Behind bars | Going to the next level

The power of the internet to inform, educate and entertain is one of the wonders of the modern world – and the availability of access to it increases daily. There is an app for everything and a cursory search can locate the most arcane of material within seconds - but not everyone is looking for chunks of school essays to copy down or cheap clothes. Access to web based adult pornography is child’s play, from legal ‘soft’ porn to extreme pornographic images the possession of which can be punishable by three years imprisonment. But it is the access to indecent images of children which most troubles the courts, not only in the number of cases which are now prosecuted, but in the number and variety of images, and how to deal with the offenders.

“Variety” is a polite word for images which come anywhere between Levels 1 and 5 of the ‘Copine’ scale, which the police use to categorize seriousness. Level 1 can, technically, catch your amusing snaps of toddlers at bath time, and level 5 is the worst of the worst. Checking that the classifications done by the police are correct is a duty that lies, heavily, on the defence: the correlation between the number of levels 4 and 5 images and prison time makes it so. And it is no defence to say that one did not wish to download a level 5 image – if the intention was to get hold of an image that was indecent the fact it was more indecent than required avails you nothing. The number of images, and the age of the children in them, are obviously aggravating factors for sentence.

Means of distribution

The offences are mainly prosecuted under two statutes. The Protection of Children Act 1978 makes it an offence to take, make, distribute, show or possess with a view to showing any indecent photograph or pseudo photograph of a child, the maximum sentence being ten years. The Criminal Justice Act 1988 makes possession of any such photograph an offence, with a lower maximum sentence of five years. ‘Making’ an image includes downloading it from the internet – although in 1978 it meant the rather more direct activity of taking a photograph with a camera, or even making a drawing. ‘Distributing’ in pre-internet days meant the physical exchange of pictures between people – the mischief intended was of course the selling or swapping of pictures between paedophiles, with all that implies of mutual encouragement and validation of perversion. Distributing now is more easily done, as an unwelcome by product of technology. The power of the search engine has had two extraordinary effects which the courts are struggling to manage: it is now possible to run programmes which trawl the vastness of cyberspace over night and remotely. Type in ‘Lolita’ – retire to bed or go to work, and on your return your hard drive will be full of hundreds if not thousands of illegal images. The other effect is that with some programmes while they search and download for you, other searchers can access the stream intended for your hard drive. And that can be, in law, distribution under section 1 of the Protection of Children Act. Under section 1(2) distributing includes ‘exposing’ an image to another person – running a programme which others can access exposes those images to them.

Treatment versus prison

The sentencing guidelines for these offences start at community orders for possession of small number of the lower levels for private use, and end at lengthy prison sentences for the distribution of levels 4 and 5 – with medium term sentences for possession of the high categories. Whether mass downloads produced by the internet’s innovative technology have been factored into the guidelines is a moot point – if it hasn’t been, it should be.

The tension between prison and community orders is stark in these ?cases. The internet itself can be addictive, ?as can pornography. Addictions can be treated, and future risk thus lessened. Not everyone who hoards images is in fact a paedophile nor do they all act out with living children the fantasies fed by their photographs. Treatment or prison? The guidelines say prison. The probation ?service and psychologists say treatment, with some effective and targeted programmes only available over a three years supervision order.
The judges, caught in the middle know treatment is required but that prison is merited

And if your innocent research on Russian born American novelists triggers a deluge of images, are you guilty of this offence? Not if you didn’t mean it. But delete it. Now.