Huw Edwards has admitted making indecent images of children. That sounds as if he filmed the images and took the still photographs himself. In fact, he received them in WhatsApp conversations. So in what sense was the former BBC broadcaster “making” these unlawful images?
When first enacted, the Protection of Children Act 1978 made it an offence to “take, or permit to be taken, any indecent photograph of a child”. The words “or to make” were inserted by parliament, after “taken”, in 1994. At the same time, photographs were defined to include “data stored on a computer disc or by other electronic means which is capable of conversion into a photograph”.
Although there were some challenges to the concept, appeal judges held almost 25 years ago that “a person who either downloads images onto disc or who prints them off is making them”. That, said the Court of Appeal, was because parliament was trying to prevent not only the “original creation of images but also their proliferation”.
More recently, the courts have held that “making” can include receiving an image through social media, even if unsolicited and even if part of a group. It can also include live-streaming.
It seems to me that the extended definition given by the courts is consistent with long-standing principles of statutory interpretation. When the law was updated in 1994, email was still in its infancy and social media had not been invented. But judges are well used to developing the law to meet changing circumstances. The concept of “making” is surely broad enough to include creating an image on a phone or computer screen by accessing or downloading it.
There are, of course, exceptions – and not just for the security and intelligence agencies or other law enforcement bodies. You can have what would otherwise be an indecent photograph of someone aged 16 or 17 if it’s your spouse or partner. And charges cannot be brought unless the Director of Public Prosecutions agrees.
What, though, if someone maliciously sends you an indecent photograph? Or you happen to come across illegal material in legitimate circumstances? You have a defence if you can show you had not seen the photograph and had no cause to suspect it was indecent. Depending on the circumstances, though, that may be difficult to establish.
Is the law still fit for purpose? It has been extended over the years. In 1978, the Protection of Children Act offered no protection to children as young as 16. The law now covers “pseudo-photographs” – images that appear to be photographs. Merely to have an indecent photograph of a child in your possession is an offence, subject to some exceptions.
I see no sign that the law is failing to keep up with developing technology. Although the 1978 legislation referred to “film”, that was defined to include any form of video-recording. The deliberately broad definition clearly covers moving pictures created or shared on WhatsApp, even though few could have imagined nearly half a century ago that we would be able to do this with our phones.
Has the law gone too far? Is it destroying otherwise respectable citizens who have been targeted by criminals? I see no sign of that either. But if parliament thinks the judges are overreaching themselves, it can pass corrective legislation at any time.
As pornography becomes more readily available and easier to create, we must do all we can to protect its youngest victims.
A few of Edwards’s former colleagues have appeared to downplay his actions. I am not one of them. The longest prison sentences under the Protection of Children Act are reserved for those who generate child pornography. But our natural sympathy for people we thought we admired should not lead us to condone those willing to consume indecent images.
Human weakness and baser instincts do not deprive us of agency for our actions. Without customers, there would be no market.