Naturist Photography

In the UK it is a serious offence under the Protection of Children Act, 1978 (PoCA) for a person to do any of the following:

1. to take, or permit to be taken, any indecent photograph of a child

2. to distribute or show such indecent photographs

3. to have in his possession such indecent photographs, with a view to their being distributed or shown by himself or others

4. 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 intends to do so

As you may have noticed, simple possession of an indecent photograph of a child is not an offence under PoCA, (to "show" a photograph means to show it to someone other than oneself). This loophole was plugged by section 160 of the Criminal Justice Act 1988. Prosecutions for possession under this Act are almost as common as prosecutions under PoCA.

The above may seem straightforward, and/or to have large gaps. Neither is the case. For example, women are prosecuted under PoCA despite the use of "his", "himself" and the like. The term "photograph" has been defined to include any form of photographic image - negatives, prints, slides, video, cine film, computer files, printout, magazines, etc. An artificially created image which has the appearance of a photograph is also covered, as is an image which has been manipulated to turn it into an indecent image and something (eg a computer program) which could generate an image equivalent to a photograph. This extension to cover "pseudo-photographs" and the like was provided by section 84 of the Criminal Justice and Public Order Act 1994.

If the age of the subject of a photograph is known, then that determines whether the photograph is "of a child", otherwise the court has to determine whether or not the subject was aged under 16 at the time the photograph was taken. The Appeal Court judgement in R v Land, 1997 determined that, in the absence of evidence of the age of the subject of the image, the jury or bench shall use their own judgement to decide whether or not the subject is a child, and expert evidence on this matter is not admissible.

Note that the Sexual Offences Act 2003 came into force in May 2004, increasing the age below which a photograph's subject is a "child" for the purposes of these offences, from 16 to 18.

For some charges, there are standard defences of having legitimate reasons for possessing, distributing or showing the photographs, of not knowing that one had the photographs in one's possession, of not realising that images were indecent, and of having no reason to suspect that they were indecent. Only one successful use of the defence of legitimate reason is known - and that did not result in an acquittal, while claims of lack of knowledge have been rejected in several cases. When a University lecturer attempted to claim legitimate research reasons for having indecent images on his computer disc drive, the Appeal Court in Atkins v DPP dismissed the claim, stating "Courts were entitled to bring a measure of scepticism to bear upon such an inquiry and should not too readily conclude that the defence had been made out.". Similarly, a postgraduate claimed that his possession of 677 indecent images, and associated email exchanges with two paedophiles, was the basis of a planned reseach project. The Appeal Court judged that the original trial jury was right in its rejection of this claim (R v Wrigley, 2000). In April 2004, a retired University lecturer was given a conditional discharge on a collection of PoCA charges. He claimed he was doing research, but had not cleared his actions in collecting child porn from the 'net. Unusually, he was not placed on the Sex Offenders Register.

Downloading an indecent image of a child from the Internet constitutes "making" an indecent photograph for the purposes of these Acts. The Appeal Court judgement R v Bowden, 2000 established this significant legal principle. Since "possession" of an indecent image attracts a lower penalty than "making" it, there is a clear incentive for someone with a set of computer files representing such images to admit to "possession" but to deny "making". Be under no illusion, case law is clear - downloading amounts to "making", and in this context "downloading" is taken in its widest sense, including knowingly receiving an email with an indecent image of a child as an attachment, and knowingly visiting a Website containing indecent images of children. In the latter case the image files are stored in the browser's cache, amounting to "making" - so far no case of this nature has turned on whether viewing a file amounts to "making" an image.

The motivation of the photographer is relevant in regard to the taking of the image - offence (a) above. To be prosecuted successfully under that section of PoCA, the court must decide that the photographer deliberately intended to produce the indecent image offered in evidence (assuming that the court agrees that the image is indecent - if not, then the motives become irrelevant, as there has been no offence). The photographer may have a complete defence if it can be shown that the indecent image was taken accidentally, or that the inclusion of the indecent portion of the image was unintentional. The case law here was established by an appeal judgement (R v Graham-Kerr, 1988) concerning photographs taken at a naturist swim.

It is for the jury (or bench of magistrates) to decide whether or not a photograph is "indecent". They must do this by "applying the recognised standards of propriety". This was another aspect of R v Graham-Kerr, drawing on the principle established in R v Stamford, 1972 - a case turning on whether or not an article sent by post was indecent, which noted the clear distinction between the terms "indecent" (not defined by legislation) and "obscene" (which is defined in legislation). Neither the legislation nor case law laid down any content, area of the body, action or pose which did or did not make a photograph "indecent", until the most recent judgement R v Oliver and others, 2002 established some clear principles. Even with that guidance, it is up to the prosecution and the defence to try to convince the court one way or the other. The age of the child in the photograph is a material consideration when deciding whether or not the image is "indecent". This aspect was determined by the Appeal Court judgement R v Owen, 1988, where a professional photographer took a number of photographs of a 14-year-old girl, some of which were offered in evidence. In these "the girl is shown in what might well be considered a provocative pose displaying her bare breasts, wearing only a loose blouse, a pair of pants and a string of beads." - note that she was not nude. Judgement R v Smethurst 2001 also dealt with a case where the defendant claimed that the (unknown) subjects of the images were over 16 (or, after May 2004, 18) - the jury had not believed him, nor did the Appeal Court. The content, pose, number of images and other factors are usually taken into account when sentencing - this process became now the subject of a set of guidelines, see below.

Neither the Human Rights Act (HRA) nor the European Convention on Human Rights (ECHR) provide a way round PoCA. Claiming that prosecution for taking, making or possessing indecent photographs of a child infringes one's right to respect for private and family life does not work (R v Smethurst, 2001 and R v Bowden, 2000). Courts judge that children have the right to be protected from exploitation - which is in accordance with HRA, ECHR, the UN Convention on the Rights of the Child, and subsequent UN resolutions. The rights of a child are far more important than any imagined rights of an adult to take or own indecent photographs.

Naturists can fall foul of PoCA in various ways. For example, one person was successfully prosecuted for taking indecent photographs of a child at a naturist swim. In court, it was made clear that neither the child nor the child's parents were aware of the photograher's intentions (which he admitted were nothing to do with naturism at all).

A photograph of a child in a naturist situation may appear delightful to another naturist, grossly offensive to a particularly prudish person. If that person is a police officer, prosecutor, social worker, employer or journalist, this could create serious problems for the owner of the photograph. It has been known for a social worker to regard photographs of a fully clothed child as "indecent" because the child was alleged to be in a suspicious pose and with a provocative expression, so nudity in itself is not necessarily a factor - the judgement of whether or not an image is "indecent" is ultimately subjective and decided by the jury or bench.

Home Office figures on the application of PoCA and related legislation show that a substantial number of people accept cautions for production and possession of indecent images of children. Accepting a caution avoids the publicity of a trial, but does not mean being "let off". Anyone cautioned for an offence under these Acts should expect to be placed on the Sex Offenders' Register for several years, and will have major difficulties in any employment involving children. Being cautioned means having a criminal record.

While naturists should be concerned and cautious, the situation is not entirely gloomy. In at least one prosecution for possession of indecent photographs, an extensive collection of naturist material has been specifically excluded from consideration (R v Stanley, 1997), showing that many non-naturists are aware of the distinction between naturism and indecency.

PoCA and related legislation was not considered in the review of sex offences law which resulted in "Setting The Boundaries", But it was mentioned in "Protecting The Public", the White Paper published in November 2002 which prepared the ground for the Sexual Offences Bill reforming most aspects of the law on sexual offences, published early in 2003. Since the laws as detailed on this page already provide a comprehensive and loophole-free means to prosecute any person dealing in or with child pornography, this was a surprise. The basic change is to extend the definition of "child" to anyone under 18 (instead of under 16). A background document to the White Paper hilariously proposed: "There should be an exception for children aged 16 or 17 who take intimate photographs of themselves for their own use since they are over the age of consent and it seems an undue invasion of their privacy to stop them taking pictures of themselves for their own use." - this did not appear in the Bill. Instead, someone clearly realised that a great deal of glamour and soft-core photography used models between the ages of 15 and 18, and there were two exemptions - for photographs where a 16- or 17-year-old consented to the "making" or "possession", and for those photographs produced before the clause became law. But, as the Bill passed through the Lords, the latter exemption was removed (on the grounds that it gave offenders an easy excuse that was difficult to disprove). Then, the Commons removed the first exemption on the grounds that children cannot give informed consent to being the subject of child porn. At the very last stage, a new exemption was added - the "marriage" exemption which applies to many of the new offences defined in the Act, allowing under-18s who are married (or in an equivalent relationship) to make indecent photographs of one another. The full text of the Act is available on the Web, with the specific clause directly accessible if you want to go straight there.

Following a major case, the Court of Appeal requested guidance from the Sentencing Advisory Panel on sentencing for offences under PoCA and the related Acts. After producing a consultation document and considering responses from several dozen organisations and individuals (including naturists but not including CCBN), the Panel produced a set of guidelines. These recommended that the seriousness of an offence should be judged - in part - on the nature of the material detailed in the charge. To make it easier to assess this "nature of the material", images were classified into five "levels" taken from a set of categories of material found in the possession of paedophiles. (This "COPINE" classification was produced by an academic group investigating paedophiles, and was not intended to represent directly any concept of "strength" or offensiveness of the material.) The Panel recommended that "Indicative (non-erotic / non-sexualised pictures)" material - COPINE category 1 - should be excluded from these levels "because images of this nature would not be classed as indecent". The lowest level of potentially indecent material was defined as "images depicting nudity or erotic posing, with no sexual activity". This explicitly includes naturist images: "nudist (naked or semi-naked in legitimate settings/sources" (COPINE category 2). In my opinion, this would have created a real problem for naturists, since a highly-respected quango had stated that naturist images should be considered as potentially indecent. Fortunately, things have turned out in a satisfactory manner

The Sentencing Advisory Panel's advice was published in August of 2002. Several cases were pending in the Court of Appeal, waiting for this document to become available. These were R v Oliver, R v Hartrey and R v Baldwin, usually referred to as R v Oliver and others 2002, since the judgements were delivered in one combined statement on 21 November 2002. For naturists, the key element of the judgement by Lord Justice Rose, Mr Justice Gibbs and Mr Justice Davis, is as follows:

Therefore, an image showing no more than "nakedness in a legitimate setting" will not be considered indecent in an English or Welsh court. Of course, nakedness in a legitimate setting could be the subject of an indecent image, but only if some other factor was involved taking it into one of the five levels detailed above. For the time being, naturists should be safe from conviction thanks to this judgement - although nobody can be guaranteed immunity from investigation.

None of those who have contributed to this page have had legal training. If you are at all uncertain about a specific image or about photography in a specific situation, you are advised to obtain advice from someone who is formally qualified to give it. CCBN members should be able to obtain such advice via CCBN Head Office. A large reference library should have several books and journals on Criminal Law which will provide further information, including details of some of the cases noted above. The Criminal Law Review for February 2003 contains an excellent article "Sentencing for Offences involving Child Pornography", by Alasdair A Gillespie, which is particularly recommended.

If you come across child pornography, report it immediately. If the source is on the 'net, contact the Internet Watch Foundation.

Last updated 2006 August 1 (all links checked - many revised for the second time in two years following reorganisation of the Home Office and other Websites).
 
Copyright © assigned to NUFF by author Tim Forcer

Naturist Photography homepage

Naturist Photography and children

Full NUFF Contents

New to naturism?

Copyright stuff

Comments and suggestions welcome