‘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.