On 22 July 2014, it came to our attention that a teenager in Nottinghamshire had been given a caution for sexting.
It appears that the young girl took a picture of her breasts on her mobile phone and sent them via a text message to her then boyfriend. Nothing wrong with that you might think. After the couple had an argument and the relationship ended, he sent the picture to some of his friends. The police became involved and both were cautioned. More details are available here.
News reports are pretty sketchy about the offence but it would appear to be under one of the following sections:
- Protection of Children Act 1978 s 1 (making, taking or permitting taking, distributing or showing indecent photographs)
- Criminal Justice Act 1988 s 160 (possession of indecent photographs)
- Coroners and Justice Act 2009 s 62 (possession of prohibited images of children)
Let’s re-wind. Both have been cautioned – but why?
Well, the legislation set out above prohibits the making, taking, distributing and possession of indecent images of children. But how are this couple caught by the legislation?
The need for caution – but not a caution
As is set out below, the law as it stands is deeply unsatisfactory. There is certainly a need for caution…
What is ‘indecent’ ?
The test for indecency is for the jury to decide based on what is the recognized standard of propriety. The circumstances and motive of the defendant are not relevant to the question of indecency, although they may be relevant to the question of whether the photograph was deliberately taken.
What if they are above the age of consent?
Well the news reports we have seen are silent on this fact, but unfortunately for the couple, even if they are above the age of consent, that doesn’t preclude the offence being made out – the definition of a child was altered in 2003 from someone under 16 to someone under 18. Therefore, two 17 year olds, in a loving relationship, sending intimate pictures of themselves to one another are committing an offence. Bizarre, huh?
Are there any defences?
Well yes, but they are not helpful in this context. Under the 1978 Act, there is a defence if the couple are married and living together (unlikely, you might think, for school-age children in a relationship). There is a similar defence for the offence under the 1988 Act. There are other defences which aren’t relevant here.
So, the law, as it stands, criminalises the sending of intimate images of those under 18, even where they are sent between two people in a relationship. Was that the purpose of the act? We can safely say that it was not. Granted, there are some child protection issues which arise, such as the need to protect children from themselves in the context of sexual activity whilst under the age of consent. However, those legitimate concerns do no justify the bizarre choice to include 16 and 17 year old people in a sexual relationship wishing to take, send and share sexual images of themselves.
Back to the case…
In respect of these two teenagers, it would appear the police became involved due to the young man deciding to share the image among his friends – clearly an unwise move and a spiteful thing to do.
CPS policy is “The decision by the police to administer a caution will ordinarily be made in conjunction with the CPS.”
“The prosecutor before offering a caution must apply his or her mind to the public interest factors. Every case should be decided upon its own facts.”
In relation to the cautions issued to the two individuals, one wonders whether anyone stopped and asked themselves whether this was an appropriate course of action to take; whether this was in the public interest; or even whether there was an offence committed (can you share an indecent image of yourself?).
There are two broad points to make. The first is about the law prohibiting the possession etc. of indecent images of children. It has been developed and amended in a piecemeal fashion, with new offences created which overlap with existing offences. Is it not time to scrap the old law and re-issue the legislation in a codified, more sensible fashion? It is firm view of mine that prosecutorial discretion (though necessary in certain circumstances) can be a dangerous thing. It is far better for the law to be sufficiently certain, clearly drafted and readily understood so that it criminalise that which ought to be criminal, and clearly leaves outside of its boundaries conduct which Parliament does not intend to be an offence. That way there can be no (or at least limited) grey areas.
The second point relates to the inappropriate use of cautions. We have written about this on the blog and spoken about it on the podcast; cautions can be a valuable tool. They can also be misused at both ends of the spectrum; a caution for rape is inappropriate, as is a caution where the individual fears a prosecution an accepts a caution without advice – perhaps they havent committed an offence at all.
This case raises some important issues for the criminal law to face up to, because currently, the situation is unsatisfactory.