There are two pieces of legislation which deal specifically with the current Internet bête noire – material relating to children (legally defined in the
ISPs (PCA 1978, s 1(7) to (9)) are at risk of prosecution for distributing child pornography if they ‘channel’ such images to individual users. There are however two potential defences open to companies charged under the legislation – the first being that they did not see the image and had no knowledge or suspicion that the image was indecent, and the second that there was a legitimate (for example, medical) reason for possessing or distributing the image (PCA 1978, s 1(4)). The former defence is the pertinent one for ISPs, although again they are not going to be able to turn a blind eye ― particularly in respect of the more explicitly named newsgroups or where the authorities have warned them about a particular site.
There have already been many, many instances where these pieces of legislation have been used against individual Internet users who have either downloaded or distributed ‘child pornography’ via the Net. No prosecution has been brought against an ISP in
Downloading
The act of downloading an indecent image of a child from the Internet is now viewed by the courts in this country as the more serious offence of ‘making’ an indecent photograph rather than the less serious offence of simply possessing such a photograph. This is because the act of downloading actually creates a further copy of the image (R v Bowden [2002] 2 WLR 1083; Atkins v DPP [2000] EWHC Admin 302). A further offence of making an image would be committed if the image is copied (but probably not simply moved) to removable storage media or a ‘hard copy’ is printed out.
Increased Penalties
From January 2001 the offence of ‘making’ an indecent photo is punishable with up to ten years’ imprisonment and the offence of simply possessing an indecent photo of a child is punishable with up to three years’ imprisonment (Criminal Justice and Court Services Act 2000, s 41(1)). The changes in maximum sentences reflect the increasing seriousness with which such offences are regarded. When the offence of simply possessing an indecent child photo was first introduced it carried only the possibility of a financial penalty. This was initially increased to six months’ imprisonment by the Criminal Justice and Public Order Act 1994. The offence of making an indecent photo originally carried a maximum of three years. The combined effect of s 3 of the Human Rights Act 1998 and Article 7 of the European Convention on Human Rights means that this increase in penalties will apply only to offences committed after January 2001. If there is any uncertainty about the date of downloading (and often file characteristics can be missing or confused), so that it is not clear whether the making was before or after January 2001, a sentencing court will have to err in the defendant’s favour.
A conviction for either offence also now carries mandatory registration as a sex offender under the Sex Offenders Act 1997. New regulations introduced in 2001 mean that sex offenders not only have to keep the police informed of changes in address and identity but also provide details of any foreign travel arrangements.
Browsing
Evidence in downloading cases is usually fairly clear cut ― for example, where images are discovered in a specially created folder entitled ‘Images’. There is really no possible explanation save that the images were deliberately downloaded. However, in 2002 the Court of Appeal gave more detailed consideration to the situation of individuals who browse the Web and encounter indecent photographs but do not deliberately download the images. There are two parts to the judgment in the case of R v Smith [2002] EWCA Crim 683. The first ‘exonerates’ browsers who are not aware of the operation of the Internet browser cache and who inadvertently stumble across indecent photos of children whilst browsing, with the result that a copy of the image ends up on his or her hard drive. However the other aspect of the judgment condemns those that simply cause an indecent photo to appear on their computer screen (even though they do not actively download it) providing they hold the necessary criminal intent or mens rea. The court defined the required criminal intent as: ‘the act of making should be a deliberate and intentional act with knowledge that the image made is, or is likely to be, an indecent photograph or pseudo-photograph of a child.’
This ruling will therefore catch people who actually go looking for child pornography although they do not deliberately download it onto their hard drive. The ruling however raises the question of how it can be established during a police investigation that an individual browser has deliberately sought out child pornography rather than accidentally stumbled across it.
Evidence Gathering
If the police suspect that a particular individual has been involved in trading or downloading child pornography then typically they obtain a warrant from a local magistrates’ court authorising them to enter property and to search for evidence. The PCA 1978 contains specific provisions (s 4) enabling a court to issue a search warrant. Alternatively the police are empowered to conduct a search of premises following an arrest for a suspected offence. This power derives from s 18 of the Police and Criminal Evidence Act 1984 and such searches are colloquially known as ‘s 18 searches’. In cases of people arrested for suspected child abuse, the police will frequently conduct a s 18 search for indecent photographs at the suspect’s home.
S 18 searches must be confined to material relevant to the allegation for which the person is under arrest. There is clearly some argument that possession of indecent photographs is not relevant evidence of the commission of an act of indecent assault. It may indicate a propensity to commit such an offence but it is not direct relevant evidence that the offence has been committed. Evidence of propensity is not usually admissible evidence in the
Usually during searches for indecent photos of children, the police simply uplift all computer equipment and removable storage media and retain it pending a detailed forensic examination. However, my recent experience has been that the police now actually conduct an initial examination of any computer equipment at the suspect’s home. Software which quickly detects binary files (including ‘deleted’ files) is used and if anything suspicious is found the computer and media are then seized and inspected.
During a detailed forensic examination the police rely principally on software known as EnCase. EnCase is actually a
EnCase first produces a mirror copy of a hard drive ― thus preserving the original from allegations of tampering or data manipulation. The mirrored drive is then examined. The software will readily recover all those files (including deleted files) containing images. The discovery of indecent images of children is however just the first step in the forensic examination. If those images are stored in a specific directory (as opposed to the cache) then this is evidence of deliberate downloading and storage. If the images are in the cache directory (or have been deleted from that directory) then the issue arises as to whether the images are there as a result of a deliberate hunt for child pornography or because someone has accidentally stumbled across a child pornography site.
One of the indicators of deliberate rather than accidental browsing is the recovery of a thumbnail version of a picture plus an enlarged version of the same image. The existence of the enlargement is good but not necessarily conclusive evidence of deliberate viewing, namely the selection of, and double-clicking on, a thumbnail.
EnCase has been supplemented by modules developed by individual agencies and indeed individual police officers.
Operation
The genesis of Operation Ore itself has been the provision to the UK police by law enforcement agencies in the US of a list of credit card subscribers to a pay-per-view Web site run by a firm called Landslide, based in Fort Worth Texas. Allegedly more than 7,000 people in
Of course with the amount of publicity that Operation Ore had received, and with high-profile arrests such as Pete Townshend, many ‘
The ‘incitement to distribute’ approach is not without problems however since it must be incumbent on the police to provide some clear evidence of the nature and content of the site during the period when a suspect was subscribing to it. This may be difficult where a site, like the one operated by Landslide, has been out of business for some years.
Sentencing
The issue of sentencing policy for child pornography offences was revisited by the Court of Appeal in 2002. At the start of the year the Sentencing Advisory Panel issued a consultation paper on sentencing in this area.
The Panel explicitly acknowledged that access to the Internet, and the use of hand-held video cameras, have made it easier to obtain, produce and distribute indecent images of children and that this increased ease of access in itself warranted a review of sentencing policy. The Panel first suggested that the courts should adopt a categorisation of types of indecent photographs of children which has been produced by the COPINE project (Combating Paedophile
1. Indicative (non-erotic/non-sexualised pictures).
2. Nudist (naked or semi-naked in legitimate settings/sources).
3. Erotica (surreptitious photographs showing underwear/nakedness).
4. Posing (deliberate posing suggesting sexual content).
5. Erotic posing (deliberate sexual or provocative poses).
6. Explicit erotic posing (emphasis on genital areas).
7. Explicit sexual activity (explicit activity but not involving an adult).
8. Assault (sexual assault involving an adult).
9. Gross assault (penetrative assault involving an adult).
10. Sadistic/bestiality (sexual images involving pain or animals).
Utilising the COPINE typology, the Sentencing Advisory Panel then suggested a sentencing structure. This can be viewed via the Panel’s Web site at www.sentencing-advisory-panel.gov.uk.
Fines – would be appropriate where an offender is in possession of material purely for his own use (including cases where material was downloaded from the Internet, but without further distribution) –
and either
(i) the material consisted entirely of ‘pseudo-photographs’, the making of which did not involve the actual abuse or exploitation of children or
(ii) the material consisted entirely of images at level 1 and 2 in the COPINE categorisation. or
(iii) the material included only a few images at levels 3-6 of the COPINE typology
A conditional or absolute discharge might be appropriate in such a case if the defendant pleads guilty (
Community Sentences (including probation – now known as a Community Rehabilitation Order – and Community Service – now known as a Community Punishment Order) would in the panel’s view be appropriate in cases where an offender was in possession of a substantial quantity of indecent material, including no more that a few images at levels 7-10 of the COPINE typology, but where the material has not been distributed or shown to others.
Prison Sentences – The Panel suggests that these will be appropriate where any material has been distributed or shown to others or where there is a moderate or large quantity of level 7-10 material.
Sentences of up to 6 months will be appropriate where images not above level 6 have been shared with a small group of friends or exchanged with other collectors but not for financial gain.
Prison sentences of 6-12 months will be appropriate where:
(i) a moderate quantity of level 7-10 material is found but there is not distribution or showing
(ii) a large quantity of level 3-6 material is shown or distributed
(iii) a small quantity of level 7-10 material is sown or distributed.
The Panel suggested that longer sentences of 1-3 years will be appropriate where either the offender was in possession of, or has distributed, a large quantity of level 7-10 material or where the offender has produced or traded commercially in level 3-6 material.
Sentences of over 3 years should be reserved for those involved in the production and commercial distribution of level 7-10 material – especially where the offender was directly involved with the abuse of a child.
Where an offender has one or more previous convictions for offences involving children the Panel suggested that this should result in the case being placed at least one level higher than would otherwise have been appropriate.
In December 2002 the Court of Appeal finally adopted the Panel’s recommendations but revised them. In brief the Court of Appeal simplified the COPINE typology and adopted a rather harsher approach to sentencing (R v Oliver (2002) The Times, 6 December). The typology adopted by the Court uses just five categories:
1. Images depicting erotic posing with no sexual activity.
2. Sexual activity between children or solo masturbation.
3. Non-penetrative sexual activity involving an adult.
4. Penetrative activity with an adult.
5. Sadism or bestiality.
The Court indicated that a sentencer should look at the issue of the offender’s involvement with the material:
· the seriousness increases with proximity to, and responsibility for, the original abuse
· any element of commercial gain will place an offence at a high level of seriousness
· swapping of images is a form of commercial activity, albeit without gain, because it fuels demand
· 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 of the original victims
· merely locating an image on the Internet will be less serious than downloading it, and downloading will be less serious than taking an original film or photograph.
A banding approach similar to that suggested by the SAP was recommended by the Court, albeit one ratcheted up a couple of notches.
· A fine would normally be appropriate where the offender was merely in possession of material solely for his own use, including material which he has downloaded from the Internet, 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 level 1 material.
· A conditional discharge might be appropriate where there was a plea of guilty and no previous convictions, but a discharge should not be ordered merely to avoid the provisions of the Sex Offenders Act 1997. Offences involving pseudo-photographs will generally be less serious than those involving real photographs; the element of corruption of children will be absent.
· A community sentence may be appropriate in a case of possession of a large amount of level 1 material and/or a small amount of level 2 material, provided that it has not been distributed or shown to others.
· The custody threshold will usually be passed where any of the material has been shown or distributed to others, or for simple possession of a large amount of level 2 material or a small amount of level 3 material.
· A sentence of up to six months would be appropriate, rising to 12 months for showing or distributing a large amount of level 2 or 3 material or possession of a small amount of level 4 or 5 material.
· A sentence of between 12 months and three years will be appropriate for:
(a) simple possession of a large quantity of level 4 or 5 material, or
(b) showing or distributing a large quantity of level 3 material, or
(c) producing or trading in material at levels 1 to 3.
· longer sentences should be reserved for cases where:
(a) level 4 or 5 material has been shown or distributed, or
(b) there was active involvement in the production of images at those levels, especially where there was an element of breach of trust, and whether or not there was any commercial gain, or
(c) the offender had commissioned or encouraged others to produce such images.
If an offender comes into more than one of these categories, the sentence should be correspondingly more severe.
· Sentences approaching the maximum (10 years) will be appropriate in serious cases involving an offender with a history of dealing in pornography and/ or of physically or sexually abusing children. Previous convictions may take a case over the custody threshold.
