Picture perfect

The words 'internet' and 'pornography' are almost synonymous in today's society. Almost everyone is aware that pornographic images are available cheaply and in the privacy of one's own home thanks to the world wide web. Most pornography is not illegal, but the obvious exception, indecent images of children, has forced the law to constantly keep abreast of changing technology and the expanding scope of media possibilities.

In 2008, section 69(3) of the Criminal Justice and Immigration Act amended section 1 of the Protection of Children Act 1978 (PCA) in order to broaden the definition of a 'photograph', which, if indecent, is illegal under the PCA. The idea behind the amendment was to allow for seizure of computer generated images (CGIs), cartoons and drawings depicting indecency and children which did not appear to include a 'real' child at all. Such an image, not coming under the original definition of photograph or pseudo-photograph in the PCA, appeared to be legal under English law and there was concern that technological advances would lead to highly realistic images of child abuse being available which the police would be powerless to remove from circulation. The potential problem with section 69 was the requirement that the illegal image had to be 'derived from' a photograph or pseudo-photograph, and this appeared to rule out the indecent CGIs or cartoons which section 69 had been introduced to deal with.

Achievable aims

The Coroners and Justice Bill currently before the House of Lords seems to be a piece of legislation with a much better chance of achieving its aims. The Bill suggests a new offence under section 49 which makes it illegal to be in 'possession of prohibited images of a child'.

A prohibited image is defined in section 49(2) as one that is (a) pornographic, (b) falls within subsection 6, and is (c) grossly offensive, disgusting or otherwise of an obscene character. It appears that all three have to be proven. It should be noted also that the definition of pornographic is dependent on 'reasonable assumption' and is therefore objective.

The law has been uncertain about how to approach the problem of an indecent image when there has been no actual child involved in its production. It will be uncertain no longer. Section 52(8) states: 'References to an image of a child include references to an image of an imaginary child.'

The great failing of the recent Criminal Justice and Immigration Act was that it missed the opportunity to break away from the concept of an illegal 'photograph' or pseudo-photograph as defined in sections 7(4) and 7(7) of the PCA 1978. Instead, section 69 linked back to the PCA by insisting that the prohibition referred to images 'derived from' photographs or pseudo-photographs. If this could not be proven, and an image was not realistic enough in its own right to qualify as a pseudo-photograph, then the chance of a conviction was remote. Section 52(2) defines 'image' as:

(a) a moving or still image (produced by any means); or

(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

This simple definition, a model of clarity, follows precisely section 63(8) of the Criminal Justice and Immigration Act which prohibited the possession of 'extreme pornographic images'. Section 52(2) is wide enough to catch 'age play' on Second Life or other role play games as well as cartoons or sketches, hand drawn or computer generated, important for the parity which the law must strive for between 'online' and 'offline' offences.

A separate offence

The proposed Bill will be welcomed by those with child protection interests as a comprehensive piece of legislation which signifies the law moving forward and away from old technology and accepting that the term 'photograph' in the PCA has been stretched over the years to its absolute limit. Section 69 is a new and separate offence, with a lesser sentence of a maximum of three years' imprisonment and/or a fine on conviction on indictment under section 53(2)b. This can be contrasted with up to ten years on indictment under section 1 of the PCA and would lead to the conclusion that section 69 is a lesser offence by some degree. It may raise the question of why it is to be an offence at all? A legitimate concern may be that these role play images are not real, never involved children and occurred nowhere; the individuals concerned being possibly thousands of miles apart. It may help to realise that the prohibition is on the image produced by the role play, not, strictly, by the role play itself. Again, this can be likened to the extreme pornography offence. The acts portrayed may be consensual (or even just the product of a febrile imagination) but the law has decided that they are not to be tolerated.

It is to be hoped that sections 49-53 survive the House of Lords process unscathed and produce a welcome clarity in this area. Although the Bill is relatively straightforward, it might be questioned how often such an offence will be used in practice. It seems unlikely that prosecutors will find this sort of material in a defendant's possession in isolation from actual photographs or pseudo-photographs '“ which would then be charged under the PCA with its greater sentencing powers. This Bill is needed nevertheless '“ technology moves forward inexorably '“ the law must keep pace.