Offences involving indecent photographs and pseudo-photographs of children: an analysis of sentencing guidelines

Abstract

Guideline judgements in English sentencing have been subjected to little scrutiny by non-lawyers. In this paper, the writers examine one guideline judgement, R v. Oliver and Others, which concerns the sentencing of offences involving indecent photographs and pseudo-photographs of children. Ten post-Oliver cases where a sentence was appealed are analysed and the results reported. The writers find the guideline's internal logic wanting, with shortcomings reflected in the patchy and non-obvious inferences made in appellate judgements of cases of the kind covered in Oliver. The writers propose flowcharting as a heuristic device in the development of guideline judgements, and possibly as a form of representation of judgements parallel to text-based formulations.

Keywords:

• child sexual abuse
• child sexual abuse investigations
• sentencing
• sexual abuse

Acknowledgements

We wish to thank Professor Martin Wasik, former Chair of the Sentencing Advisory Panel, for helpful comments on an earlier draft of this paper. The journal's referees also raised constructive points which we have incorporated.

Notes

1. As Akdeniz (2007), p. 275) has recently pointed out, there is no statutory definition of the term ‘child pornography’ – in fact, again as he points out, prior to the Sexual Offences Act 2003, ss.48–50, the words ‘child’ and ‘pornography’ do not appear together in any legislation dealing with such offences. The Protection of Children Act 1978, and the Criminal Justice Act 1988, s.160, refer to the criminalization of offences related to indecent photographs and pseudo-photographs of children.

2. The Sexual Offences Act 2003 (s.45) amends the Protection of Children Act 1978 and the Criminal Justice Act 1988. It is now a crime to take, make, permit to take, distribute, show, possess, possess with intent to distribute, or to advertise indecent photographs or pseudo-photographs of any person below the age of 18 (our emphasis). Previously, and including Oliver, the offence related to any person below 16 years of age.

3. On the typology, see Taylor et al. (2001); and for the background to the COPINE project, see COPINE Project Background (2002).