Criminal Justice Act 1988, s. 160; Criminal Justice and Court Services Act 2000, ss 41(1) and (3); Protection of Children Act 1978, s. 1; downloading from the internet; legitimate purpose; pornographic images; pseudosentencing

(c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or

(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

(2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or

(c) that the photograph or pseudo-photograph was sent to him with any prior request made by him or on his behalf and that he did not keep it, for an unreasonable time.

The court gave guidelines in relation to offences under s. 1(1) of the Protection of Children Act 1978 and s. 160(1) of the Criminal Justice Act 1988 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.

For the purposes of sentencing those convicted of offences involving indecent photographs or pseudo-photographs of children, the two primary factors determinative of the seriousness of a particular offence were the nature of the indecent material and the extent of the offender's involvement in it.

As to the material, pornographic images were to be categorised by the following levels of seriousness: (i) images depicting erotic posing with no sexual activity; (ii) sexual activity between children, or solo masturbation by a child; (iii) non-penetrative sexual activity between adults and children; (iv) penetrative sexual activity between children and adults, and (v) sadism or bestiality. As to the nature of the offender's activity, the seriousness of an individual offence increased with the offender's proximity to, and responsibility for the original abuse.

The maximum penalty for those offences had been increased, by virtue of ss 41(1) and (3) of the Criminal Justice and Court Services Act 2000, in relation to offences under the 1978 Act, to 10 years' imprisonment and, in relation to offences under the 1988 Act, to five years' imprisonment. The new provisions applied to offences committed on or after 11 January 2001.

A fine would normally be appropriate in a case where the offender was merely in possession of material solely for his own use. This would include cases where material was downloaded from the internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children, or there was no more than a small quantity of material at level (i).

Possession, including downloading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children.

But there might be exceptional cases in which the possession of a pseudo-photograph was as serious as the possession of a photograph of a real child, for example where the pseudo-photograph provided a particularly grotesque image generally beyond the scope of a photograph.

It was also to be borne in mind that, although they lacked the historical element of likely corruption of real children depicted in photographs, pseudo-photographs might be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable and therefore to have equally corrupting effect.

Their Lordships agreed with the Sentencing Advisory Panel that a community sentence might be appropriate in a case where the offender was in possession of a large amount of material at level (i) and/or no more than a small number of images at level (ii), provided the material had not been distributed or shown to others.

For an offender with the necessary level of motivation and cooperation, the appropriate sentence would be a community rehabilitation order with a sex offender programme. Their Lordships also agreed with the panel that the custody threshold would usually be passed where any of the material had been shown or distributed to others, or, in cases of possession, where there was a large amount of material at level (ii), or a small amount at level (iii) or above.

A custodial sentence of up to six months would generally be appropriate in a case where: (a) the offender was in possession of a large amount of material at level (ii) or a small amount at level (iii); or (b) the offender had shown, distributed, or exchanged indecent material at level (i) or (ii) on a limited scale, without financial gain.

A custodial sentence of between six and 12 months would generally be appropriate for (a) showing or distributing a large number of images at level (ii) or (iii); or (b) possessing a small number of images at levels (iv) or (v).

In relation to more serious offences, a custodial sentence between 12 months and three years would generally be appropriate for: (a) possessing a large quantity of material at levels (iv) or (v), even if there was no showing or distribution of it to others; or (b) showing or distributing a large number of images at level (iii); or (c) producing or trading in material at levels (i) to (iii).

Sentences longer than three years should be reserved for cases where: (a) images at levels (iv) or (v) had been shown or distributed; or (b) the offender was actively involved in the production of images at levels (iv) or (v), especially where that involvement included a breach of trust, and whether or not there was an element of commercial gain; or (c) the offender had commissioned or encouraged the production of such images.

An offender whose conduct merited more than three years would merit a higher sentence if his conduct was within more than one of categories (a), (b) and (c) than one where conduct was within only one such category.

Sentences approaching the 10-year maximum would be appropriate in very serious cases where the defendant had a previous conviction for either dealing in child pornography, or abusing children sexually or with violence.

Previous such convictions in less serious cases might result in the custody threshold being passed and would be likely to give rise to a higher sentence where the custody threshold had been passed. An extended sentence might be appropriate in some cases, even where the custodial term was quite short (see R v Nelson (2002] 1 Cr App R(S) 565).

(3) The way in which a collection of images was organised on a computer might indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence would be less serious if images had been viewed but not stored.

(4) Images posted on a public area of the internet, or distributed in a way making it more likely they would be found accidentally by computer users not looking for pornographic material, would aggravate the seriousness of the offence.

(5) The offence would be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender's own family, or were drawn from particularly vulnerable groups, such as those who had left or had been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender had abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.

(6) The age of the children involved might be an aggravating feature. In many cases it would be difficult to quantify the effect of age by reference to the impact on the child. But in some cases that impact might be apparent. For example, assaults on babies or very young children attracted particular repugnance and might, by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct might manifestly, that was to say, apparently from the image, have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, 6 or 7.

So far as mitigation was concerned, their Lordships agreed with the panel that some, but not much, weight should be attached to good character.

Such offences very rarely resulted in the prosecution or cautioning of offenders under the age of 18. When such a person had to be sentenced, the appropriate sentence was likely to be a supervision order with a relevant treatment programme.

Their Lordships drew attention, however, as did the panel, to the apparent present shortage of adequate treatment programmes for young sex offenders.

The Court of Appeal, Criminal Division, so held in refusing an application for leave to appeal against sentence by Oliver who pleaded guilty before magistrates in May 2002 to six offences of making indecent photographs or pseudo-photographs of a child and was sentenced at Crown Court on 5 July 2002 to an extended sentence under s. 85 of the Powers of Criminal Courts (Sentencing) Act 2000, consisting of a custodial term of eight months and an extended licence period of 28 months.

The court also refused the application for leave to appeal against sentence by Hartrey, who pleaded guilty before magistrates in April 2002 to one charge of distributing an indecent photograph or pseudo-photograph of a child, and one charge of making an indecent photograph or pseudo-photograph of a child and was sentenced at Crown Court on 7 June 2002 to concurrent terms of three years' and one year's imprisonment respectively.

The court dismissed the appeal against sentence by Baldwin who pleaded guilty in July 2001 at the Central Criminal Court to four counts of indecent assault on a female, four counts of taking indecent photographs of a child and two counts of distributing indecent photographs of a child for which he was sentenced to a total of three years' imprisonment.

The Criminal Justice Act 1988 makes it an offence simply to possess an indecent photograph of a child. A person will be a 'child' for the purposes of both Acts above if it appears from the evidence as a whole that he/she was, at the material time, under the age of 16 (Protection of Children Act 1978, s. 2(3) and Criminal Justice Act 1988, s. 160(4)).

Once the defendant realises, or should realise, that material is indecent, any distribution, showing or retention of the material with a view to its being distributed will probably result in an offence under the 1978 Act if the person depicted turns out to be a child (R v Land [1999] QB 65). This is because s. 160(4) provides no defence of mistake as to a child's age.

If the impression conveyed by a pseudo-photograph is that the person shown is a child or where the predominant impression is that the person is a child, that pseudo-photograph will be treated for these purposes as a photograph of a child, notwithstanding that some of the physical characteristics shown are those of an adult (s. 7(8) of the 1978 Act).

Tseudo-photographs' include computer images and the above offences will cover the situation where part of the photograph is made up of an adult form.

Downloading images from the internet will amount to 'making' a photograph for the purposes of s. 1(1)(a) of the 1978 Act (R v Bowden [2000] 2 WLR 1083). Making' pseudo-photographs includes voluntarily browsing through indecent images of children on and from the internet (R v Smith and Jayson (2002) The Times, 3 April. In Smith and Jayson the Court of Appeal held that a person receiving an unsolicited email attachment containing an indecent image of a child would not commit an offence under s. 1(1) by opening it if he/she was unaware that it contained or was likely to contain an indecent image. This was because s. 1(1)(a) does not create an absolute offence.

A legitimate purpose for possessing such material might be where someone has the material as an exhibits officer or as a training aid for police officers or social workers.