Yesterday, after appearing at Highbury Corner Magistrates’ Court, I stopped on the way home at the motorway services for some lunch. As I enjoyed some extra hot chicken, macho peas and sweet potato wedges (anyone want to guess which restaurant I stopped at?) I read the newspaper and came across a story about sexting teenagers.
On page 15 was a story with the same title as this blog post. The point being made in the newspaper is that sexting teenagers who take sexual photographs of themselves are “guilty of creating child pornography.” At this point, I’d like to stress that there are images of child abuse and then there is pornography. The two are not the same thing and we do not talk of “child pornography”. Anyway, later the story continues, “… a schoolgirl received a police caution after sending an explicit photograph of herself to her boyfriend…”
Police cautions
If you don't know, a police caution is a form of case disposal in which the suspect confesses to an offence. A caution can only be administered where the suspect would be likely to be convicted if the case went to court – at the very least I’d contend that conviction has to be at least possible in law.
There are youth versions called reprimands and final warnings. It's more likely that the sexting teenager in the newspaper was given a reprimand than an adult caution. Nonetheless, the child must confess to a crime and a conviction must be likely if tried.
Usually, a person confessing to making indecent images of children would not be cautionable as the offence is too serious.
What is the law on child abuse images?
The law is more complex than what you are about to read. I have simplified the law for ease of reading.
It is an offence under section 1 of the Protection of Children Act 1978 make, possess or publish an indecent photograph of a child. The law defines a child as somebody below 18 years old. Although there is a defence if the people involved are married, because of course a 16 or 17-year-olds can legally have sex and marry. This may make you wonder why this protection was necessary or why, if it is necessary, the Government of the day did not raise the ages of consent and marriage but there you go.
Whether a photograph is indecent or not is a judgement for a jury to make. This means that the definition of “indecent” will change through the ages. An image deemed indecent in 1978 may be unremarkable today or vice versa. Clearly, some images are obviously indecent and there is a scale for those that runs from sadomasochism and bestiality down to those images on the cusp of indecency. That’s a post for another day.
Is taking a photo of yourself a crime?
The answer here is “no”. Because of those prudish Victorians we can say that as the child is the victim of child sexual offences the sexting teenager cannot commit the offence against themselves.
The law
In 1885, Parliament created the age of consent by criminalising sex with a girl who was under 16 years of age.
In 1893, Jane Tyrrell was aged between 13 and 16-years when she agreed to have sex with Thomas Ford. As any good Victorian prosecutor would do, she was charged with aiding and abetting his “having unlawful carnal knowledge of her” and she was convicted at the Old Bailey.
Jane Tyrrell appealed her conviction in a case known as R v Tyrrell [1894] 1 QB 710. The Crown Cases Reserved Court (a now defunct Victorian criminal appellate court) unanimously quashed her conviction. In giving judgment Lord Coleridge CJ pointed out that the intention of Parliament in passing the 1885 Act was to protect women and children (he actually said the Act “… was passed with the intention of protecting women and girls from themselves.” He used that line twice.). He concludes that “… it is impossible to say that the Act… can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.”
Matthew, J. was even clearer in condemning the prosecution’s position when he said, “I am of the same opinion. I do not see how it would be possible to obtain convictions under the statute if the contention for the Crown were adopted, because nearly every section which deals with offences in respect of women and girls would create an offence in the woman or girl. Such a result cannot have been intended by the legislature. There is no trace in the statute of any intention to treat the woman or girl as criminal.” Incidentally, Victorian judges were far more succinct than their modern counterparts – that is word for word the entire judgment by Matthew J! These days it would probably run to 30 pages.
Conclusion
So, we need to ask ourselves whether, in passing the Protection of Children Act 1978 Parliament intended to criminalise the very children it was seeking to protect? I think the answer to that is an obvious no – just look at the name of the Act if you don’t believe me.
If Parliament did not intend to criminalise those children then you would expect any prosecution to be thrown out under the very clear principle in Tyrrell (which was followed by the Court of Appeal in R. v Whitehouse (Arthur) [1977] Q.B. 868). Thus you must conclude that it would be impossible for any court to convict the schoolgirl discussed in the newspaper story. If it is impossible to convict then there can be no basis for the police offering a caution and absolutely no excuse for a solicitor advising the girl to accept said caution.
I don’t know if the schoolgirl in the newspaper had legal advice, if she did then it wasn’t very good advice. If you are accused of a crime, call a solicitor who knows the law today on 020 8242 4496 and give yourself the best possible chance of avoiding conviction. Or visit our contact page to get in touch.