by Dan Bunting
It is not just people that struggle to keep up with technology, but the law itself often lags behind. We have seen that on numerous occasions with the “Twitter prosecutions”, and had another example of that this week, when the Daily Mirror highlighted the story of “Alison” and “’Peter” (both pseudonyms) a couple aged 17 and 22 respectively.
This gave an example of a little known anomaly in the law that was introduced in 2004. Prior to that, in English and Welsh law, the age of consent for sexual activity (16) was the same as the age of “consent” for the subject of indecent images.
By virtue of s45 Sexual Offences Act 2003, the Protection of Children Act 1978 (which criminalises indecent images of children) was amended so as to increase the age of the definition of “child” from 16 to 18.
There was a special defence if the “child” consents to the photography and is aged over 16. Further, this will only apply if the couple are married or living “together as partners in an enduring family relationship” and it is intended only for their benefit rather than for onward distribution.
For this reason, when Alison took intimate photographs of herself and sent them to Peter, she was committing an offence of taking, and also of distributing, indecent images/child pornography. Peter would be guilty of possessing such images.
It seems that due to her age Alison was not prosecuted, which can only be a sensible conclusion. Peter was not so fortunate – he is being prosecuted for possession of indecent images – a crime for which he can get up to 10 years’ imprisonment and a place on the Sex Offenders Register. It is not hyperbole to say that, even if a nominal penalty is imposed, this will cast a shadow over his life.
Why did the government introduce this change? The answer probably lies in the Second Optional Protocol to the UN Convention on the Rights of the Child. The UK opted in to this Protocol, which is designed to combat child prostitution and the trafficking of children for sexual exploitation, and other serious crimes. As part of this (Art 2(c)), child pornography, which means “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities or any representation of the sexual parts of a child for primarily sexual purposes,” is outlawed.
The Convention on the Right of the Child defines a child as someone aged under the age of 18 (unless the age of majority is different in the signatory country). It is clear that this was not designed to combat teenagers taking consensual selfies of themselves, however there seems to have been relatively little debate in the UN about the consequences of a wholesale adoption of the Second Protocol.
The Swedish delegate stated that “the word “representation” in the definition of child pornography in article 2 (c) to cover only visual representation. Secondly, still regarding article 2 (c), Sweden interprets “any representation, by whatever means, of a child engaged in real or simulated explicit sexual activities” not to be applicable to adults acting, posing or dressing as a child.” This appears to have been the limit of debate on unintentional consequences.
The Explanatory Notes to the 2003 Act do not give a rationale for the change in age from 16 to 18, but again, it is hard to see that this was intended to cover the situation outlined above. Although on the face of it, criminalisation of Peter in these circumstances would seem to be a clear violation of Art 8, and quite possibly Art 10; and the Court of Appeal gave this argument very short shrift in DM  EWCA Crim 2752.
As time goes by, it is to be expected that this position will only get worse. No doubt in many cases the CPS will exercise some common sense, but if the history of CPS discretion has taught us anything, then it is that CPS discretion is not foolproof. It is certainly not a substitute for legislative change, as is currently being campaigned for by Backlash and others.
It is clear that this is a matter that needs to be reviewed, it may well be that this is a prime candidate for an area where the CPS should issue policy guidelines as to when a case should be prosecuted. It would be suggested that this includes, at a minimum, a condition that where the activity involves images sent between two people of one of them, then a prosecution (or caution) would not be in the public interest if the person is aged over 16.