"Internet Law Book Reviews" Provided by Rob Jerrard LLB LLM
Indecent Photographs
By Rob R Jerrard LLB LLM (London)
Thursday 20th November 1997
Indecent Photographs Motives and Admissibility
Today's headlines read "INDECENT photographs of children have been seized by police investigating claims that the veteran popstar Gary Glitter was in possession of child pornography."
The pictures were discovered at a London address after staff at a computer store claimed to have found explicit pictures of children on a computer that the performer had taken in for repair. Mr Glitter, was arrested at when he arrived to collect it.
Officers searched his homes and seized a number of videoas well as "numerous indecent photographs of children".
Mr Glitter has now been released on police bail pending further inquiries concerning indecent photographs of children. Officers searched a house in Somerset, using powers under the Police and Criminal Evidence Act and a number of videos were seized.
A member of Scotland Yard's computer crime squad is reported to have said, that Technicians who discovered illegal material in the course of fixing a home computer were within their rights provided they did not break a password or encryption code to get it,
Those familiar with computers will know that it is possible to "Undelete" material that has been "Erased".
Without prejudging the case it is possible to look at the likely outcome of cases of this nature. It will be interesting to see if any charges arise whether any of the following issues are raised in any defence.
Secret motive?
Such a question only arises in prosecutions of those who assault or take photographs of children. It is not of relevance in cases of persons who distributed indecent photographs.
This secret motive question was discussed in R v Court [1989] AC 28, 1988, The Times, May 3, where the House of Lords decided that in a case of assault which was ambiguous with regard to whether or not it was an indecent assault, evidence of secret motive, (first hearsay statement to a police officer was relevant and admissible in determining whether the assault was indecent or not.
The particulars of the case were as follows. Court, had asked a 12girl when she visited the shop, if she would let him spank her. She said "No". Thereupon he seized her, pulled her over his knee and spanked her 12 times on her buttocks.
He pleaded guilty to the assault, but denied that it was indecent. He was convicted of indecent assault, by the Crown Court. He appealed first to the Court of Appeal and then to the House of Lords on the grounds that his answers to the police i.e. "buttock fetish" should have been excluded as being a secret uncommunicated motive which had not been communicated to the victim of the assault and could not therefore make indecent an assault which of itself was not overtly indecent.
The Lords held that on a charge of indecent assault where the circumstances of the alleged offence could be given an innocent as well as an indecent interpretation, evidence of the accused's evidence of assaulting the victim, whether or not it was revealed as an innocent motive, was admissible both to support or negative that the assault was an indecent one and was so intended by the accused.
Secret motive in photograph cases
In considering photograph cases, secret motive is not an essential ingredient. In R v GrahamCourt of Appeal, 1988 1 WLR 1098,The Times, July 12 Graham Kerr was charged with taking indecent photographs of a seven year old boy contrary to 5 1(1)(a) of the Protection of Children Act 1978. A boy of seven, was swimming in the baths with his parents. The general public were not admitted to the baths that evening as the family were nudists (naturists). Gcame up and said he would give the boy some swimming lessons. Some photographs were taken by the official photographer with the permission of the parents. G with his own camera took two pictures of the boy in the changing rooms without the parents' knowledge or permission.
The relationship between Indecent photographs and indecent assault
Many prosecutions in the UK have concentrated on those who indecently assault young children, on those who take indecent photographs of children and also on those who sell and.'or distribute such material.
The maximum sentence in such cases is 3 years' imprisonment. Most cases result in a shorter sentence of imprisonment and/or a fine. In Mcguigan (1996) 2 Cr App R (S) 253 a sentence of 12 months' was appropriate in respect of a 'small scale commercial pornographer' who pleaded to six cases of possessing indecent photographs of a child. In Owen 1988 86 Cr App R 291, a conviction was upheld against a man who took a series of semi nude photographs of a girl of 14. Owen was convicted under the 1978 Act "It is an offence to take, permit to be taken an indecent photograph of a child". Owen received a suspended sentence and was fined £1,000.
In Russell (1986) 8 Cr App R (S) 367, two years was reduced to 18 months for a man who distributed indecent photographs of children which were in the words of the court, "extremely filthy photographs of children performing the sort of acts which we regularly unfortunately see adults performing in these indecent photographs".
In R v Gavin (1986) Cr App R (S) 211. a 12 month sentence of imprisonment was upheld on a man convicted of both indecent assault and taking indecent photographs involving boys between
8 and 12
In Jackson (1987) Cr App R (S) 294, the appellant's sentence of 10 years was reduced to four on appeal. Performing acts of coprophilia in front of children resulted in a long sentence from the courts. In this case, several young girls between 11 13 were swimming in a pond, for payment he committed a series of indecent assaults upon them. He asked them to urinate and put faeces into a cup; he then went on to drink the concoction.
Evidence of a paedophilic interest
Critics are divided over whether or not there is a direct relationship between child porn and the commission of indecent assault on a child.
Defence medical evidence in such cases is notorious in putting forward the theory that child porn is therapeutic and diverts potential molesters away from the real thing. Some have argued that such material can incite persons to imitate what they see on celluloid. Courts have been divided over the admissibility of a paedophilic interest in cases of indecent assault.
In Lewis (1982) 76 Cr App Rep 33 such evidence of a paedophilic interest could only be admitted following the defendant's defence of innocent association. Here, a stepfather was convicted of indecent assault after pleading innocent association and accident in his defence. He had committed a series of offences against two of his step-twin girls of age 10, including masturbating in front of them, fondling them, rubbing a towel between their legs and whilst urinating in the toilet whilst they were in the bath he shook his penis at them, wherein drops of urine fell on them.
At the trial, evidence of his involvement with a paedophile group, interest in Magpie, a magazine for paedophiles was admitted to rebut his defence of and an interest in child pornography innocent association.
Rob Jerrard
Thursday 20th November 1997