‘Child pornography’ – perhaps the most emotive of criminal offences.
‘Association of Chief Police Officers’ (ACPO) statistics suggest that 84% of
the overall case load for High Tech Crime Units across the UK involves indecent
imagery and child abuse investigations. This area of crime is often seen as the
‘dark side of the web’ and as a result is perhaps the least discussed.
In cases of this nature the courts are concerned with the question of
intent, creation, possession, dissemination, and the social context of any
wrongdoing. As the most investigations of this nature involve computers, data
storage devices, and Internet history records, the role of the technology
expert witness is crucial.
Relevant acts in this field of crime are the Protection of Children Act
1999, Criminal Justice Act 2003, Sexual Offences Act 2003 and the newly
released Coroners and Justice Act 2009. Specialist establishments also exist
with the aims of preventing and managing the threat, including the Internet
Watch Foundation (IWF) and the Child Exploitation and Online Protection Centre
(CEOP).
The ‘Combating Paedophile Information Networks in Europe’ (COPINE)
project originally created a ten point scale to grade the severity of images.
In the case of R v OLIVER (2003), the Sentencing Advisory Panel (SAP) modified
the COPINE typology and adopted a 1 – 5 grading system:
· Grade 1:
Images depicting nudity or erotic posing, with no sexual activity
· Grade 2:
Sexual activity between children, or solo masturbation by a child
· Grade 3:
Non-penetrative sexual activity between adult(s) and child(ren)
· Grade 4:
Penetrative sexual activity between child(ren) and adult(s).
· Grade 5:
Sadism or bestiality
Generally the custody threshold is reached when an individual is in
possession of material graded above level two, although the courts will also
consider other factors such as the quantity of images present, the quality of
the material, the duration for which the material has been retained, whether
there is evidence of distribution, and whether the individual has been
responsible for actually creating the material. Sentencing can range from a
fine or conditional discharge to nearing ten years imprisonment for the most
cruel crimes.
Indecent imagery cases, like most crimes, may have common features (e.g.
presence of illegal media on a computer) but the circumstances and context will
always vary. As a result, the Judge and other authorities may need to adapt,
modify or clarify the law in order to achieve a fair result. This
interpretation of legislation leads to new lawful guidelines referred to as
‘Case Law’.
In the matter of R v BOWDEN (2000) it was accepted by the court that
downloading or printing images from the Internet should be classed as ‘making’
a photograph due to the fact that a person is duplicating material through
these actions. However, it must be taken into consideration whether a user
meant to ‘make’ an indecent image or whether it may have been an accident. In
certain instances, it may be the case that someone opened an Email attachment
or clicked a link to download a file. Upon opening that item, the user could be
presented with indecent or illegal content. The above happened during the case
of R v SMITH in 2002, where the defendant was unlikely to have known that an
Email attachment contained an indecent image. Because of this, he was not
convicted of making or possessing indecent material.
In 1997 it was ruled that providing someone with a password to indecent
material is essentially showing them that data in the R v FELLOWS & ARNOLD
case. Sharing access to indecent images through authentication methods can also
be classified as distribution of material. For this reason, both defendants
were sent to prison based on evidence that they had both accessed the indecent
images stored on their employers’ computer at Birmingham University.
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