Oliver & Ors, R. v, Court of Appeal - Criminal Division, November 21, 2002, [2002] EWCA Crim 2766

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SMITH BERNAL

No. 2002/04477/Z3

2002/04164/X2 & 2002/02052/X1

Neutral Citation Number: [2002] EWCA Crim 2766

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2A 2LL

Date: Thursday 21 November 2002

B e f o r e:

THE VICE-PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION

(LORD JUSTICE ROSE)

MR JUSTICE GIBBS

and

MR JUSTICE DAVIS

__________________

R E G I N A

- v -

MARK DAVID OLIVER

MICHAEL PATRICK HARTREY

LESLIE BALDWIN

__________________

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4

Telephone 020-7421 4040

(Official Shorthand Writers to the Court)

__________________

THE APPLICANT OLIVER was not represented and did not appear

MISS R DRAKE appeared on behalf of THE APPLICANT HARTREY

MR GAJ HOOPER appeared on behalf of THE APPELLANT BALDWIN

MR M DENNIS appeared on behalf of THE CROWN

____________________

J U D G M E N T

LORD JUSTICE ROSE:

1. In R v Wild (No 1) [2002] 1 Cr App R(S) 157, this court sought the views of the Sentencing Advisory Panel in relation to offences involving indecent photographs and pseudo-photographs of children, particularly in relation to the question as to when the custody threshold should be regarded as having been passed. As a result of that request, in August 2002 the Panel published its advice to the Court of Appeal. That has been the subject of consideration today. At the court's request, the Crown were represented by Mr Dennis. He made no submissions. We are grateful for the Panel's advice and, as will emerge, save in one or two respects, we adopt it.

2. In R v Toomer [2001] 2 Cr App R(S) 30, the Court of Appeal set out some general principles applicable to sentencing for these kinds of offence, but since that decision the maximum penalties for the relevant offences have been increased by Parliament.

3. The statutory position is that, by virtue of section 1(1) of the Protection of Children Act 1978, it is an offence, in essence, to take or make an indecent photograph or pseudo-photograph of a child, or to distribute or show such photographs, or to possess such photographs with a view to their being distributed or shown, or to publish an advertisement conveying that the advertiser distributes or shows such photographs or intends to do so.

4. The maximum penalty for all of those offences, which was originally three years on indictment, was increased to ten years by section 41(1) of the Criminal Justice and Court Services Act 2000 in relation to offences committed on or after 11 January 2001.

5. The offence of possessing an indecent photograph or pseudo- photograph of a child under section 160(1) of the Criminal Justice Act 1988 was originally a summary offence with a maximum penalty of six months' imprisonment. But by virtue of section 41(3) of the Criminal Justice and Court Services Act 2000, it became an offence triable either way with a maximum penalty of five years' imprisonment. That provision likewise applies to offences committed on or after 11 January 2001.

6. Quite apart from the sentence imposed by the court, anyone convicted of or pleading guilty to an offence involving child pornography may be subject to a range of other legal consequences: namely, registration under Part 1 of the Sex Offenders Act 1997; court-ordered disqualification from working with children under sections 26-34 of the Criminal Justice Act and Court Services Act 2000; a list known as 'List 99' maintained by the Department of Education and Skills under the Education (Restriction of Employment) Regulations 2000 of people barred or restricted from employment as a teacher or worker with persons under the age of 19; and a list maintained by the Department of Health under the Protection of Children Act 1999 to prevent the employment of unsuitable people in child-care organisations.

7. It is to be noted that registration under the Sex Offenders Act is mandatory for all offenders sentenced or cautioned for a qualifying offence, which includes any of the offences to which we have referred under section 1 of the Protection of Children Act 1978 or section 160 of the Criminal Justice Act 1988. But there is no requirement to register for an offender who is given a discharge, whether absolute or conditional. Further, offences under both the 1978 and the 1988 Acts are qualifying offences for court-ordered disqualification from working with children if a custodial sentence of 12 months or longer is imposed.

8. In that statutory context, before turning to the Panel's proposals, it is worth pointing out that it is likely that the number of child pornography offences detected and prosecuted is only a small proportion of the real total. Furthermore, increased access to the internet has greatly exacerbated the problem in this area by making pornographic images more easily accessible and increasing the likelihood of such material being found accidentally by others who may subsequently become corrupted by it. This additional risk adds to the culpability of offenders who distribute material of this kind, especially if they post it on publicly accessible areas of the internet.

9. We agree with the Panel that the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender's involvement with it.

10. 10. As to the nature of the material, it will usually be desirable for sentencers to view for themselves the images involved, unless there is an agreed description of what those images depict. Subject to one matter, we accept the Panel's analysis of increasing seriousness by reference to five different levels of activity, derived from the COPINE Project's description of images. We do not that agree with the Panel that COPINE typologies 2 and 3 are properly within Level 1. As it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. Accordingly, with that amendment to the Panel's proposals, we categorise the relevant levels as:

(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality.

11. As to the nature of the offender's activity, the seriousness of an individual offence increases with the offender's proximity to, and responsibility for, the original abuse. Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims.

12. Merely locating an image on the internet will generally be less serious than down-loading it. Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity. We agree with the Panel that the choice between a custodial and non-custodial sentence is particularly difficult. On the one hand, there is considerable pressure, demonstrated by Parliament increasing the maximum permissible sentence, to mark society's abhorrence of child sexual abuse and child pornography by the use of custody. On the other hand, there is evidence that sex offender...

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