Indecent pseudo-photograph of a child

Legal

In England and Wales, the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978, adding the concept of pseudo-photographs to the statute books. Similar legislation in Scotland is contained in the Civic Government (Scotland) Act 1982, which was also amended by the 1994 Act.

Indecent pseudo-photograph of a child

The Law

Definition of Child

According to section 7 of the Protection of Children Act 1978,

The Sexual offenses Act 2003 changed the definition by raising the age to 18.

Definition of Pseudo-photograph

According to section 7 of the Protection of Children Act 1978,

(7) 'Pseudo-photograph' means an image, whether made by computer graphics or otherwise howsoever, which appears to be a photograph.

(8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(9) References to an indecent pseudo-photograph include-

(a) a copy of an indecent pseudo-photograph; and

(b) data stored on a computer disc or by other electronic means which is capable of conversion into a pseudo-photograph.

offenses

In relation to indecent pseudo-photographs of children, section 1 of the 1978 Act makes it an offense for a person to (a) make them; (b) distribute or show them; (c) possess them with a view to distributing or showing them; or (d) advertise that they are shown or distributed; and section 160 of the Criminal Justice Act 1988 makes it an offense simply to possess indecent pseudo-photographs of children.

Indecency

With regard to British law, whether a 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 is supposed to apply the standard of decency that ordinary right-thinking members of the public would set - the "recognised standards of propriety" as R v. Stamford [1972] puts it. However this was at least partially superseded following at attempt by the Sentencing Advisory Panel to substantially lower the criminal threshold. That prompted a consortium of the major UK child protection charities to write to the Lord Chief Justice pointing out the flawed logic behind the recommendation and how offensive it would be to many people. Shortly afterwards, in R. v. Oliver [2002], the Court of Appeal overruled the Sentencing Advisory Panel and clarified the law considerably. "neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image". The lowest level of offending image was defined as "images depicting erotic posing with no sexual activity".

Introduction of the concept of pseudo-photographs

The concept of pseudo-photographs was created to cover a perceived lacuna that was thought to make the law impotent in the case of manipulated photographs.

In 1993/4, it was reported to the Home Affairs Select Committee that the Crown Prosecution Service were advising against prosecution in such cases since there was considerable doubt whether a manipulated photograph was an indecent photograph of a child for the purposes of the 1978 Act. The case of Shakespeare was given as example, in which indecent images had been created by adding the head of a female child to an adult body.

Images created by digital manipulation were of particular concern - for example, a photograph of an adult can be edited using computer software such as MS Paintbrush or Adobe Photoshop to add the head of a child or have certain features changed (e.g. smaller genitalia). This altered photograph would give the appearance of a child (Wasik & Taylor, 1995, Chap 5.9).

Sub-sections 84(2) and 84(3) of the Criminal Justice and Public Order Act 1994 amended the Protection of Children Act 1978 to create the offense of making an indecent pseudo-photograph of a child and to bring pseudo-photographs within the scope of the other offenses under the 1978 Act.

In the 2002 discussions on measures to harmonise European Union Member States' legislation on the sexual exploitation of children and child pornography, the British Conservative MEP Timothy Kirkhope lobbied for the inclusion of pseudo-photographs in any new EU rules, saying that the creators of such things as detailed, cartoon-like pictures of children in indecent poses would still "exploit" and "end up abusing children". (The Sprout)

According to Kirkhope, "Pseudo-photographs are technically photographs, but they are created by computer software such as MS Paintbrush by using more than one picture" (apparently quoting Yaman Akdeniz, Cases & Materials).

Justification

While the creation of a pseudo-photograph would not involve a child in any indecent activity, such images were said to excite paedophile tendencies in adults equally as much as real photographs (Le Hérissier).

Another justification for the introduction of the concept of pseudo-photography was that such an image might lead to an investigation to ascertain whether or not the child shown in it was actually abused (Wasik & Taylor) - this would obviously cause great distress to the child and family involved, and would be a waste of valuable police resources.

Pedophiles were said to use photographs as a way of making children believe that "it's all right because other children do it too" and pseudo-photographs were thought to be just as suited to this purpose (Feather).

It was also claimed that indecent pseudo-photographs would have to be criminalized or their existence would make the prosecution of indecent real photographs impossible since it would be difficult to distinguish between real photographs and manipulated images (Akdeniz, Governance). UK police were said to believe that those who make pseudo-photographs or possess them go on to abuse children - from that point of view, making or obtaining possession of pseudo-photographs are acts preparatory to abuse.

Making a pseudo-photograph

The Protection of Children Act 1978 (as amended) does not define how a pseudo-photograph is made. This is to avoid the Act being limited to covering only known forms of making images. In this way, as yet unthought-of forms of image production are intended to be covered.

While Act does not define how a pseudo-photograph IS made, it does tell us how it is NOT made: a pseudo-photograph is NOT taken.

It is a presumption of statutory interpretation that different words have different meanings and it was thought necessary to add the concept of pseudo-photography to the legislation. Since Parliament does nothing in vain, a pseudo-photograph is not a photograph.

The Oxford Concise English Dictionary defines a photograph as "a picture made by a camera". A pseudo-photograph, then, is an image that appears to be a photograph but which was not made with a camera.

Indecent pseudo-photograph of a child