Criminal Justice Act 1988

The Criminal Justice Act 1988 deals with the summary offence of possession of an indecent photograph of a child.

The Criminal Justice Act 1988 creates, amongst many others a summary offence of possession of an indecent photograph of a child (section 160).

IT managers, HR departments and senior business executives need to ensure appropriate policies and procedures are in place to deal with illegal images of children which might appear on IT systems and networks, or be downloaded by workers. Forensic examination of the hard drive can usually identify what material is held within the temporary internet file, and assuming the identity of the user is known, such material may equally attract a charge of ‘making’ each such image without the need to prove knowledge of the automatic cache.


Possession of indecent photograph of child


The Criminal Justice Act 1988 creates a summary offence of possession of an indecent photograph of a child (section 160). IT managers, HR departments and senior business executives need to ensure appropriate policies and procedures are in place to deal with illegal images of children which might appear on IT systems and networks, or be downloaded by workers.

The two main offence provisions in this area are section 1 of the Protection of Children Act 1978 (PCA 1978) and section 160 of the Criminal Justice Act 1988 (CJA 1988). The PCA 1978 addresses certain aspects of the sexual exploitation of children by penalizing the making, distribution, showing and advertisement of indecent photographs of them. The test to be applied in respect of indecent images of children is whether or not it is indecent. The word 'indecent' has not been defined by the PCA 1978, but case law has said that it is for the jury to decide based on the recognized standards of propriety.

Section 160 CJA 1988 covers the offence of possession of an indecent photograph of a child. There are four defences to this offence: three are listed in section 160(2) CJA 1988, and one is listed in section 160A. Three of these defences are very similar to those that apply to some of the offences under section 1 PCA 1978, i.e. marriage, etc of a child aged 16 or 17, legitimate reason, and the defendant's lack of knowledge. The fourth defence, which is not found in the PCA 1978, is that the photograph or pseudo-photograph was sent to the defendant without any prior request made by him and he did not keep it for an unreasonable time.

For the mental element that the prosecution must prove; and what appears to be a photograph (or pseudo-photograph see Atkins v DPP; Goodlands v DPP [2000] 2 Cr App R 248, Archbold 31- 118. This needs to be read in the context of the Court of Appeal judgment of R v Porter [2006] EWCA Crim 560.

Atkins v DPP is significant, in particular with respect to:

  1. Computers with multiple users, where there is no forensic evidence as to which user accessed a site, and
  2. Prosecutions relating to possession of material stored within automatically generated areas of the hard drive.

Forensic examination of the hard drive can usually identify what material is held within the temporary internet file, and assuming the identity of the user is known, such material may equally attract a charge of 'making' each such image without the need to prove knowledge of the automatic cache. If a user is demonstrated (e.g. by admission, or by proof that he has accessed the temporary internet file off-line) to have known of the existence and effect of automatic operating software, the offence of possession may arise.

In R v Porter the Court of Appeal held that an image will only be considered in possession if the defendant had custody or control of the image at that time. If at the time of possession the image is beyond his control, then he will not possess it.

This has implication for the use of forensic examinations if an image has been deleted, 'possession' will depend on whether the defendant had the know-how and or the software to allow him to retrieve the image. Where, however, the offender admits that he downloaded the image or accessed it on the Internet then a charge of 'making' under section 1 PCA 1978 may arise.


Subsection 160(2)(c)


The defendant must prove both 'that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf' and that 'he did not keep it for an unreasonable time'. 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. Archbold 31 - 119.


Defence of legitimate reason


'Legitimate reason' is not defined anywhere in the Act. It follows that a particular defendant may advance a range of possibilities for any admitted possession of such material. The provision clearly afforded (prior to section 46 SOA 2003, which introduced an exception for criminal proceedings and investigations) a defence to any party within the criminal justice system who of necessity must have possession of evidential material. There is, of course, no licence to an individual prosecutor or expert to retain material beyond the proper requirements of a particular case.

A defendant claiming 'legitimate reason' is presumed to admit possession of the qualifying material. The language of the Act appears to place both the evidential and legal burdens upon the defendant and following Sheldrake v DPP; Attorney General's Reference No 4 of 2002 [2005] 1 AC 264 it is likely that this will be accepted. As with other such defences that must be raised and proved by a defendant, the standard of proof is civil, namely that the defendant has established that 'it is more likely than not' that there was a legitimate reason for his possession of material.


Reference


Criminal Justice Act 1988

UK/1988/C/33

Updated 10th June 2013