I’ve been reminded that section 62 of the Coroners and Justice Act 2009, passed last November, created a new offence of possessing non-photographic images of children that are pornographic and fall into one of a number of sexual categories. When the section is brought into force such images will be classed in the same way as indecent photographs and pseudo-photographs of children, already illegal to possess under the amended Protection of Children Act 1972.
The good news is that the government seem to have recognised, following discussions over the Sexual Offences Act 2003, that laws criminalising possession need to provide defences for those who have to secure evidence when it is alleged that computers contain the prohibited material. Section 64 of the new Act contains similar defences to those in the Sexual Offences Act:
- That the person had a legitimate reason to possess the image (e.g. investigating a complaint);
- The the person had no reason to suspect the nature of the image (e.g. making a routine backup);
- That the image was sent unsolicited to a the person and that they did not keep it for an unreasonable time (e.g. e-mail spam, though there is little evidence of such images being sent as spam).
Existing processes for dealing with indecent images (for example JANET’s guidelines for investigating and the IWF’s good practice guidelines) should therefore be sufficient to avoid committing this new crime.
[Note: the sections creating the new offences do not apply to Scotland]
