Definition of indecent
This is an issue for the Court to decide in accordance with established standards of propriety. It is an objective test for the jury. The age of the child is a relevant consideration. The circumstances in which the photograph came to be taken and motive of the taker are not relevant; it is not the defendant's conduct which must be indecent but the photograph of the child which results from it.
Definition of photographs and Pseudo-photographs
Photographs include photographs, negatives, film, copies, electronic images stored by any means, data stored on a computer that can convert into a photo and tracings or any other image.
Pseudo-photographs are images created by computer or otherwise which appear to be a photograph.
Definition of a child
A child is a person under 18.
A person is taken to have been a child at any material time if it appears from the evidence as a whole that he/she was then under the age of 18.
The age of a child is a finding of fact for the jury to determine. Expert evidence is inadmissible on the subject as it is not a subject requiring the assistance of experts.
If the impression conveyed by a pseudo-photograph is that the person shown is a child" then it shall be treated for the purpose of the offence as showing a child.
Indecent images are graded into three categories, A, B and C.
Category A images are the most serious.
Images classed in category A depict gross assault, sadism or bestiality, or obscene images involving penetrative sexual activity with a child.
Category A also includes all images that depict a child subjected to pain.
Category B images are less serious that category A images but more serious than category C images.
Depictions of both non-penetrative sexual assault and explicit sexual activity are both classed within category B.
Category B non-penetrative sexual assault refers to acts such as touching and mutual masturbation. In most cases, this definition involves the presence of an adult.
Category B images involving explicit sexual activity usually depict a child in sexual acts without the presence of an adult. This would include depictions of activities such as masturbation.
Category C images are indecent images not classed within category A or B.
Category C images depict some sexually suggestive content.
Category C images can include anything from nude or revealing images of a child to commercially published images and family photographs.
As some images may not be obviously sexual in nature it is an objective test for the jury to decide if an image is indecent.
Please see my other blogs that explain making, possession, distribution and production of images and how indecent images offences are sentenced.
If you need specific advice on your case, please contact me or book an appointment.
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