Sexual Offences Act 2003 (SOA 2003)
The following sections are pertinent
extracts from the Sexual Offences Act 2003 (SOA 2003), which came into
force on the 1st May 2004. The Act amends parts of the Protection of
Children Act 1978 accordingly. A complete version of the SOA 2003 is
available here 
.
S. 45 Indecent photographs of persons aged 16 or 17.
The Protection of Children Act 1978 – meaning of “child” - increased from 16 to 18 years of age.
S. 46 Criminal proceedings, investigations.
In proceedings for an offence under section 1(1)(a) Protection of Children Act 1978 of making an indecent photograph or pseudo-photograph, the defendant is not guilty of the offence if he proves that –
It was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world.
Extract from draft Home Office Guidelines on the SOA 2003
S. 45 Indecent photographs of persons aged 16 or 17.
8.1 Section 45 amends the Protection of Children Act 1978 so that
the offences under that Act of taking, making, permitting to take,
distributing, showing, possessing with intent to distribute, and
advertising indecent photographs or pseudo-photographs of children will
now also be applicable where the photographs concerned are of children
of 16 or 17 years of age. The same change applies to the offence of
possessing an indecent photograph or pseudo-photograph of a child at
section 160 of the Criminal Justice Act 1988 (section 160(4) applies the
1978 Act definition of “child”).
8.2 The section is intended to provide additional protection to
children of this age particularly from widespread dissemination of
photographs, not least since once they are distributed on the internet
they can never be recalled. It was believed, however, that use of
photographs within an established relationship should not be
criminalised, and therefore the section also creates a number of
conditions which if satisfied will mean that the defendant is not guilty
of an offence under section 1(1)(a), (b) or (c) of the 1978 Act
(provided that the offence charged relates to a photograph and not a
pseudo-photograph).
8.3 The conditions in relation to an offence under section 1(1)(a)
of the 1978 Act (taking or making indecent photographs) are as follows:
- Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that at the time of the taking or making of the photograph he and the child were married or living together as partners in an enduring family relationship (section 1A(1)).
- Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child consented (section 1A(4)).
- Thirdly, the photograph must not be one that shows a person other than the child and the defendant (section 1A(3)).
8.4 If any of these conditions is not satisfied, the prosecution
need only prove the offence as set out in section 1(1)(a) of the 1978
Act. But if the three conditions are satisfied, the defendant is not
guilty of the offence unless the prosecution also prove that the child
did not consent and that the defendant did not reasonably believe that
the child consented (section 1A(4)).
8.5 The conditions in relation to an offence under section 1(1)(b)
of the 1978 Act (distributing or showing indecent photographs) are as
follows:
- Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over, and that either at the time of distributing or showing it, or at the time of obtaining it, he and the child were married or living together as partners in an enduring family relationship (section 1A(1) and (2)).
- Secondly, the photograph must not be one that shows a person other than the child and the defendant (section 1A(3)).
8.6 If either of these conditions is not satisfied, the
prosecution need only prove the offence as set out in section 1(1)(b) of
the 1978 Act. But if both the conditions are satisfied, the defendant
is not guilty of the offence unless the prosecution prove that the
showing or distribution was to a person other than the child (section
1A(5)).
8.7 The conditions in relation to an offence under section 1(1)(c)
of the 1978 Act (being in possession of indecent photographs with a
view to their being distributed or shown) are as follows:
- Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that either at the time of his possession of it with a view to distributing or showing it, or at the time when he obtained it, he and the child were married or living together as partners in an enduring family relationship (section 1A(1) and (2)).
- Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented (or the defendant reasonably believed that the child consented) to the photograph's being in the defendant's possession, and also as to whether the defendant had the photograph in his possession with a view to distributing or showing it to a person other than the child (section 1A(6)).
- Thirdly, the photograph must not be one that shows a person other than the child and the defendant (section 1A(3)).
8.8 If any of these conditions is not satisfied, the prosecution
need only prove the offence as set out in section 1(1)(c) of the 1978
Act. But if the three conditions are satisfied, the defendant is not
guilty of the offence unless the prosecution also prove either that the
child did not so consent and that the defendant did not reasonably
believe that the child so consented, or that the defendant had the
photograph in his possession with a view to its being distributed to a
person other than the child.
8.9 Similar provision is made in relation to an offence under
section 160 of the Criminal Justice Act 1988 (possession of indecent
photograph of a child). The conditions are as follows:
- Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that at the time when he possessed the photograph, or at the time when he obtained it, he and the child were married or living together as partners in an enduring family relationship (section 160A(1) and (2)).
- Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented to the photograph being in his possession or as to whether the defendant reasonably believed that the child so consented (section 160A(4)).
- Thirdly, the photograph must not be one that shows a person other than the child and the defendant (section 160A(3)).
8.10 If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in section 160 of the Criminal Justice Act 1988. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution prove that the child did not consent and that the defendant did not reasonably believe that the child consented (section 160A(4)).
S. 46: Criminal Proceedings, Investigations etc.
8.11 Section 46 creates a limited defence to the offence of
“making” an indecent photograph or pseudo-photograph of a child, under
section 1(1)(a) of the Protection of Children Act 1978. “Making” covers,
for example, the situation where a person downloads an image from the
Internet or copies a computer hard drive. The defence applies where a
person “making” such a photograph or pseudo-photograph can prove that it
was necessary for him to do so for the purposes of the prevention,
detection or investigation of crime, or for the purposes of criminal
proceedings. The defence also applies to a member of the Security
Service or GCHQ (Government Communications Headquarters) who can prove
that it was necessary for him to “make” the photograph or
pseudo-photograph for the exercise of the functions of the Security
Service or GCHQ.
8.12 This defence is intended to reassure people such as police
officers, staff of the Internet Watch Foundation, and staff in ISPs and
systems management who have a role in identifying and securing such data
for evidential and investigative purposes, that they can do so without
fear of prosecution. The creation of the defence is not intended to
encourage individuals to undertake their own unauthorised
investigations. Unauthorised investigation of indecent photographs of
children on the internet is not merely unnecessary, but can be actively
harmful. The test of “necessity” provides a tight restriction on the
defence, and some further explanation for those for whom it is intended
was thought to be needed on the application of the defence. The CPS and
ACPO have therefore prepared a memorandum of understanding setting out
how they will satisfy themselves that the defence applies in particular
cases.
Memorandum of Understanding Between the Crown Prosecution Service (CPS) and the Association of Chief Police Officers (ACPO) concerning Section 46 Sexual Offences Act 2003.
This memorandum identifies when protection will be provided to
those using public electronic communications networks and services are
likely to face jeopardy for criminal offences whilst helping to combat
the creation and distribution of images of child abuse.
This memorandum has been created within the context of child protection, which will always take primacy.
To find out more and to access the MOU to S.46 click here
