Proceedings and Investigations
- Indecent Tracings
- Offences by Corporations
- Issues of Jurisdiction
- Other Forms of Image and Activity
- Possession of a Paedophile Manual
- Common Elements
- The Child Abuse Image Database (CAID)
- Streamlined Approach for Low Risk Offenders
- When to Use this Approach
- The Proportionate Assessment
- Any Remaining Images
- Viewing the Images
- Where the Streamlined Process Does Not Apply
- The Indictment
- The Standard Form and Starting Point
- Using Multiple Incident Counts
- Further Refinement
- Opening a Streamlined Approach to the Court
- Sentencing Guidelines and Categories of Offence
- Notification and Disqualification
- Sexual Harm Prevention Orders
- Deprivation and Forfeiture
- Anonymity and Reporting Restrictions
- CPS Case Allocation
- Use of Police Caution
- Consent to Prosecute
- Disclosure to Defence
- Handling of Exhibits
In R v Land  1 Cr. App. R. 301, the Court of Appeal described the legislation in this area as follows:
“[Its] object is to protect children from exploitation and degradation. 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. It is the demand for such material which leads to the exploitation of children and the purposes of the [legislation] is to reduce, indeed as far as possible to eliminate, trade in or possession of it. At the same time statutory defences provide a framework protecting from conviction those whose possession of such material is not prurient”.
The two main offence creating provisions are:
- Section 1 of the Protection of Children Act 1978 (PCA 1978); and
- Section 160 of the Criminal Justice Act 1988 (CJA 1988)
These offences require the consent of the DPP before proceedings can be instituted – see “Consent to Prosecute” in the Miscellaneous section.
Both provisions create offences in respect of:
- photographs or pseudo-photographs of
- a child.
- This is an issue for the tribunal of fact to decide in accordance with recognised standards of propriety (R v Stamford  56 Cr. App. R. 398).
- Whilst members of a jury are representative of the public, it remains essential for them to consider the issue of indecency by reference to an objective test, rather than applying their wholly subjective views of the matter (R v Neal  EWCA Crim 461).
- The issue is not to be decided by pre-conceived categorisation of images into various levels which is only useful for sentencing purposes upon a conviction (R v Miles  2 Cr. App. R. 22).
- The age of the child is a relevant consideration (R v Owen 86 Cr. App. R. 291).
- The circumstances in which the photograph came to be taken and motive of the taker are not relevant; it is not the defendant’s conduct which must be indecent but the photograph of the child which results from it (R v Graham-Kerr 88 Cr App R 302; R v Smethurst  1 Cr. App. R. 6).
2. Photographs and Pseudo-photographs
- A indecent photograph includes an indecent film, a copy of an indecent photograph or film and an indecent photograph comprised in a film (s.7(2) PCA); a film includes any form of video-recording (s.7(5) of the PCA).
- A photograph includes the negative version of a photograph and electronically stored data which is capable of conversion into a photograph (s.7(4) PCA).
- A photograph also includes a “tracing” (s.7(4A) of the PCA) – see “Indecent Tracings” later in this section.
- A pseudo-photograph means an image, whether made by computer graphics or in any other way, which appears to be a photograph (s.7(7) of the PCA); references to an indecent pseudo-photograph include a copy of an indecent pseudo-photograph and electronically stored data which is capable of conversion into a pseudo-photograph (s.7(9) of the PCA).
- Section 7(3) of the PCA 1978 provides that photographs or pseudo-photographs “shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children”. This would, for example, prohibit a photograph of an indecent act being carried on by adults in which a child appeared although the child him/herself was not photographed in an indecent manner (see: Owen 86 Cr. App. R. 291).
- Note: Section 7 PCA 1978 applies to offences under section 160 CJA 1988 (s.160(4) of the CJA).
- A child is a person under 18 (s.7(6) of the PCA).
- A person is taken to have 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” (s.2(3) of the PCA; s.160(4) of the CJA).
- The age of a child is a finding of fact for the jury to determine. Expert evidence is inadmissible on the subject as it is not a subject requiring the assistance of experts (R v Land  1 Cr. App. R. 301).
- If the “impression conveyed by a pseudo-photograph is that the person shown is a child” then it shall be treated for the purpose of the offence as showing a child. This is so where the predominant impression is to this effect notwithstanding some of the characteristics shown are those of an adult (s.7(8) of the PCA).
Various forms of conduct in respect of indecent photographs or pseudo-photographs of children are prohibited in the four sub-paragraphs of section 1(1) of the PCA 1978. The mental element varies as between them. The offence is an either way offence punishable on indictment with up to ten years imprisonment.
The prohibited conduct is:
- To take or permit to be taken or make any such photograph.
- These words must be given their natural and ordinary meaning.
- The word “make” was added in 1995 to cure the mischief of the reproduction of indecent material on the internet. It means “to cause to exist, to produce by action, to bring about” (R v Bowden  1 Cr. App. R. 438).
- Therefore, downloading an image onto a disc or printing it out from a computer involves the “making” of a photograph (Bowden). However, the word “make” has been widely interpreted by the Courts. An intention on the part of the maker to store and / or be able to retrieve the photograph in question is not required. Therefore “making” also includes:
- Opening an attachment to an email containing an image (R v Smith  1 Cr. App. R. 13);
- Downloading an image from a website onto a computer screen (R v Jayson  1 Cr. App. R. 13);
- Storing an image in a directory on a computer (Atkins v DPP; Goodland v DPP  2 Cr. App. R. 248); and
- Accessing a website in which images appeared by way of automatic “pop-up” mechanism (R v Harrison  1 Cr. App. R. 29).
- These authorities make the mental element for conduct under this sub-paragraph clear. The act of making or taking the indecent photograph or pseudo-photograph must be a deliberate and intentional act, done with the knowledge that the image made is, or is likely to be, an indecent photograph or pseudo-photograph of a child. So, for example, in a “pop-up” case, it would have be to be proved that suspect knew that accessing a website would generate “pop-ups” and that those “pop-ups” would depict, or be likely to depict, indecent images of children (Harrison).
- Likewise for permitting an indecent photograph of child to be taken, it must be proved that the defendant knew that such a photograph was being taken.
- Distribute or show any such photograph.
- A person is to be regarded as distributing indecent photographs or pseudo-photographs if he parts with possession of it to, or exposes or offers it for acquisition by, another person (s.1(2) of the PCA 1978).
The placing of an order in response to an advertisement offering the supply indecent photographs of children did amount to incitement to distribute such images under common law despite the willingness of those making the offer to supply them (R v Goldman EWCA Crim 1684). This was so even if the order was processed automatically by means of a computer for such computers merely facilitated the operation of a business by human beings (R (on the application of O’Shea) v Coventry Magistrates Court  EWHC 905 Admin). The same would apply now for offences under sections 44 and 45 of the Serious Crime Act 2007.
- In R v Price  EWCA Crim 3363 the Court of Appeal was “quite satisfied” that it was Parliament’s intention to create offences of strict liability under this sub-paragraph subject to the statutory defence under section 1(4)(b) of the PCA 1978 (which applies to s.1(1)(b) and (c) only – see “Statutory Defences” later in this section). If the prosecution were required to prove knowledge on the part of the defendant then it would leave no room for that defence. All that need be proved is that the defendant did in fact distribute or show indecent photographs of children.
- Have in his possession any such photograph with a view to it being distributed or shown by himself or others.
- “Possession” involves both a physical and mental element. The physical element is that a person must have custody and control of the photographs in question. The mental element is knowledge – a defendant must knowingly have custody and control of the photographs. See section on possession under section 160 of the CJA 1988 for more detail.
- It is not necessary for the prosecution to prove that the defendant knew photographs in his / her possession were indecent photographs of a child. Otherwise, the statutory defence under section 1(4)(b) PCA 1978 would never come into play (see: R v Collier 1 Cr. App. R. 9 and section on Statutory Defences).
- The words “with a view to” involve an additional mental element equating to intention. In R v Dooley  1 Cr. App. R. 21 a member of a peer-to-peer file sharing network downloaded images from the network and then placed them in a folder on his computer from which they could be accessed by other members. Mere knowledge that others could or were likely to see them was not enough. He was only guilty if at least one of the reasons for him placing them there was for that purpose.
- The anticipated showing must to be to a person(s) beyond the possessor of the photographs (R v T 163 JP 349).
- A person who stores indecent photographs on his computer and enables others to view them via the internet by the provision of a password does possess them with a view to them being shown (R v Fellows and Arnold  1 Cr. App. R. 244).
- Publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows any such photographs or intends to do so.
- The statutory defence under section 1(4)(b) of the PCA 1978 does not apply. Therefore, by analogy with section 1(1)(a), it must be proved that the defendant published the advertisement intentionally and knowingly.
Section 160(1) creates an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession. The offence is an either way offence punishable on indictment with up to ten years imprisonment.
“Possession” involves both a physical and mental element.
The physical element is that a person must have custody and control of the photographs stored on a device in order to possess them. This means he / she must be capable of, or in a position to, retrieve them in the sense, for example, of being able to produce them on the screen, make a copy of them or send them to someone else (R v Porter  1 Cr. App. R. 25; R v Leonard  2 Cr. App. R. 12). This is of particular relevance in the case of deleted images. Proof of the physical element in such cases will depend on consideration of (a) where the photographs are stored on the device (b) the means by which they could be retrieved in the sense set out above and (c) whether the defendant has the wherewithal to retrieve them i.e. has the technical knowledge and software / other equipment required to do so.
The mental element is knowledge. A defendant must knowingly have custody and control of the photographs found on the device in question.
In R v Matrix  EWCA Crim 2058 analogies were drawn with decisions under drugs legislation. A sales assistant in a video shop, who knew that the stock included sexually explicit material but not that it depicted children, was held to have sufficient knowledge of the videos to be in possession of them. The Court said that possession is a matter of fact and degree for a jury. A person does not have possession of items which have been “planted” but a mere mistake as to the quality of a thing which a person knows is under his / her control is not enough to prevent that person being in possession of it.
On the other hand a person is not in possession of photographs which were automatically “cached” on a computer’s memory after accessing a website unless he / she knew of the existence of such caches (Atkins v DPP; Goodland v DPP  2 Cr. App. R. 248). This situation might be compared to the “planting” example given in Matrix.
It is not necessary for the prosecution to prove that the defendant knew photographs in his / her possession were indecent photographs of a child. If that were the position, the statutory defence under section 160(2)(b) of the CJA 1988 would never come into play (see: R v Collier 1 Cr. App. R. 9 and section on Statutory Defences).
When indecent images of children are found on a suspect’s electronic device, careful consideration is required to decide whether the appropriate charge is one of “making” under section 1 of the PCA 1978 or possession under section 160 of the CJA 1988. Such a determination will be case specific but certain themes emerge which may be of assistance.
Prosecutors must bear in mind what needs to be proved in respect of possession of the images. Much will depend on (a) the location of the images on the device (b) how they came to be located there and (c) how accessible/viewable they are in that location without specialist knowledge or software. By way of example:
- A person who views an image on a device which is then automatically cached onto its memory would not be in possession of that image unless it can be proved that he / she knew of the cache.
- A person who downloads an image from the internet and then deletes it such that it is ultimately recovered in the unallocated space or clusters will not be in possession of that image unless it can be proved that he / she has the wherewithal to retrieve it.
In each example, however, the person would also have “made” the image in question. Subject to there being evidence of the act which constituted the making and the necessary mental element, an offence contrary to section 1 of the PCA 1978 is preferable and in most cases would suffice. As a result, the use of section 160 of the CJA 1988 is becoming increasingly rare. It is better reserved to cases where the evidence is unambiguous in showing genuine possession, for example, where a suspect has the images in printed form or has saved them into a clearly labelled file within the hard drive of the device. The charge of ‘making’ also has the advantage of being widely interpreted to cover such activities as opening attachments to emails and downloading or simply viewing images on the internet. By contrast, the same conduct often cannot lead to a possession charge.
Where the decision is being made on the basis of technical evidence, prosecutors are encouraged to ask their OIC or HTCU witness for clarification.
Prosecutors are also reminded to bear in mind the following:
- The sentencing guidelines and the differences in maximum available sentences (ten and five years’ imprisonment respectively).
- The availability of defences – see Statutory Defence section below.
There are five statutory defences.
- Three apply in broadly similar terms to some forms of prohibited conduct under section 1 of the PCA 1978 and to possession under section 160 of the CJA 1988.
- One applies to offences under section 160 of the CJA 1988 only.
- One applies to offences of making under section 1(1)(a) of the PCA 1978 only.
This defence applies to the following:
- Conduct prohibited by section 1(1)(b) and 1(1)(c) of the PCA 1978 i.e. distributing or showing and possessing with a view to distribution or showing to others (s.1(4)(a) of the PCA 1978); and
- Possession under section 160 of the CJA 1988 (s.160(2)(a) of the CJA 1988).
The defence is made out if the defendant proves that he had a legitimate reason for the conduct in question. This is a legal rather than an evidential burden (R v Collier  1 Cr. App. R. 9).
“Legitimate reason” is not defined in either Act. In Atkins v DPP; Goodland v DPP  2 Cr. App. R. 248 it was held that it is a pure question of fact in each case. In cases where it was maintained that the conduct was part of legitimate research, the central question will be whether the defendant was essentially a person with an unhealthy interest in indecent images acting under the pretence of undertaking research or, on the other hand, was a genuine researcher who had no alternative but to have such unpleasant material in his possession. The judgment continued to say that the courts “are plainly entitled to bring a measure of scepticism to bear upon such an enquiry; they should not too readily accept that the defence is made out”.
“Lack of Awareness”
This defence applies to the following conduct:
- That prohibited by section 1(1)(b) and 1(1)(c) of the PCA 1978 i.e. distributing or showing and possessing with a view to distribution or showing to others (s.1(4)(b) of the PCA 1978); and
- Possession under section 160 of the CJA 1988 (s.160(2)(b) of the CJA 1988).
The defence is made out if the defendant proves that he had not himself seen the photographs in question and did not know nor have any cause to suspect them to be indecent. This is a legal burden (R v Collier  1 Cr. App. R. 9).
The defence applies if an absence of knowledge and a cause to suspect is proved in respect of either the indecency of a photograph or the fact its subject matter is a child (Collier). This is perhaps not as the defence would be read literally. In Collier the defendant knew he was in possession of a CD containing indecent material featuring adults. He did not know nor had cause to suspect that there were “trailers” at the end of the CD advertising other products which included indecent images of children. The Court of Appeal held that his lack of awareness in respect of the inclusion of children on the CD enabled him to rely on the statutory defence despite the fact he knew due it was indecent.
The availability of the statutory defence affects what the prosecution must prove in terms of mental element. Offences contrary to section 1(1)(b) of the PCA 1978 are of strict liability; those contrary to section 1(1)(c) of the PCA 1978 and section 160 of the CJA 1988, require proof only of the mental element required for possession and, in the case of the former, the intention consequent on the words “with a view to”. Otherwise, if the prosecution did have to prove knowledge that the conduct in question related to indecent photographs of children, then the statutory defence would never come into play (see also the commentary on individual offences above). The prosecution therefore has a more onerous burden of proof for offences to which this statutory defence does not apply (as was observed in Collier).
This defence applies to possession under section 160 of the CJA 1988 only (s.160(2)(c) of the CJA 1988).
The defence is made out if the defendant proves that the photograph in question was sent to him without any prior request by him or on his behalf and that he did not keep it for an unreasonable time. By analogy, the burden is a legal one (R v Collier  1 Cr. App. R. 9).
The Act does not prescribe what constitutes a ‘prior request’ nor does it define the parameters of ‘unreasonable time’. In particular, it is not clear whether time runs from when the image was received by the computer, or when it was known by a defendant to have been received. Consistent with the necessary mental element, the latter is likely. The issue of reasonableness is a matter for the jury to decide on the facts of any particular case.
Marriage and Other Relationships
This defence applies to the following conduct in respect of indecent photographs / pseudo-photographs of children:
- Taking and making under section 1(1)(a) of the PCA 1978;
- Distributing and showing under section 1(1)(b) of the PCA 1978;
- Possession with a view to distribution or showing to others under section 1(1)(c) of the PCA 1978 (s.1A of the PCA 1978);
- Possession under section 160 of the CJA 1988 (s.160A of the CJA 1988).
The terms of the defence vary for each of the above but its common core requirements are:
- The defendant has to prove that (a) the photograph was of a child aged 16 or 17 and (b) at the time of the conduct in question he and the child were married or civil partners or lived together in an “enduring family relationship”. This is a legal burden.
- The photograph showed the child alone or with the defendant but nobody else.
If the above applies then the defence is made out for conduct under section 1(1)(b) of the PCA 1978 unless the prosecution proves that the showing or distribution was to a person other than the child.
For the other three forms of conduct to which the defence may apply, there is an additional requirement that sufficient evidence is adduced to raise an issue (i.e. for the defendant to satisfy an evidential burden) as to:
- Whether the child consented to the defendant’s making, taking or possession (as the case may be) of the photograph or whether the defendant reasonably believed she consented;
- Additionally, in the case of section 1(1)(c) only, whether the defendant possessed the photograph with a view to it being distributed or shown to anyone other than the child.
In these situations the defendant will be not guilty unless the prosecution proves (to the criminal standard of proof) those matters on which the defendant has raised an issue i.e. that the child did not consent and the defendant did not reasonably believe that he / she did and, in the case of section 1(1)(c), that the intended audience was to extend beyond the child him/herself.
The provisions are complex, not least because they involve a mix of legal and evidential burdens. Careful directions to the jury will be required.
The defendant may rely on evidence adduced by the prosecution to satisfy the evidential burden. It might, for example, be discharged by inviting to jury to draw an inference from the child’s demeanour in the photograph itself.
In R v M  EWCA Crim 2752 the defendant had a “one-night stand” with a 17 year old. They engaged in consensual sexual activity after which he took photographs of her naked, resulting in two charges of making an indecent photograph of a child. His defence was that he reasonably believed she was over 18 and had consented to the photographs. It was argued that it was irrational that a girl aged 17 years should be capable of consenting to sexual relations but incompetent to consenting to such acts being photographed unless in a marriage, civil partnership or enduring family relationship. This amounted to a breach of Articles 8(2) and 10(2) of the ECHR and the statutory defence should be read to include “one night stands”. These arguments were rejected. The Court held that the need to protect children from sexual exploitation was a “pressing social need”. Whilst the defendant could engage in sexual activity with a 17 year old girl, he had no right to make her the subject of “pornography” [as the Court stated]. The United Nations Convention of the Rights of the Child and the EU Framework Decision 2004/68/JHA prescribed fundamental rights for children and the provisions of the PCA 1978 were no more than necessary to accomplish the objectives of these international obligations.
Criminal Proceedings and Investigations
This defence applies only to making an indecent photograph or pseudo-photograph of a child under section 1(1)(a) of the PCA 1978 (section 1B of the PCA 1978, added by section 46 of the Sexual Offences Act 2003).
The defence is available where a person “making” an indecent photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. This defence will also apply to defence solicitors, counsel, police officers, prosecutors, Judges and others who have to deal with indecent images of children in the course of their work etc.
The CPS and the then Association of Chief Police Officers (ACPO), now the National Police Chief’s Council (NPCC), signed a Memorandum of Understanding in 2004 which provides guidance to those who have a legitimate need to handle indecent images of children by setting out how the defence provided in section 1B of the PCA 1978 may be applied. The Memorandum provides guidance to the Police Service, CPS and others involved in the internet industry, in order to create the right balance between protecting children and effective investigation and prosecution of offences.
Section 69 of the Criminal Justice and Immigration Act 2008 extends the remit of the indecent photographs legislation (both section 1 of the PCA 1978 and section 160 of the CJA 1988) by amending the meaning of photograph within section 7 of the PCA 1978 to include a “tracing or other image”. The amendment came into force on the 8 July 2008.
What Are Tracings?
An indecent tracing is where the offender (or some other person) traces the outline of a photograph either manually onto tracing paper or with the assistance of computer software and then colours in and / or gives other effect to the tracing before destroying the original photograph.
It must be proved that the image is derived (either in whole or in part) from a photograph or pseudo-photograph (s.7(4A)(b)(ii)). The police will have to gather sufficient evidence from evidence recovered at the scene and/or use computer facial recognition packages to identify whether an image is derived from a known photograph. It is important there is evidence that it is a tracing and not, for example, a freehand drawing which would be outside of the scope of this provision.
The advancement of technology means that tracings are not restricted to the old-fashioned technique with tracing paper. A scanner and appropriate software can ‘trace’ a photograph and digitally produce the results. This can then be coloured in or manipulated in the same way as a photograph.
Some mobile telephones have effects built into them so that, when a photograph is taken, it automatically produces a tracing rather than a full photograph. If the phone is seized with the image it produced, it could legitimately be said to be a photograph (because it could be shown to have been taken on a camera) and charged as an offence contrary to section 1(1)(a) of the PCA 1978 (or section 160 of the CJA 1988). However, if the image was sent to someone else or printed out it might be technically difficult to prove that this was a photograph.
The reference in section 7(4A)(a) of the PCA 1978 to a tracing “or other image” is designed to cover electronic conversions. Most basic scanner or graphic manipulation packages can turn photographs into different types of ‘art’ including cartoons, paintings, drawings, etc. All are, of course, simply effects, often produced by taking the principal features or blurring lines, etc. However the same limitations as discussed above would occur.
Where a person possesses an image not knowing that it is a tracing, for example: D downloads what he thinks is a hand-drawn picture from the Internet (and accordingly legal) but in fact it is (unbeknown to him) a tracing. He is probably not guilty of possession under section 160 of the CJA 1988 as the courts will interpret section 160(2)(b) to provide a defence. Certainly the wording of section 160(2)(b) when read in conjunction with PCA 1978 could entitle the courts to argue that the defence exists where a person does not know, nor has any cause to believe, that he is in possession of an indecent photograph, pseudo-photograph or tracing of a child. Whilst it would be ordinarily difficult to argue that someone would not know they were in possession of a photograph or pseudo-photograph the same cannot be said of tracings.
The introduction of section 7(4A) of the PCA 1978 means that, where the police identify tracings, they can now use their revised powers of forfeiture under section 5 of the PCA 1978 as amended by section 39 of the Police and Justice Act 2006) – see “Deprivation and Forfeiture” in the Sentence section.
Section 3 of the PCA 1978 provides that, where a body corporate is guilty of any offence under the PCA 1978, then so will any director, manager, secretary of other officer of that body or anyone purporting to act in any such capacity if the offence occurred with the consent or connivance of or was attributable to any neglect on any such person’s part.
The general rule used to be that English and Welsh courts did not accept jurisdiction over offences committed outside England and Wales (see the legal guidance on Jurisdiction). That general rule is now subject to a number of statutory exceptions, as the UK has extended its jurisdiction to become extra-territorial for specified offences, and has made special provision for the determination of where the actus reus of the offence took place.
The starting points for jurisdictional matters are the provisions of the Sexual Offences (Conspiracy and Incitement) Act 1996 and section 72 of the Sexual Offences Act 2003 (SOA 2003) in force from 1 May 2004. Section 72 of the SOA 2003 confers extra-territorial jurisdiction on the courts of England and Wales in respect of offences contrary to the PCA 1978 and section 160 of the CJA 1988.
Where images originating on foreign websites are downloaded for viewing in the United Kingdom, the act of making is within the jurisdiction of the United Kingdom. In the case of R v Waddon 6 April 2000 Court of Appeal the court held that the content of American websites could come under British jurisdiction when downloaded in the United Kingdom. See also R v Perrin  4 Archbold News 2, CA which is specifically concerned with ‘publishing’ electronic data under the Obscene Publications Act 1959.
Prosecutors should be aware that it is not necessarily a criminal offence in the United States of America to make, distribute, or possess indecent pseudo-photographs of children.
An attempt to commit a crime is triable in England provided the completed offence would have been triable here if the attempt had succeeded: DPP v Stonehouse  A C 55. A conspiracy to do something in England and Wales, even if no overt act pursuant to the conspiracy is done here, is justiciable: Liangsiriprasert v Government of the United States  AC 225. Inciting someone outside of the jurisdiction to distribute indecent images of children within the jurisdiction of the courts in England and Wales was held to be triable in the United Kingdom because the incitement takes place in this country. The case of R (on behalf of O’Shea) v Coventry Magistrates’ Court  EWHC Admin 905 is a useful example of this principle. The same would not apply to offences under sections 44 and 45 of the Serious Crime Act 2007.
Cases relying on the extension of jurisdiction will of necessity involve close CPS – police liaison from an early stage in the investigation.
The PCA 1978 and section 160 of the CJA 1988 apply to indecent photographs and pseudo-photographs of children.
- Sections 62 to 68 of the Coroners and Justice Act 2009 govern the offence of possession of prohibited images of children. Section 65(3) provides that “image” for the purpose of this offence does not include an indecent photograph or pseudo-photograph of a child. Therefore, offences in relation to such photographs must be prosecuted under section 1 PCA 1978 and / or section 160 CJA 1988. Sometimes, such as in the case of high quality computer generated images, it might be difficult to decide if the image is a pseudo-photograph or prohibited image under the 2009 Act. It is suggested that if an image, when printed, would look like a photograph or pseudo-photograph then it should be prosecuted as such. See the guidance on Prohibited Images of Children.
- The primary area of law for indecent sound and text-based stories is the Obscene Publication Act 1959. See the guidance on Obscene Publications.
- Offences relating to associated actual conduct with children are contained in sections 10, 11 and 48 – 50 of the Sexual Offences Act 2003. There are other offences where the internet may be the vehicle of communication under the 2003 Act, such as arranging or facilitating the commission of a child sex offence (section 14) and the “grooming” offence (section 15). See the relevant sections of the Rape and Sexual Offences guidance.
Section 69 of the Serious Crime Act 2015 created the offence of being “in possession of any item that contains advice or guidance about abusing children sexually”. This is known as a paedophile manual. The term “abusing children sexually” is specifically defined in subsection (8)(b) as including relating to an offence under section 1 of the PCA 1978 involving indecent photographs (but not pseudo-photographs) of children. So if a defendant has material containing advice or guidance about how to make indecent photographs of children they will also be committing an offence under s.69 of the SCA 2015. [Note that offences under s.160 of the CJA 1988 relating to possessing (as opposed to making) indecent images are outside scope of this offence.]
Section 69 came into force on 3 May 2015.
It is an either way offence which carries a maximum sentence of 3 years imprisonment.
This offence requires the consent of the DPP before proceedings can be instituted – see “Consent to Prosecute” in the Miscellaneous section.
The Child Abuse Image Database (CAID) has been created to assist the police with (1) the cataloguing and grading of Indecent Images of Children (“IIOC”) and (2) victim identification.
It is a secure database of illegal images of children and holds records of child abuse images known to UK law enforcement. It has been compiled from IIOC seized worldwide, including the UK. It uses software to review the files on any device which has been seized and then compare them against known data such as keywords or meta-data.
CAID processes images using ‘hash tag’ values in the image metadata. Once the image has been separately graded by three police forces it will be stored by CAID as an approved ‘trusted’ grade. This means that there will not be a need for anybody (officer, prosecutor or judge) to view the same image again when it comes up in future investigations, as the CAID grading can be adopted.
Using CAID reduces the need for officers or prosecutors to view large numbers of images, saving time and avoiding unnecessary distress.
Having compared the images on the suspect’s device(s) with those stored on CAID investigators should provide prosecutors with a Streamlined Forensic Report (SFR1) which gives the total number of CAID recognised images in each category.
Officers will also be expected to select three representative image examples from each category and include a sufficiently-detailed description of each in the SFR1. These descriptions should include any factor relevant to sentence, for example: (1) the apparent age of the victim, (2) whether there is discernible pain or suffering, and (3) whether the child appears intoxicated or drugged. Where possible the image reference number should be included to allow for any cross-referencing, or to view the selected image should there be any point taken by the defence about the officer’s descriptions.
When serving the SFR1, prosecutors should draw the defence and court’s attention to Rule 19.3 of the Criminal Procedure Rules which provide a procedure for the service of a summary of an expert’s conclusions (such as an SFR1) with a view to agreement under section 10 of the Criminal Justice Act 1967.
Part 3 of the Rules imposes obligations on the defence to assist the court in identifying the real issues and in presenting evidence in the shortest and clearest way. This obligation is significantly enhanced by Rule 19.3 which provides that the party on whom the summary is served must serve a response stating which, if any, of the expert’s conclusions are admitted as fact and where a conclusion is not admitted, what are the disputed issues concerning that conclusion. The response must be served on the party who served the summary and on the court as soon as practicable, and in any event not more than 14 days after service of the summary. The SFR1 template should also make reference to this rule.
There may be images which have not been recognised by CAID but which may nevertheless be IIOC. These images will need to be viewed separately by the police who will provide a summary of them. Such images will be added to the database and begin the process of acquiring their ‘trusted grade’. Officers will be considering each image to determine whether it reveals any contact offence, or whether the suspect is close to the creation of the image (see Streamlined Approach to Low Risk Offenders below). If prosecutors are being asked to charge a suspect with images which are ‘new’ to the police (and therefore not on CAID) it may in some limited circumstances be necessary to view the images to ensure the correct charges. Prosecutors should exercise their judgement as to whether the summary prepared by the police suffices.
In certain circumstances a streamlined approach should be used when prosecuting IIOC offences. Such an approach has been devised in order to meet the high volume of suspects being investigated by the police. Where appropriate this approach allows prosecutors to make charging decisions based on the results of the initial CAID analysis. This does not prevent a later decision to bring additional charges (if appropriate). It is designed to achieve an expedited outcome which also meets the interests of justice.
This approach may only be used if the following three factors apply:
- The IIOC suspect is assessed by investigators to pose a low risk in relation to children. This assessment is carried out using KIRAT (Kent Internet Risk Assessment Tool) which assesses risk by ascertaining if a suspect is a ‘viewer’ of images or whether s/he is a person who:
- creates IIOC or poses a risk of doing so;
- poses a risk of committing a contact child sex offence;
- has easy access to children;
- holds a position of trust;
- is in a ‘high risk’ occupation;
- has committed additional criminal conduct in this area.
- The investigation is limited to offences relating to the possession, distribution or production (in the limited sense) of IIOC. The scope of the investigation may be determined by what is found on the initial searches of devices, other evidence obtained or intelligence.
- All relevant digital storage devices have been subject to ‘triage’ by the Child Abuse Image Database (CAID). Triage typically involves using software to review the files on the device and compare them against known data such as key words and hash-set databases in order to determine whether the device holds anything of evidential value and therefore may need full forensic examination. Note that a device which contained only first-generation images of contact abuse may not be identified by the triage process.
If these criteria are met prosecutors should apply a proportionate assessment to the number of images presented to a court in order to deal with these cases justly, efficiently and expeditiously.
This encompasses the following principles:
- Each case should be decided on its own facts.
- Charges should reflect the seriousness and extent of the offence, as well as providing adequate sentencing powers for the court.
- Proportionality means that investigators, having assessed the suspect as ‘low risk’, then compare the time, effort and resources involved in conducting a full forensic analysis of each seized device in order to identify and categorise every indecent image against the effect this would have on the likely final sentence. This does not mean that prosecutors must charge a minimum proportion of the total number of images or require the investigators to examine a minimum proportion.
- A consideration of proportionality is not intended to curtail an investigation into other offences or the examination of images in order to identify victims. The identification of children at risk remains of paramount importance, but need not delay a charging decision for making or possession of IIOC. The investigators should continue to view images for the purposes of victim identification after a prosecutor has advised that there are sufficient images for the purposes of a making/possession charge.
- The Sentencing Guideline sets the starting points for sentences based on the category of the images. There is less emphasis than under the previous guidelines on sentencing by reference to the number of images alone. A ‘high volume of images’ is now only one of 18 aggravating factors.
- What constitutes a ‘high volume’ is not defined. However, in general, once the number of IIOC reaches a certain threshold then the presentation of additional such images will have limited effect on the final sentence, especially when other aggravating and mitigating factors are taken into account.
- The number of digital images and movies on seized exhibits is constantly increasing due to the proliferation of material on the internet, the increasing range of devices capable of storing material and exponentially increasing storage capacities and download speeds. Neither the Sentencing Guideline nor the case law indicate whether a ‘high volume’ is an absolute standard or is relative to the increasing size of collections generally.
- It is suggested that a ‘high volume’ should be an absolute standard, such that, for example, 250+ Category A images is always a high volume however many images a suspect possesses in total. Applying a relative standard leads to the perverse result that the prevalence of IIOC makes the offences less serious. An absolute standard is also consistent with a proportionate approach to charging as it supports the underlying proposition that, above a certain threshold, the sentence is unlikely to be affected.
Where this streamlined approach applies, prosecutors need not request the examination of further images for the purpose of making a charging decision where the investigators have examined and categorised:
- at least 250 images at Category A or
- where there no Category A offences, a total of at least 1,000 images.
It is hoped that the timescales for technical examinations will be considerably reduced allowing a greater number of offenders to be investigated.
Once the CAID images have been identified, it is important that images at a higher level are not missed. Therefore if a large proportion of images identified at the triage stage are still unexamined (as they did not match known CAID images), it may be proportionate for the investigators to continue searching for Category A images even after the threshold has been reached.
Where additional IIOC are found, these must be graded and included in the schedule to avoid reflecting a disproportionate number of Category A images to the overall totals.
Where some of the devices have not been subject to full forensic analysis prior to interview, but the triage process has indicated the presence of IIOC or evidence of other offences, the defendant should be invited to tell the investigators about what might be found on those devices at the interview stage. If he refuses to make any admissions he should be warned that the remaining devices may be examined at a later date (or may still be in the process of being examined for the purposes of victim identification) and may result in further charges. This mitigates against the possibility of an abuse of process argument on the basis of legitimate expectation if the defendant is later charged with further offences based on evidence obtained from devices that were not fully examined prior to interview.
In many cases the examination of additional (non CAID recognised) images should not delay charging the suspect for making those images recognised by the database. If further images are identified careful thought will need to be given as to whether the suspect should be charged with additional offences or not. Prosecutors are reminded that the number of images found is but one of the aggravating factors on the sentencing guidelines. Unless there are a significant additional number of images found, or the additional images clearly demonstrate additional aggravating factors, prosecutors may decide not to bring additional charges. These ‘new’ images will assist in future cases when they are added to CAID.
As above, it is important that prosecutors are familiar with the nature of the images in a case and have a proper understanding of what comes within each category but it is not mandatory for prosecutors to view the images in all cases in order to prosecute.
In cases involving low-risk offenders it should be unnecessary for prosecutors to view the images. In low-risk cases, the SFR need only describe the selected representative images (see above). As set out above – when images falling outside of the CAID database are the subject of the proposed charge prosecutors may in limited circumstances have to view the images. In most cases the police case summary will suffice. These images may also need to be made available to the judge and defence unless agreement is reached that this is unnecessary.
Where either (1) the defendant is not low risk, or (2) the numbers of images produced by a CAID sift falls below the necessary threshold, prosecutors must revert to the conventional process of charging such cases. The remaining images must be viewed by the police, in order that the full picture of the defendant’s offending emerges before a charging decision is made.
Prosecutors should exercise their judgment as to whether it is necessary to view any non-CAID images. In the majority of cases a full police summary of the results of their analysis may suffice in ensuring that the correct charging decision is made.
Drafting an indictment in cases involving IIOC involves careful consideration of the issues in the case – the selection of appropriate offence, whether to allege multiple incident offences or not and whether to distinguish between particular devices will all be important decisions in framing a focussed indictment. Much will depend on the known issues in the case.
Cases are fact and issue specific. The starting point in every case should be to ascertain what the issue(s) in the case is / are. Where a defendant has chosen not to comment in interview prosecutors should be pro-active in liaising with the defence to establish the issues in the case (in accordance with the principles of Part 3 of the Criminal Procedure Rules and the overriding objective).
In many cases there will be an appropriate uniform approach to the drafting of the indictment. This should be the starting point in every case.
This standard form approach should be taken if any of the following apply:
- The issue in the case has yet to emerge – despite efforts to identify it,
- The defendant has indicated full acceptance of his conduct (either in interview or in correspondence) – and a guilty plea to is anticipated,
- There is a single issue of dispute covering all images (i.e. complete denial of overall conduct, or denial of possessing the offending device).
The images should be grouped together (see below for multiple offence commentary) depending on which of the three sentencing guideline categories apply. The indictment should therefore have a maximum of three counts; one count for category A, one for category B and one for category C.
Prosecutors should use the Streamlined Forensic Report to obtain the total numbers of images in each category, across all devices interrogated. SFRs should provide a table setting out the total numbers of images in each case.
Each count should therefore look like this example:
STATEMENT OF OFFENCE
MAKING INDECENT PHOTOGRAPHS OF CHILDREN contrary to section 1(1)(a) of the Protection of Children Act 1978.
PARTICULARS OF OFFENCE
THE DEFENDANT between the 28th day of October 2014 and the 25 day of April 2016, made 356 indecent photographs of children.
[This count represents the total number of Category A still and moving images found on Exhibits JDW/1, and JDW/2].
The case of R v Thompson (Richard)  2 Cr. App. R. 16 is an authority on how to approach the issue of the indictment. It was, however, decided before the introduction of multiple incident counts in the 2007 Criminal Procedure Rules. The concept of duplicity has now been effectively removed in such cases. It is suggested that the guidance set out in the case is now somewhat out of date.
Instead prosecutors should use the multiple incident provisions (now found in the Criminal Procedure Rules 10.2 – and rule 10.A.10 of the Criminal Practice Directions Division II 2015). These provisions allow for combining the making (or possessing) of images into ‘rolled up’ counts.
This approach removes the need to provide example images of individual images, separately particularised in stand-alone counts. It further removes the need (where there is no issue raised) to draft separate counts for each of the devices found.
It is important to remember the need to specify in a multiple incident count the minimum number of photographs which the prosecution needs to prove – R v A  2 Cr. App. R. (S.) 12.
Where the issues in the case are known they should be reflected in the form of the indictment, to allow a jury to easily understand the issues in the case and for their verdicts to illustrate clearly their evidential conclusions. For example, if a defendant disputes that a proportion of the images were ‘made’ by him, those images can be excised from the existing counts and separately particularised in an additional count. He would be able to enter his guilty pleas to the remaining counts, and (where appropriate) have a jury consider the disputed images count. Similarly if it becomes known that the defendant disputes possession of one of the devices, those images can be separately indicted to focus on the area of dispute.
When dealing with the sentencing hearing in cases involving IIOC prosecutors must be familiar with the most up to date sentencing guidelines.
This guidance also sets out some of the potentially appropriate ancillary orders which should be considered in such cases. Please consult chapter 19 of the Rape and Sexual Offences guidance for a full range of ancillary orders.
See also the relevant section in the legal guidance on Sentencing Dangerous Offenders.
In cases where the proportionate approach has been used it will be appropriate, when opening a case at trial or sentencing, to indicate this fact. This should be included in the OIC’s statement. This should also cover:
- An estimate of the number of potential additional images identified in triage. Unless the defendant has made admissions it will not be possible to prove that these are indecent images of children.
- An explanation of what has not been examined.
- Parameters of the examination of the computer i.e. basis of selection of files and basis of dip checks etc.
- The fact that the defendant has been assessed as ‘low risk’.
Where there is no dispute by the defence, the description in the sample charges and the streamlined forensic report ought to provide sufficient information to enable the judge to pass sentence without the images being provided to the court.
On 1 April 2014 the Sentencing Council issued revised guidelines for all sexual offences including those concerning indecent images of children. They simplified the images into three categories of seriousness:
Category A – Images involving penetrative sexual activity, sexual activity with an animal or sadism.
Category B – Images involving non-penetrative sexual activity.
Category C – Indecent images not falling within categories A or B.
The full guidelines can be found at http://www.sentencingcouncil.org.uk/publications/item/sexual-offences-definitive-guideline/.
Part 2 of the SOA 2003 requires those convicted or cautioned for relevant sex offences, including offences contrary to section 1 of the PCA 1978 and section 160 of the CJA 1988, to notify the police of certain personal details including name, addresses and National Insurance Number. Any change of name or address or of staying away for a qualifying period must be notified to the police within three days. Offenders must also re-notify the police of their details annually. The police keep this information on the Dangerous Persons Database VISOR, in what has become commonly known as the Sex Offenders’ Register.
Notification requirements are automatic upon conviction. The role of the court is to notify the defendant how long he will be subject to the requirements. This is best done on sentence as the period of his disqualification will often be determined by the sentence he receives.
Offences contrary to either s.1 of the Protection of Children Act 1978 or s.160 of the Criminal Justice Act 1988 will result in the defendant being automatically barred from working with children. They do have a statutory right to make representations about their continued barring. The Disclosure and Barring Service is now responsible for the oversight of this area of public protection.
Whilst the Court plays no part in determining whether a defendant is, or may be disqualified, it is good practice for a Judge to inform a defendant that he/she will be barred, subject to his/her right to make representations.
From 8 March 2015, the Anti-social Behaviour, Crime and Policing Act 2014 replaced sexual offences prevention orders with sexual harm prevention orders (SHPOs).
A SHPO ‘prohibits the defendant from doing anything described in the order’. Section 103A Sexual Offences Act 2003 sets out the requirements for an application for a SHPO [See also sections 103B-103K]. The Court may make such an order if ‘it is satisfied that it is necessary to make a sexual harm prevention order, for the purposes of protecting the public, or any particular members of the public, from sexual harm from the defendant’.
In cases involving IIOC there will often need to be a requirement within the order to safeguard the public from further internet based offending. Blanket prohibitions on use of the internet are not permitted. The internet is now ubiquitous in all areas of modern life. Defendants should be unencumbered in their legitimate everyday use of the internet. Careful thought must be given in every case to draft appropriate prohibitions which are necessary and proportionate, bearing in mind the facts of the particular case and the risk posed by the defendant.
The case of R v Smith (Steven)  EWCA Crim 1772 remains the leading authority in this area. As was made clear by Hughes LJ – it is ‘not a comprehensive guideline for the framing of orders’. Indeed the Court made clear that the cases before them did ‘not afford sufficient material for any comprehensive guideline’.
Certain key principles emerge from the judgment of the court. These are central to the proper drafting of such orders. The prohibitions included in SHPOs:
- Must be necessary – ‘to prevent serious sexual harm’.
- Can be flexible in their drafting.
- Must be workable.
- Should not be vague in their terms.
- Should not be disproportionately restrictive on ordinary activities.
- Must be sufficiently clear that defendants understand what is expected of them.
- Must be sufficiently clear to allow their consistent and proper enforcement.
- Must seek to avoid risking unintentional breach.
- Should not replicate the terms of other regimes such as notification requirements or disqualification from working with children.
The Court emphasised that such overarching principles allowed for some flexibility in the drafting of terms. The terms can be tailored to the facts of each case. The practical approaches suggested in R v Smith should be viewed through the lens of modern technological developments, rather than applied wholesale.
In deciding what terms to include within a draft order it is important to look at the facts of each case carefully. Some well used SHPO terms may not fit the circumstances of the case being considered.
The police views as to which specific prohibitions are sought should be set out in writing and provided to the CPS. In particular the Police or Public Protection Officer should assist as to whether the defendant is a candidate for RMS to be fitted on his/her computer. In some cases such draft terms provided by the police will be more than adequate in their drafting and may be included within the application. However it is the responsibility of the CPS to ensure that the order is properly drafted.
Draft orders must be circulated in good time in accordance with CPR 31.3(1). They must be served in draft form on the Court and defence ‘at least two business days’ before the hearing.
As was stated in R v Smith [paragraph 20] ‘It is not appropriate to attempt to lay down a rule that one particular provision is adopted in all cases’. Prosecutors must not simply adopt previous examples of SHPOs or cut and paste from other orders (or this guidance) without giving each case sufficient thought and attention.
Careful thought is needed in every case to establish what particular harm is sought to be prevented and what steps are necessary. It may not be possible to know precisely what will happen during the lifetime of a SHPO. Such orders routinely run for periods of five years or more. In some cases orders run ‘until further order’. It will not be known when drafting the order: what equipment the defendant may buy; what advances in technology may have been achieved; what new techniques and innovations a defendant may have learned. Consequently it is necessary to deploy wider terms which allow for such changes to be policed by the order, whilst at the same time allowing a defendant to use the internet and remaining clear and workable.
Orders must be drafted as prohibitions. We suggest that the following examples of draft prohibitions might be included within a SHPO. These should not simply be cut and pasted into draft orders but may be give some guidance as to how to approach certain areas of identified risk.
The defendant is hereby prohibited from:
- Using any internet enabled device, unless:
- The device has the capacity to retain and display the history of internet use.
- The defendant has notified his public protection officer that he now possess the particular device.
- He makes the device available upon request to a PPU officer in order that:
- The internet history may be examined.
- Risk Management Software may be installed.
- Deleting some or all of the internet history on any internet enabled device.
- Deleting or interfering with any Risk Management Software if it is installed upon a device.
- Installing any additional operating system on any device unless you have requested permission from your PPU Officer and they have authorised you to do so.
- Using any home broadband router, unless you make the router available for inspection at the request of your PPU Officer.
- Using any Apple manufactured device to access the internet unless you have made the device available to your PPU officer and the officer has adjusted the settings on the device to prevent the future installation of prohibited software.
If it is known that a particular prohibition is objected to, it may be necessary to call an officer or an expert to give evidence in its support.
Prosecutors should always request forfeiture of indecent images of children using s.143 of the Powers of Criminal Courts (Sentencing) Act 2000 following conviction. The section allows a court to make a deprivation order, where:
- The Court is satisfied that any property (seized from him or in his possession) has been used for the purpose of committing or facilitating the commission of any offence [s.143 (1)].
- The court is satisfied that the offence [being sentenced or taken into consideration upon sentence], consists of unlawful possession of property which was in his possession or under his control at the time when he was apprehended [s.143 (2)(b)].
It is suggested that where offences of making indecent images have been charged an application under subsection one should be made. If the indictment contains charges of possessing indecent images an application can be made under subsection two.
Prosecutors are encouraged to take a robust approach to such applications. In the first instance it may be appropriate to seek a deprivation order for the complete hard drives of any device. It may however be argued by the defendant that there are specific reasons why a comprehensive order has a particular financial or other effect [see s.143(5)]. Such disputes should be settled on a case by case basis. Any suggestion that a compromise position should be adopted and that the police can delete certain images and return the remainder of the hard drive should be avoided. This process has huge time and resource implications for the police.
In addition to the process available upon conviction, an additional procedure exists for seeking forfeiture. Section 5 of the Protection of Children Act 1978 and Schedule One to the same Act (as amended by 39 of the Police and Justice Act 2006) provides a mechanism to allow police to forfeit indecent photographs of children following any lawful seizure. Having given all interested parties notice, the property is treated as forfeited if it remains ‘unclaimed’. If the defendant contests the notice of intended forfeiture there may be a hearing to determine the issue. Such proceedings are civil and are litigated in the magistrates’ court.
This process may be used to forfeit images in cases where the prosecutor at court has forgotten to ask for forfeiture of the images or where there is no conviction: for example where a caution has been given or charges dropped.
This process allows forfeiture of articles that are impossible to separate from legal data on a computer hard drive. It allows police to forfeit articles they believe are likely to be or contain indecent images of children. For example this will allow police to forfeit a vast collection of discs/videos without having to go through every single item, as long as they have reasonable grounds to believe they were or contained such images.
The Sexual Offences (Amendment) Act 1992 does not apply to offences under section 1 of the PCA 1978 and section of the 160 CJA 1988. If necessary, an order under section 45 or 45A of the Youth Justice and Criminal Evidence Act 1999 should be sought.
IIOC cases referred to the CPS should be referred to CPSD, Area or International Justice and Organised Crime Division in accordance with usual practices set out in the guidance to be found on the Casework Hub.
The decision by the police to administer a caution will ordinarily be made in conjunction with the CPS, although the police do, theoretically, retain a right to administer a caution.
Before offering a caution, the prosecutor must apply his or her mind to the public interest factors. Every case should be decided upon its own facts.
A caution is unlikely to be a suitable method of disposal in cases where indecent images of children are found on the suspect’s computer. Similarly, conditional cautions may be considered but are unlikely to be a suitable method of disposal. The lowest starting point stated in the sentencing guidelines is a high-level community order. The lowest starting point where conditional cautions are normally considered are at medium-level or below.
Cases that may be appropriate for a caution (subject to the application of the Code for Crown Prosecutors) are cases where indecent images of children are not found on the suspect’s computer, but the suspect admits to having previously accessed such sites to obtain indecent images of children.
Offences contrary to section 1 of the PCA 1978, section 160 of the CJA 1988 and section 69 of the Serious Crime Act 2015 (possession of a paedophile manual) require the consent of the DPP for the institution of proceedings.
A Crown Prosecutor can give consent on behalf of the Director of Public Prosecutions by virtue of section 1(7) of the Prosecution of Offences Act 1985. Consent cannot be implied merely because the CPS is conducting proceedings. A Crown Prosecutor must specifically consider the case and decide whether or not proceedings should be instituted or continued. The decision to grant consent is in all cases to be taken applying the principles of the Code for Crown Prosecutors and CPS policies.
Consent cases should be reviewed at the earliest possible opportunity. If the case is submitted for pre-charge advice and a decision is made to prosecute, consent should be obtained or given at that stage. Consent should always be given in writing.
If the defendant’s solicitor or counsel or expert (for any reason) wishes to view the indecent photographs/pseudo-photographs or examine the defendant’s hard drive, the prosecution should provide the defence with suitable access to the relevant material. Such access must enable the defendant to have private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS. Whenever possible, such access should take place either on police premises, or at the offices of either the defendant’s solicitors or the offices of the defence or prosecution expert. The accused should, of course, only be permitted access whilst in the company of their legal representative.
Prosecutors should remember that defence solicitors have a duty to defend their clients properly, whilst law enforcement agencies have a duty to ensure that they do not unnecessarily create more indecent images of children or compromise sensitive confidential material. See the case of Crown Prosecution Service v LR  EWCA Crim 924.
It will not always be the case that the defence need full access to a forensic computer image. Likewise it may not always be appropriate for law enforcement agencies to deny access to a forensic computer image.
When the issue arises as to the disclosure of such material, in order to decide whether or not to release such material, the following approach should be adopted:
- In cases involving a request for a technical examination of the evidence, a meeting should take place between defence and prosecution technical experts in order to agree what should be supplied. If it is necessary, the defence technical witness may be given private (or controlled) facilities to examine the images at law enforcement premises at reasonable hours.
- If the person in charge of the investigation considers it necessary, then the work may take place other than at police premises if the defence technical witness signs an appropriate undertaking.
- If the defence team cannot for good reason view the indecent images at a police station, for example in cases where the defendant is in custody, the prosecution should correspond with the defence in order to agree access to the indecent images by the defence team. Such access can be at an appropriate venue for example a court, the defence solicitor’s office or counsel’s chambers etc.
- In situations (1), (2) and (3) above, where no agreement is reached, the case should be referred to the court to hear argument and, if necessary, issue appropriate directions.
- If the court directs that copies of the indecent images should be supplied to the defence solicitor or counsel, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the solicitor or counsel signing an undertaking as to the safe custody and control of the image etc.
In the case of a technical witness, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the technical witness signing an undertaking as to the safe custody and control of the image etc. Breach of the undertaking may leave the signatory open to prosecution and disciplinary action from their professional body.
When viewing the photographs/pseudo-photographs arrangements should be made with the police for such images to be viewed on the police officer’s laptop or other computer equipment at a mutually agreeable location. A CD-ROM (or other media) containing indecent images of children should not in any circumstances be inserted into any CPS computer or laptop. It is undesirable for CPS prosecutors to take possession of indecent photographs of children. If it is deemed necessary to do so, such exhibits have to be dealt with as sensitive material, i.e. as having a protective marking of Official Sensitive, they should be kept in a safe and a log should be maintained recording dates accessed, by whom, length of time and the reason accessed.
Cases involving IIOC involve technical evidence. Prosecutors should ensure they are familiar with the concepts they are being asked to review. E-learning is available (see the Cyber Crime: Prohibited Sexual Material module on the Prosecution College) and prosecutors are encouraged to liaise with the officer in charge (OIC) or analyst at the High Tech Crime Unit (HTCU) if explanation of technical evidence is needed.