Breaking News – ‘Child Pornography’ Is Illegal

In the United Kingdom, the age of consent, that being the age at which a person is deemed to have the capacity to consent to having sex (or engage in a form of sexual act), is 16. There are some exceptions to this, such as where there is a position of trust involved such as a teacher and their student, or where capacity overall is deemed lacking (such as by the Court of Protection).

However, those under 18-years-old are still considered children for the purposes of the law by virtue of Article 1 of the United Nations Convention on the Rights of the Child, this includes the Protection of Children Act 1978. This Act makes it so that any indecent image of a person under the age of 18 is illegal, this most commonly refers to nude images but can include other forms of indecency such as ‘nearly nude’ images in provocative poses, or images where there is no nudity but the surroundings of the image are indecent.

Section 1 of the Act makes for several offences:

“(1) …it is an offence for a person –
(a) To take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or
(b) To distribute or show such indecent photographs or pseudo-photographs; or
(c) To have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself to others…”

These offences are made out even where the person who makes, distributes, or possesses is the person in the images. Whilst it is unlikely to be prosecuted in the case of, say, two 17-year-olds in a relationship who are exchanging such images, it is nonetheless a criminal offence. In R v M [2011], a 23-year-old man was convicted of two counts of making indecent images under the 1978 Act, this occurred as he engaged in consensual sex with a 17-year-old and after this he took images of her on his phone. The court found that this still constituted an offence, there were several reasons for this, but a primary ground was on the basis of public policy – That being one which is not strictly what the law writes, rather, one on which morality and societal cohesion requires. In this case, the argument is that children are inherently vulnerable, whilst consensual sex is one thing, this cannot be ‘shared’ or ‘spread’ in the way an image can, a child who has images taken of them, particularly in short term or non-committed relationships, is open to significant exploitation in the spreading of that image. The Court stated:

“The measures with which the court has been concerned are necessary for the prevention of crime, protection of morals and in particular for the protection of children from being exploited. The legislation does not criminalise consensual sexual activity between the Appellant and a child ages 16 or 17, rather then 1978 Act strikes the balance between keeping interference by the State in the private lives of individuals to the minimum and maintaining under the law maximum protection for children from sexual abuse and exploitation”.

This is the same reasoning behind recent ‘revenge porn’ offences in s.33 of the Criminal Justice and Courts Act 2015 but with the added protection that the child is unable to offer their consent whereas an adult is able to, the reasoning being simply that children lack as much insight into consequences and therefore the consent has to be restricted.

There are exceptions to the 1978 Act, the most notable being that where the 16- or 17-year-old is married to another person, then, they rightly can send images to their partner and their partner is not committing an offence. Whilst this seems like a rather strange exception, when considering the public policy argument of exploitation, it fits. This exception requires there to be a strong and binding contact of marriage in place, the likely result being that the relationship is a committed one and that person is less likely to suffer exploitation than would a young person engaging in casual sex or a non-committed relationship per se.

This means that, no matter how consensual the relationship (bar marriage) a person can never possess indecent images of a child, even where that child is the one who sends them.

As a matter of practicalities that the courts have not much argued for or expressed, in the digital and internet age, these protections are more vital than ever. An image is for all intents and purposes immortal, they are almost impossible to remove once they are out and they can multiply and be shared tens of thousands of times within a matter of minutes. In my former life, I trained local and central government on the issue of child protection, much of my research and training focused on sexual exploitation within the context of online grooming and ‘nudes’, this research uncovered a vast network of underground groups who would hunt and share such imagery, buy and sell it, and obsess over the people in the images to the point where these people were targeted for more – This is very emblematic of the moral and societal protections that the Court of Appeal were arguing for in R v M.

Whilst the argument about the BBC presenter accused of paying a child for such images is one that this article is not addressing specifically, this situation is a prime example of why these protections are important. A child is much more vulnerable to things such as financial exploitation or the inherent coercion that can arise with a ‘celebrity’ engaging in any such contact with a child, this is similar to situations we see with popular internet personalities or musicians who groom and exploit young fans for sexual gratification. Further, this situation has revealed the true extent of legal ignorance when it comes down to indecent images even at the most basic level and the need for education on these matters is vital.

If you have ever been impacted by the sharing of nude images or are concerned about any images which you may have accessed there are organisations who may be able to help or support you:

• Internet Watch Foundation
• CEOP
• National Crime Agency
• Lucy Faithfull Foundation
• Revenge Porn Helpline
• Victim Support

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