Adult Material on the Internet

Application of the Criminal Law

Laurie Kelleher

Crown Prosecution Service

Text in italics has been added by myself (Clive Feather) based on notes I took during the session. These are not part of Mr. Kelleher's presentation, and are not necessarily his opinion.

Extracts from statutes and regulations in this document are not verbatim.

  1. Definitions:

    1. Adult material: This is not a very precise term - a more specific one, in the context of the Internet would be "computer pornography". The Home Affairs Committee in its First Report on the subject used this definition:

      obscene or indecent images and sounds which are stored, transmitted or viewed using computer technology

    2. The Criminal law applies to both obscene and indecent material. This includes simple text with no illustrations.
    3. Obscene means tending to deprave and corrupt persons likely to read see or hear the material. (Obscene Publications Act 1959 s.1(1)) [OPA]

      This definition dates back to the 1860s. It has no objective meaning, but relies entirely on a jury's view of what is obscene. Note the wording "persons likely". There is a reasonable argument that material sold in a sex shop can be extremely hard, because anyone reading it is doing so because they know what it is, and so will not be depraved or corrupted.

    4. Indecent is not defined in any statute but bears its dictionary meaning: unbecoming, highly unsuitable or inappropriate, contrary to the fitness of things, in extremely bad taste, unseemly. (Oxford English Dictionary)
  2. Obscene material:

    1. S.2 OPA makes it an offence:
      • to publish an obscene article or
      • to have an obscene article for publication for gain.

      Mere possession is not an offence.

    2. An "article" is any description of article containing or embodying matter to be read or looked at both, any sound record, and any film or other matter of a picture or pictures. (OPA s.1(2))
    3. A person publishes an article if he:
      • distributes, circulates, sells, lets on hire, gives or lends it, or offers it for sale or for letting on hire; or
      • in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it or, where the matter is data stored electronically, transmits that data. (S.1(3) OPA - the words in bold being added by s.168 and Schedule 9 Criminal Justice and Public Order Act 1994. [CJPOA]).

      The word "transmits" is not well defined. It is not clear whether, for example, transmission can occur entirely within a single computer system; if not, there could be an argument that the entire Internet is a single "system". Similarly, it is not clear whether the person who "transmits" the data is the one who had the material before the transmission, or whether it is the one who causes the transmission to happen (this is particularly significant when applied to FTP and NNTP downloads).

    4. "Gain" is any publication with a view to gain whether by way of consideration or in any other way. (s.1(5) Obscene Publications Act 1964. [OPA 1964])
    5. If an obscene article is in a person's ownership, possession or control he is deemed to have it for publication for gain. (s.1(2) OPA 1964).

      That is, to use the defence that mere possession is not an offence, you must show that you don't intend to publish it for gain; the prosecution don't have to show that you do.

    6. There are defences under the OPA:
      • proving that the article had not been examined and there is no reasonable cause to suspect that publication would amount to an offence;
      • proving that publication is for the public good.
    7. Offences under s.2 OPA are arrestable offences and serious arrestable offences for the purposes of the Police and Criminal Evidence Act 1984 [PACE] (s.85 CJPOA).
    8. This gives the police a power to arrest a person without a warrant and to enter and search premises occupied or controlled by that person if there are reasonable grounds to suspect they contain evidence of an offence. (s.18 PACE).
    9. The police may seize evidence found on the premises searched. (s.19 PACE). In particular they "may require any information which is contained in a computer and is accessible from the premises to be produced in a form which it can be taken away and in which it is visible and legible ...".
    10. Premises include any vehicle, vessel, aircraft or hovercraft, offshore installation, tent or moveable structure. (s.23 PACE).
    11. Because s.2 OPA is a serious arrestable offence the police are given additional powers to investigate.
      • Setting up road checks - s.4 PACE
      • Obtaining a warrant to enter and search premises and seize and retain items authorised by the warrant - s.8 PACE
      • Obtaining an order from a circuit judge for production of and access to specified material - s.9 PACE. The Order is addressed to the person apparently in possession of the material. If the material is contained on a computer it must be produced in visible and legible form.
    12. Apart from arrest, there is power under s.3 OPA for the police to obtain a warrant to search for and seize obscene articles together with any documents relating to a trade or business carried on at the premises, stall or vehicle searched. As an alternative to criminal prosecution there is the option of forfeiture proceedings under s.3 OPA. These are civil proceedings and have a lower standard of proof (a balance of probabilities rather than beyond a reasonable doubt).
    13. S.42 of the Customs Consolidation Act 1876 prohibits the import of indecent or obscene material even where the defence of public good might be available. (Normally HM Customs and Excise rather than the CPS would conduct any prosecution.) HM Customs and Excise take the view that whilst physical importation of discs is covered electronic importation of material would not be.
  3. Indecent material:

    1. S.1 Protection of Children Act 1978 [PCA] makes it an offence:
      • to take, permit to be taken or make;
      • to distribute or show;
      • to have in one's possession with a view to distribution or showing by oneself or others;
      an indecent photograph or psuedo photograph of a child.

      (Distributing means parting with the possession of it to, or exposing or offering it for acquisition by another.)

    2. S.84 CJPOA made substantial amendments to s.1 PCA:
      • a "photograph" includes both negative and positive versions and data stored on a computer disc or by other electronic means capable of conversion into a photograph.
      • a "pseudo photograph" is an image whethermade by computer graphics or otherwise which appears to be a photograph and includes a copy of a pseudo photograph and data stored on a computer disc or by other electronic means capable of conversion into a pseudo photograph.
      • a "child" is a person under 16 i.e. appearing from the evidence as a whole to have been under 16 when the photograph was taken. If a subject in a pseudo photograph displays some of the characteristics of an adult that will be disregarded if the impression or predominant impression conveyed is that the subject is a child.

      I asked later about the reason for the inclusion of pseudo photographs. I was told that paedophiles often use photographs as a way of making children believe that "it's all right because other children do it too". Since pseudo photographs are equally suitable for this purpose, they were made equally illegal. The main thrust of the law in this area appears not to be to prevent production of the material (other legislation presumably already covers this, such as rape and indecent assault laws), but to ban the material because it can be used to entice children.

    3. Defences to s.1 PCA:
      • legitimate reason for possession, showing or distribution;
      • items not seen and no knowledge or cause to suspect them to be indecent.
      (PCA s.1(4))
    4. S.1 PCA is made both an arrestable offence and serious arrestable offence under PACE (s.85 CJPOA). The consequences mentioned at 2.7 - 2.11 above apply.
    5. The police can also obtain a warrant from a magistrate to enter and search premises and seize and remove any indecent photographs or pseudo photographs of a child. (PCA s.4)
    6. There is a forfeiture procedure similar to that in s.3 OPA in s.5 PCA.
    7. S.160 Criminal Justice Act 1988 [CJA] makes it an offence to possess an indecent photograph or pseudo photograph of a child. Again the term "pseudo photograph" was added by s.84(4) CJPOA and has the same meaning as in the PCA.
    8. Defences to s.160 broadly as for s.1 PCA plus
      • that the item was sent to him without any prior request and he did not keep it for an unreasonable time.

      I asked how it was possible to determine whether an allegedly indecent item actually is without "transmitting" it to a machine with a graphics display and "publishing" it to the person who actually makes the check (if not the person originally notified). I was told that if the transmission or publication is purely for this purpose, no offence is committed.

    9. S.160 CJA is a summary offence.
  4. Related laws:

    1. S.43 Telecommunications Act 1984 makes it an offence to send by a public telecommunications system a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. The penalty for this was increased by s.92 CJPOA to a level 5 fine and six months imprisonment but the offence remains summary.
    2. The Wireless Telegraphy (Content of Transmission) Regulations 1988 prohibit the use of wireless telgraphy equipment to send like messages but the maximum penalty under s.14(1A)(b) of the Wireless Telegraphy Act 1949 is only a level 3 fine.

      So you're better off downloading this stuff via a mobile phone than by a fixed line one.

    3. S.1 Computer Misuse Act 1990 [CMA] creates an offence of knowingly causing a computer to perform any function with intent to secure unauthorised access to any program or data held in any computer. The offence is summary only but s.4 CMA extends the territorial jurisdiction of the courts.

      If an ISP makes it a condition of service that nothing unlawful is done, then downloading illegal material becomes unauthorised access, and this Act then applies.

    4. S.10 CMA was amended by s.162 CJPOA and is to the effect that the police and others investigating offences do not commit any offence under CMA where consent to access the data or program is refused.

      Before this amendment, people were hiding illicit material behind notices of the form:
      Access prohibited to police and all government departments.
      after which, they could derail prosecutions and cause problems by claiming that the police had committed a criminal offence to get their evidence.

    5. There is an aggrevated offence under s.2 CMA but it does not apply to either s.2 OPA or s.1 CPA (both carry a maximum of three years imprisonment).
  5. Evidence: Section 69 PACE:

    1. In any proceedings a statement in a document produced by a computer shall not be admissible in evidence unless it is shown that, in essence, the computer was functioning properly and the statement appears to be accurate. This can be proved either by oral evidence or by a certificate in accordance with Schedule 3 of PACE. Any scope for limiting this provision has been removed by R. v Shephard [1993] A.C.

      I don't believe there is any requirement for someone to certify their own computer is working, particularly if to do so might provide evidence against them.

    2. The Law Commission has recently issued a Consultation Paper on, amongst other things, computer evidence. The Commission takes the view that s.69 PACE serves no useful purpose and should be repealed.
  6. Jurisdiction:

    1. Territorial jurisdiction attaching to statutory offences depends on the wording of the offence creating statute. OPA, OPA 1964 and CPO only apply in England and Wales. Treason apart, foreigners are not liable under English law for an offence committed on land abroad. [Archibold Vol 1 para 2-38].

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