HDIM 2016 Opening Statement of the Delegation of Canada
Subject to sections 1A and 1B, it is an offence for a person—
to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child . . .; or
to distribute or show such indecent photographs or pseudo-photographs; or
to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or
to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.
For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.
Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.
Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—
that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or
that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.
References in the Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.
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in the list of extradition crimes contained in Schedule 1 to the Extradition Act 1870 ; and
among the descriptions of offences set out in Schedule 1 to the Fugitive Offenders Act 1967 ;
In paragraph 1 of the Schedule of Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to be tried by a United Kingdom court), after sub-paragraph (b)(viii) (inserted by the Sexual Offences Act 1956) there shall be added—.
This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph or pseudo-photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—
were married or civil partners of each other, or
lived together as partners in an enduring family relationship.
Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—
were married or civil partners of each other, or
lived together as partners in an enduring family relationship.
This section applies whether the photograph or pseudo-photograph showed the child alone or with the defendant, but not if it showed any other person.
In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph or pseudo-photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.
In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.
In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both— the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph or pseudo-photograph in his possession with a view to its being distributed or shown to a person other than the child.
as to whether the child consented to the photograph or pseudo-photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, and
as to whether the defendant had the photograph or pseudo-photograph in his possession with a view to its being distributed or shown to anyone other than the child,
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the wife or husband shall not be compellable either to give evidence or, in giving evidence, to disclose any communications made to her or him during the marriage by the accused ; and
the failure of a wife or husband of the accused to give evidence shall not be made the subject of any comment by the prosecution.
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In proceedings under this Act relating to indecent photographs of children a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 18.
In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if the defendant proves that—
it was necessary for the defendant to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,
at the time of the offence charged the defendant was a member of the Security Service or the Secret Intelligence Service, and it was necessary for the defendant to make the photograph or pseudo-photograph for the exercise of any of the functions of that Service, ...
at the time of the offence charged the defendant was a member of GCHQ , and it was necessary for the defendant to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ, or
the defendant—
was at the time of the offence charged a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section 235 of the Online Safety Act 2023), and
made the photograph or pseudo-photograph for the purposes of OFCOM’s exercise of any of those functions.
In this section “ GCHQ ” has the same meaning as in the Intelligence Services Act 1994.
In this section “OFCOM” means the Office of Communications.
Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises ..., there is an indecent photograph or pseudo-photograph of a child.
are or have been taken there ; or
are or have been shown there, or are kept there with a view to their being distributed or shown.
The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises . . ., and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs or pseudo-photographs of children . . . .
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In this section “ premises ” has the same meaning as in the Police and Criminal Evidence Act 1984 (see section 23 of that Act).
The Schedule to this Act makes provision about the forfeiture of indecent photographs and pseudo-photographs.
The justice before whom any articles are brought in pursuance of section 4 above may issue a summons to the occupier of the premises to appear on a day specified in the summons before a magistrates' court for that petty sessions area to show cause why they should not be forfeited.
If the court is satisfied that the articles are in fact indecent photographs of children, taken on the premises or shown there or kept there with a view to their being distributed or shown, the court shall order them to be forfeited; but if the person summoned does not appear, the court shall not make an order unless service of the summons is proved.
In addition to the persons summoned, any other person being the owner of the articles brought before the court, or the persons who made them, or any other person through whose hands they had passed before being seized, shall be entitled to appear before the court on the day specified in the summons to show cause why they should not be forfeited.
Where any of the articles are ordered to be forfeited under subsection (2), any person who appears, or was entitled to appear, to show cause against the making of the order may appeal to the Crown Court.
If as respects any articles brought before it the court does not order forfeiture, the court may if it thinks fit order the person on whose information the warrant for their seizure was issued to pay such costs as the court thinks reasonable to any person who has appeared before it to show cause why the photographs should not be forfeited; and costs ordered to be paid under this subsection shall be recoverable as a civil debt.
Where indecent photographs of children are seized under section 4 above, and a person is convicted under section 1(1) of offences in respect of those photographs, the court shall order them to be forfeited.
An order made under subsection (2) or (6) above (including an order made on appeal) shall not take effect until the expiration of the ordinary time within which an appeal may be instituted or, where such an appeal is duly instituted, until the appeal is finally decided or abandoned ; and for this purpose—
an application for a case to be stated or for leave to appeal shall be treated as the institution of an appeal; and
where a decision on appeal is subject to a further appeal, the appeal is not finally decided until the expiration of the ordinary time within which a further appeal may be instituted or, where a further appeal is duly instituted, until the further appeal is finally decided or abandoned.
Offences under this Act shall be punishable either on conviction on indictment or on summary conviction.
A person convicted on indictment of any offence under this Act shall be liable to imprisonment for a term of not more than ten years, or to a fine or to both.
A person convicted summarily of any offence under this Act shall be liable—
to imprisonment for a term not exceeding six months; or
to a fine not exceeding the prescribed sum for the purposes of section 32 of the Magistrates’ Courts Act 1980 (punishment on summary conviction of offences triable either way: £1,000 or other sum substituted by order under that Act), or to both.
The following subsections apply for the interpretation of this Act.
References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.
Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children and so as respects pseudo-photographs.
References to a photograph include—
the negative as well as the positive version; and
data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.
References to a photograph also include— and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph.
a tracing or other image, whether made by electronic or other means (of whatever nature)—
which is not itself a photograph or pseudo-photograph, but
which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and
data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a);
“Film” includes any form of video-recording.
“Child”, subject to subsection (8), means a person under the age of 18.
“ Pseudo-photograph ” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.
If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.
References to an indecent pseudo-photograph include—
a copy of an indecent pseudo-photograph; and
data stored on a computer disc or by other electronic means which is capable of conversion into an indecent pseudo-photograph.
An Order in Council under paragraph 1(1)(b) of Schedule 1 to the Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it operates only so as to make for Northern Ireland provision corresponding to this Act—
shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament); but
shall be subject to annulment by a resolution of either House.
This Act may be cited as the Protection of Children Act 1978.
This Act except section 1(6) shall not extend to Scotland and except for that subsection, and subject also to section 8 shall not extend to Northern Ireland.
Section 8 of this Act shall come into force forthwith, but otherwise this Act shall come into force at the expiration of one month beginning with the date it is passed.
This Schedule applies where— The following property is “forfeitable property”— For the purposes of this paragraph— The circumstances mentioned in sub-paragraph (3)(a) include the time and costs involved in separating the property.
The property must be retained in the custody of a constable until it is returned or otherwise disposed of in accordance with this Schedule. Nothing in the Police (Property) Act 1897 (property seized in the investigation of an offence) applies to property held under this Schedule.
“The relevant officer”, in relation to any property, is the constable who for the time being has custody of the property.
The relevant officer must give notice of the intended forfeiture of the property (“notice of intended forfeiture”) to— The notice of intended forfeiture must set out— The notice of intended forfeiture may be given to a person only by— But a notice given in accordance with sub-paragraph (1)(b) may, where it is not practicable to give the notice in accordance with sub-paragraph (3), be given by— Property may be treated or condemned as forfeited under this Schedule only if— In this paragraph “the appropriate address”, in relation to a person, means— In the case of— the references in this paragraph to its principal office include references to its principal office within the United Kingdom (if any).
A person claiming that he has a legitimate reason for possessing the property or a part of it may give notice of his claim to a constable at any police station in the police area in which the property was seized. Oral notice is not sufficient for these purposes.
A notice of claim may not be given more than one month after— A notice of claim must specify— Service upon a solicitor so specified is to be taken to be service on the claimant for the purposes of any proceedings by virtue of this Schedule. In a case in which notice of intended forfeiture was given to different persons on different days, the reference in this paragraph to the day on which that notice was given is a reference—
If the property is unclaimed it is treated as forfeited. The property is “unclaimed” if, by the end of the period for the giving of a notice of claim— Sub-paragraph (1) applies in relation to a readily separable part of the property as it applies in relation to the property, and for this purpose sub-paragraph (2) applies as if references to the property were to the part. In this paragraph “readily separable part” has the meaning given by paragraph 1.
Where a notice of claim in respect of the property, or a part of it, is duly given in accordance with paragraphs 5 and 6, the relevant officer must decide whether to take proceedings to ask the court to condemn the property or a part of it as forfeited. The decision whether to take such proceedings must be made as soon as reasonably practicable after the giving of the notice of claim.
This paragraph applies if, in a case in which a notice of claim has been given, the relevant officer decides— The relevant officer must return the property or part to the person who appears to him to have a legitimate reason for possessing the property or, if there is more than one such person, to one of those persons. Any property required to be returned in accordance with sub-paragraph (2) must be returned as soon as reasonably practicable after the decision not to take proceedings for condemnation.
This paragraph applies if, in a case in which a notice of claim has been given, the relevant officer decides to take proceedings for condemnation of the property or a part of it (“the relevant property”). The court must condemn the relevant property if it is satisfied— This is subject to sub-paragraphs (5) and (7). If the court is not satisfied that the relevant property is forfeitable property, the court must order its return to the person who appears to the court to have a legitimate reason for possessing it or, if there is more than one such person, to one of those persons. If the court is satisfied— the court must order the return of the relevant property to that person or, as the case may be, to one of those persons. Where the court is satisfied that any part of the relevant property is a separable part, sub-paragraphs (2) to (4) apply separately in relation to each separable part of the relevant property as if references to the relevant property were references to the separable part. For this purpose a part of any property is a “separable part” of the property if— Where the court is satisfied— the court may order the return of that part to that person. Sub-paragraph (7) does not apply to any property required to be returned to a person under sub-paragraph (4).
Where the court condemns property under paragraph 10(2)— A court order under paragraph 10(3), (4), (5) or (7) requiring the return of a part of the relevant property to a person may be made conditional on specified costs relating to the separation of the part from the remainder of the relevant property being paid by that person within a specified period. Where the court makes an order under paragraph 10(7) for the return of a part of the relevant property— For the purposes of this paragraph “specified” means specified in, or determined in accordance with, the court order.
Proceedings by virtue of this Schedule are civil proceedings and may be instituted in a magistrates' court which has jurisdiction in relation to the place where the property to which the proceedings relate was seized.
Either party may appeal against the decision of the magistrates' court to the Crown Court. This paragraph does not affect any right to require the statement of a case for the opinion of the High Court.
Where an appeal has been made (whether by case stated or otherwise) against the decision of the magistrates' court in proceedings by virtue of this Schedule in relation to property, the property is to be left in the custody of a constable pending the final determination of the matter.
Where property is treated or condemned as forfeited under this Schedule the forfeiture is to be treated as having taken effect as from the time of the seizure.
This paragraph applies where any property is required to be returned to a person under this Schedule. If— the relevant officer may dispose of it in any manner he thinks fit.
This paragraph applies where any property would be required to be returned to a person under this Schedule but for a failure to satisfy a condition imposed by virtue of paragraph 11(2) (return of property conditional on payment of costs within specified period). The relevant officer may dispose of the property in any manner he thinks fit.
In proceedings under this Schedule, the fact, form and manner of the seizure are to be taken, without further evidence and unless the contrary is shown, to have been as set forth in the process.
In proceedings, the condemnation by a court of property as forfeited under this Schedule may be proved by the production of either—
the order of condemnation, or
a certified copy of the order purporting to be signed by an officer of the court by which the order was made or granted.
Neither the imposition of a requirement by virtue of this Schedule to return property to a person nor the return of it to a person in accordance with such a requirement affects—
the rights in relation to that property, or any part of it, of any other person, or
the right of any other person to enforce his rights against the person to whom it is returned.
In this Schedule— For the purposes of this Schedule the circumstances in which a person (“P”) has a legitimate reason for possessing an indecent photograph of a child (“C”) include where—