The free library95 of 85 Sexual offences

Taking, making or distributing indecent images of children

s.1Protection of Children Act 1978

Taking, making, distributing or showing indecent photographs or pseudo-photographs of a child, possessing them with a view to distributing or showing them, or advertising that you do so.

Taking, making or distributing indecent images of children · Protection of Children Act 1978, s.1Card 95 / 85

Points to prove

s.1(1)(a)Took, or permitted to be taken, or made an indecent photograph or pseudo-photograph of a child
s.1(1)(b)Distributed or showed such indecent photographs or pseudo-photographs
s.1(1)(c)Had such indecent photographs or pseudo-photographs in their possession, with a view to their being distributed or shown by themselves or others
s.1(1)(d)Published or caused to be published an advertisement likely to be understood as conveying that the advertiser distributes or shows such images, or intends to do so
s.1(1)(a) makingDone deliberately, knowing that the image was, or was likely to be, an indecent photograph or pseudo-photograph of a child

Key definitions

Child – s.7(6): a person under 18. A pseudo-photograph is treated as showing a child if the impression conveyed, or the predominant impression, is that the person shown is a child (s.7(8)).
Photograph – s.7(2), (4) and (4A): includes a film, a copy, the negative, data stored electronically that can be converted into a photograph, and a tracing or other image derived from a photograph or pseudo-photograph.
Pseudo-photograph – s.7(7): an image, whether made by computer graphics or otherwise, which appears to be a photograph.
Film – s.7(5): includes any form of video recording.
Indecent – not defined. It is for the court to decide, applying recognised standards of propriety. The defendant’s motive is irrelevant (R v Graham-Kerr 1988), but the child’s age is relevant (R v Owen 1988).
Distributing – s.1(2): parting with possession of the image to another person, or exposing or offering it for acquisition by them. No payment is needed.
Making – includes downloading or printing an image (R v Bowden 2000), and opening an image or attachment on screen, if done deliberately and knowing it is, or is likely to be, an indecent image of a child (R v Smith; R v Jayson 2002).

Defences

s.1(4) – for distributing or showing (s.1(1)(b)) or possessing with a view to distribution (s.1(1)(c)), the defendant must prove that they had a legitimate reason, or that they had not seen the images and did not know, nor had any cause to suspect, them to be indecent.
s.1A – exceptions where the child was 16 or over and the defendant and child were married, civil partners, or living together as partners in an enduring family relationship. The defendant must first prove the age and the relationship.
s.1B – the defendant must prove that making the image was necessary for the prevention, detection or investigation of crime or for criminal proceedings, or for the work of the security and intelligence services or Ofcom’s online safety functions.

Good to know

Simple possession is a separate offence under s.160 of the Criminal Justice Act 1988 (maximum 5 years). It has a further defence where the image was sent without request and not kept for an unreasonable time.
Proceedings need the consent of the Director of Public Prosecutions (s.1(3)).

Legislation: Protection of Children Act 1978, s.1 (opens legislation.gov.uk in a new tab)
Mode of trial: Either way
Maximum penalty: 10 years' imprisonment (on indictment); 12 months' imprisonment and/or a fine (summary)