|Does sexting put teenagers at risk of a criminal conviction?|
Yesterday, after appearing at Highbury Corner Magistrates’ Court, I stopped on the way home at the motorway services for some lunch. As I enjoyed some extra hot chicken, macho peas and sweet potato wedges (anyone want to guess which restaurant I stopped at?) I read the i newspaper, which is a concise edition of the Independent.
On page 15 is a story with the same title as this blog post. The point of the story is that teenagers are prone to taking selfies and, in some of those selfies, said teenagers neglect to wear any clothes. The story says, “[c]urrently a teenager younger than 18 who takes a nude picture of themselves is technically guilty of creating child pornography.” Later the story continues, “… a Nottingham schoolgirl received a police caution after sending an explicit photograph of herself to her boyfriend…”
For anybody who doesn’t know, a police caution is a form of case disposal in which the suspect confesses to an offence. A caution should only be administered where the suspect would be likely to be convicted if the case went to court – at the very least I’d contend that conviction has to be at least possible in law.
So, what is the law on child abuse images? You’ll note I’m not talking about “child porn” – pornography is something adults make and use. When you start abusing kids and taking pictures it ain’t porn it’s pictures of children being abused!
It is an offence under section 1 of the Protection of Children Act 1978 to take, permit to be taken, distribute, possess or publish any indecent photograph of a child, which the Act defines as somebody below 18-years-of-age. There is a defence if the people involved are married, because of course a 16 or 17-year-old is both above the age of consent and is allowed to marry – this may make you wonder why this protection was necessary or why, if it is necessary, the Government of the day did not raise the ages of consent and marriage but there you go.
As you all know, the law does not stop at mere Acts of Parliament – we also need judges to interpret those Acts and tell us what they mean, because Parliament isn’t always good at making its intentions clear.
In 1885, Parliament passed the Criminal Law Amendment Act that made it a crime for a man (or boy) to have sex with a girl under the age of 16-years. In 1893, Jane Tyrrell was aged between 13 and 16-years when she agreed to have sex with Thomas Ford. As any good Victorian prosecutor would do, she was charged with aiding and abetting his “having unlawful carnal knowledge of her” and she was convicted at the Old Bailey.
Jane Tyrrell appealed her conviction in a case known as R v Tyrrell  1 QB 710. The Crown Cases Reserved Court (a now defunct Victorian criminal appellate court) reached a unanimous decision and quashed her conviction. In giving judgment Lord Coleridge CJ pointed out that the intention of Parliament in passing the 1885 Act was to protect women and children (he actually said the Act “… was passed with the intention of protecting women and girls from themselves.” He used that line twice.). He concludes that “… it is impossible to say that the Act… can have intended that the girls for whose protection it was passed should be punishable under it for the offences committed upon themselves.”
Matthew, J. was even clearer in condemning the prosecution’s position when he said, “I am of the same opinion. I do not see how it would be possible to obtain convictions under the statute if the contention for the Crown were adopted, because nearly every section which deals with offences in respect of women and girls would create an offence in the woman or girl. Such a result cannot have been intended by the legislature. There is no trace in the statute of any intention to treat the woman or girl as criminal.” Incidentally, Victorian judges were far more succinct than their modern counterparts – that is word for word the entire judgment by Matthew J!
So, we need to ask ourselves whether, in passing the Protection of Children Act 1978 Parliament intended to criminalise the very children it was seeking to protect? I think the answer to that is an obvious no – just look at the name of the Act if you don’t believe me.
If Parliament did not intend to criminalise those children then you would expect any prosecution to be thrown out under the very clear principle in Tyrrell (which was followed by the Court of Appeal in R. v Whitehouse (Arthur)  Q.B. 868) and thus you would have to contend that it would be impossible for any court to convict the Nottingham schoolgirl discussed in the newspaper story. If it is impossible to convict then there can be no basis for the police offering a caution and absolutely no excuse for a solicitor advising the girl to accept said caution.