On the 31st December 2013 the Sentencing Council [SC] published “Sexual Offences Definitive Guideline” [the New Guideline] which applies to all offenders aged 18 and older sentenced on or after the 1st April 2014.
This new scale to determine the indecency of child abuse images in UK courts. It now replaces the 5 levels of the ‘Copine scale’
The levels of seriousness the court will determine the offence category using the table below: –
* Distribution includes possession with a view to distributing or sharing images.
** Production includes the taking or making of any image at source, for instance the original image. Making an image by simple downloading should be treated as possession for the purposes of sentencing.
In the last two years, nearly 40 million child abuse images have been confiscated in England and Wales. The total comes from just five of the 43 police forces in England and Wales which were able to check their records.
The figures are in stark contrast to 1990 – before the internet became hugely popular – when the Home Office estimated there were just 7,000 hard copy images in circulation in the UK. Now, at least five times that amount are being confiscated every single day.
In some investigations the sheer scale of images is so immense that police concentrate on a sample.
The pictures are graded from category C – the lowest – to category A , which involves sadism and torture. Many of the pictures involve children under 10 and even babies appear in some
Indecent images of children refers to images or films (also known as child abuse images) and in some cases, writings depicting sexually explicit activities involving a child. Abuse of the child occurs during the sexual acts which are recorded in the production of child pornography, and several professors of psychology state that memories of the abuse are maintained as long as visual records exist, are accessed, and are “exploited perversely.”
The age of the child is now an aggravating factor and police officers should be encouraged to ensure that images are divided not only according to the categories set out above, but also as to whether the child is under 13 years, or 13 – 15 years and 16 – 17 years old.
When dealing with cases involving thousands of images police officers have approached the CPS in order to determine at what point they can stop looking at images. It is a matter for the police to decide how many images to view. If the police decide not to view all the images that is a risk analysis only they are able to take. There is of course always the danger that if only 100,000 images out of 500,000 are viewed that image 100,001 may show the suspect abusing a child.
As regards the offender’s involvement, the seriousness of an offence increased with his.her proximity to, and responsibility for, the original abuse. In considering the factors relevant to the level of sentence, the Court considered that possession, including downloading, of artificially created pseudo-photographs and the making of such images, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of real children.
1. Defendant A, who has specifically searched for and downloaded several dozen moving images involving penetrative sexual intercourse with children:
a) Under the Old Guideline this offender would have fallen into “Possession of a small number (as opposed to a large quantity) of images at Level 4”, this provided for a Starting Point of 26 weeks with a Sentencing Range of 4 weeks to 18 months custody. No Additional Aggravating Features were present.
b) Under the New Guideline he falls into Category A Possession with a Starting Point of 1 year with a Sentencing Range of 26 weeks to 3 years custody. There are Additional Aggravating Features regarding the specific search terms, and that the images are moving – these would move the offence up the Range.
2. Defendant B who has distributed non-penetrative images:
a) Under the Old Guideline depending on volume (large versus small number) and who it depicted, this offender could have found himself in one of 3 brackets with Starting Points of 12 months, 26 weeks and 12 weeks with associated Sentencing Ranges of 26 weeks to 2 years down to 4 weeks to 26 weeks.
b) Under the New Guideline he falls in Category B Distribution with a Starting Point of 1 year and a Sentencing Range of 26 weeks to 2 years.
These changes reflect the Responses to the Consultation which really focus on a desire for greater flexibility in sentencing.
Lastly, as with all of the Sentencing Council’s Definitive Guidelines, the Starting Points and Ranges apply “to all offenders irrespective of pleas or previous convictions” unlike the Sentencing Guidelines Council’s Definitive Guideline.