DC Patel executes a search warrant at Hogan's address and seizes his laptop. Forensic examination reveals 40 indecent images of children downloaded from the internet. Hogan says he downloaded them for personal use and never shared or intended to share them. DC Patel must consider the appropriate charge. Which is correct?
- ADownloading an image from the internet amounts to making an indecent photograph of a child under s.1 Protection of Children Act 1978 - this is the more serious charge and intent to distribute is not required
- BDownloading for personal use without intent to distribute attracts only a possession charge under s.160 Criminal Justice Act 1988 - the making charge requires proof of intent to share
- CHogan is not guilty of either offence as he did not create the original images - he merely received content that already existed
- DThe appropriate charge depends on the category of images - only the most serious category supports a charge of making under s.1 POCA 1978
Show answer and explanation
The courts confirmed in R v Bowden [2000] that downloading an image from the internet amounts to making an indecent photograph within the meaning of s.1 Protection of Children Act 1978, carrying a maximum of 10 years. Intent to distribute is not required - the act of downloading is itself the making. s.160 CJA 1988 covers simple possession (maximum 5 years) and is the lesser charge. The category of image is relevant to sentencing but not to whether the s.1 offence is made out.
- B: There is no requirement to prove intent to distribute for a s.1 charge. The act of downloading constitutes making. Personal use is not a defence to the making charge.
- C: The defendant does not need to have created the original image. Downloading an existing image constitutes making under s.1 POCA 1978 as confirmed in R v Bowden. The origin of the image is irrelevant.
- D: s.1 POCA 1978 applies to indecent photographs at any level of severity. The category of image goes to sentencing - it does not determine whether the making offence is made out.