Protection of Children Act 1978

The Protection of Children Act 1978 is an Act of the Parliament of the United Kingdom.

The Protection of Children Bill was put before Parliament as a Private Member's Bill by Cyril Townsend in the 1977-1978 session of Parliament.

This Bill came about as a result of the concern over child pornography and the sexual exploitation of children that arose in the United States of America in 1977 and the uptake of this cause in the UK by Mary Whitehouse and the press. At the same time, an organisation called the Paedophile Information Exchange was attracting much media attention. In this atmosphere, Whitehouse's National Viewers' and Listeners' Association was able to campaign in support of the Bill and present a petition bearing 1,600,000 signatures to 10 Downing Street.

When the progress of the Bill was threatened by MP Ian Mikardo, who blocked it to protest against tactics being used by the Conservative party to block Edward Fletcher's bill on employment protection, the Prime Minister, James Callaghan, stepped in to ensure that the Bill received the time required in order to become law (Bolton Evening News, 18 April 1978)

The Law

Offences

As first enacted, the Protection of Children Act 1978 defined 6 offences:

Section 1.–

(1) It is an offence for a person–

:(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16); or

:(b) to distribute or show such indecent photographs; or

:(c) to have in his possession such indecent photographs, with a view to their being distributed or shown by himself or others; or

:(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or intends to do so.

The Criminal Justice and Public Order Act 1994 amended this to deal with the concept of pseudo-photographs.

1.– (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 or others; or
:(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so.

The Sexual Offences Act 2003 further amended the 1978 Act so as to increase the age of a child from 16 to 18; consequently, the 2003 Act also added a defence to cover the situation where an "indecent photograph of a child" was created by that child's partner. Because of the Bowden decision, it was also necessary to add a defence where it was necessary to make an indecent photograph or pseudo-photograph for the purposes of a criminal investigation.

1.– (1) Subject to sections 1A and 1B, 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 or others; or
:(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so.

Definition of a child

Initially, the definition of a child was contained in the definition of offences:
:1.-1 It is an offence for a person
::(a) to take, or permit to be taken, any indecent photograph of a child (meaning in this Act a person under the age of 16) ;

While adding the definition of pseudo-photographs, the 1994 Act deleted this definition and inserted a new subsection to the interpretation section:-

7.-(6) 'Child', subject to subsection (8), means a person under the age of 16.

Subsection (8) defines psuedo-photographs. Subsection (6) was further amended by the Sexual Offences Act 2003, which raised the age of a child to 18.

Definition of an indecent photograph

See Indecent photograph of a child

Definition of an indecent pseudo-photograph

See Indecent pseudo-photograph of a child

Interpretation

Indecency

In R v Graham-Kerr (1988), the accused had taken photographs of a young boy at a nudist meeting at a public swimming baths. The Court of Appeal held that the motivation of the photographer had no influence on the decency or otherwise of the photographs taken; a photograph is an indecent photograph of a child if it is indecent, and if it shows a child.

Whether or not a photograph or pseudo-photograph is indecent is a question of fact, and as a question of fact it is something for a jury or magistrate to decide. The jury should apply the standard of decency which ordinary right-thinking members of the public would set - the "recognised standards of propriety" as R v Stamford [1972] puts it.

Relevance of the age of a known subject

In R v Owen (1988), it was held that age of the child in the photograph is a consideration the jury should bear in mind when deciding whether or not the image is "indecent". Owen was a professional photographer who had taken a number of photographs of a 14-year-old girl who, it was claimed, wanted to become a model. In these photographs the girl was scantily dressed and showing her bare breasts. The defence argued that the image should be judged as it stood, disregarding evidence of the girl's age - presumably thinking that a similar image showing a 16 or 17 year old girl would not be considered indecent (at that time - since then, the age of a child has been increased to 18).

Computer files

In R v Fellows [1997] the Court of Appeal held that a computer file came within the scope of the definitions of the Act.

Section 7(2) of the 1978 Act defines references to an indecent photograph as including a copy of an indecent photograph.

A computer file contains data, not visible to the eye, which can be converted by appropriate technical means into a screen image and into a print which exactly reproduces the original photograph from which it was derived. It is a form of copy which makes the original photograph, or a copy of it, available for viewing by a person who has access to the file. There is nothing in the Act which makes it necessary that a copy should itself be a photograph within the dictionary or the statutory definition, and if there was, it would make the inclusion of the reference to a copy unnecessary. The Court of Appeal concluded that there is no restriction on the nature of a copy, and that the data in a computer file represents the original photograph, in another form.

Prosecuting a photograph where the age of the subject is unknown

Where the age of the subject of a photograph is uncertain (i.e. where the identity of the subject is unknown), the subject's age shall be determined from the photograph.

Section 2.-(3) provides that a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the defined age of a child.

In R v Land (1997), the Court of Appeal held that a jury is as well placed as an expert (e.g. a paediatrician) to assess any argument addressed to the question whether the prosecution had established that the person depicted in a photograph was a child, and in any event expert evidence would be inadmissible: expert evidence is admitted only to assist the court with information which was outside the normal experience and knowledge of the judge or jury.

Making photographs (computer files)

In an appeal against conviction in R v Bowden (1999) the Court of Appeal held that downloading data representing indecent photographs of children from the Internet amounts to an offence within the meaning of s.1(1)(a) of the Protection of Children Act 1978.