“Sexting” – should schoolchildren be prosecuted?

Posted by Malcolm Johnson on

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The Times reports that the police have been criticised for over-reacting after a 14 years old boy was given a criminal record for sending a naked image of himself by mobile phone to a female classmate.

Mark Fenhalls QC, chairman of the Criminal Bar Association said that the legislation used for such cases was outdated, stemming from 1978 before mobile phones were invented.

It should be pointed out that the decision to prosecute would not have been that of the police alone. There would have been consultation with the Crown Prosecution Service.

The law for the protection of children in this area, is a great deal older than may be first thought. The Obscene Publications Act 1857, and its successors the 1959 and 1964 Acts may have had as their primary purpose, the protection of the public from any material that might “deprave and corrupt”, but they could and still are applied to child pornography offences. The original 1959 and 1964 Acts have been updated to deal with internet offences and they are still used in prosecutions. More recently (in a case handled by Myles Jackman of Hodge, Jones and Allen) we have seen an unsuccessful prosecution involving the use of section 63 of the Criminal Justice and Immigration Act 2008, which prohibits the possession of an extreme pornographic image.

The first specific mention of child pornography in statutory legislation appears in the Protection of Children Act 1978, which created the offence of taking or permitting to be taken an indecent photograph of a child. This is now the main means by which persons making or possessing child pornography are prosecuted. The 1978 Act has been extended by subsequent statutes, the Criminal Justice and Public Order Act 1994 and the Sexual Offences Act 2003. The 2003 Act created the offence of voyeurism, together with the offences of abusing children through or exposing them to pornography. It also contains an offence of “grooming” which is aimed at the grooming of children over the internet by means of “chat rooms.” More recently the Coroners and Justice Act 2009 created a new offence of possession of a prohibited image of a child.

Coming back to the comments of the chairman of the Criminal Bar Association, the 1978 Act was certainly not written with mobile phones in mind. Section 50 of the Children and Young Persons Act states that a 10 year old cannot be guilty of a criminal offence. In addition, a child between the ages of 10 and 14 is presumed unable to form the specific intent to commit a crime, although this can be rebutted by the prosecution. There is a bill passing through Parliament at present “The Age of Criminal Responsibility Bill” to raise that age from 10 to 12.
The problem for the police is that 14 year old’s can and do commit sexual crimes against other children, and those crimes can occur in schools. A brief reading of the Sexual Offences Act 2003 demonstrates that the Act was written to tackle the “subtle” nature of abuse. Hence the sections that are clearly designed to catch the grooming of children.

The sending of an indecent photograph might well sound like innocent “fun” but regrettably it carries serious echoes of the kind of excuse put out by adult child abusers when they are finally caught. Few parents would approve of their child being sent such a photograph by another child. The question is whether this is criminal activity, punishable by a criminal sanction.

Section 1 of the Protection of Children Act 1978 contains no mention of the perpetrator’s motive. The possession and distribution of an indecent photograph is quite simply an offence without more. Contrast that Section 1 of the Malicious Communications Act 1988, which makes it an offence to send an indecent article or electronic communication if the perpetrator’s purpose is to cause anxiety or distress to the recipient.

One solution might be to amend the Protection of Children Act 1978, so as to allow a defence of harmless “motive” and restrict the defence to children under 16. The problem there is that if a 16 year old sends an indecent photograph to a 13 year old, it might be very difficult to prove an offence, in what might well have been the beginning of a campaign of sexual harassment. The alternative would be to keep the law as it is, and let the message go out to children that this is criminal activity.

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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