Section 1 Protection of Children Act 1978
Section 1(1) of the PCA 1978 creates a number of offences and has been given a wide interpretation by the courts. These are either way offences with a maximum term of imprisonment of ten years if convicted on indictment.
For an offence under section 1 PCA 1978 the prosecution has to prove:
That the defendant deliberately and/or knowingly either made, took, or permitted to be taken, distributed or showed indecent photographs or pseudo-photographs, or possessed them with a view to their being distributed or shown, published or caused to be published an advertisement for indecent photographs.
The photograph or pseudo-photograph was indecent. Indecent photograph includes an indecent film, or a copy of a photograph or film, or computer data capable of conversion into a photo a copy. See section 7 PCA 1978. The test for indecency is for the jury to decide based on what is the recognized standard of propriety. R v Stamford [1972] 2 Q.B. 391. 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 or made, R v Graham-Kerr 88 Cr App R 302 CA; R v Smethurst [2002] 1 Cr App R 6, CA. Archbold 31 - 114.
The photograph or pseudo-photograph was of a child section 7(6) of the PCA 1978. Archbold 31 - 114. The definition of a child was altered from 16 to 18 years by section 45(1) of the Sexual Offences Act 2003, in force from 01 May 2004. The age of a child is ultimately for the jury to determine. It is a finding of fact for the jury, and expert evidence is inadmissible on the subject, since it is not a subject requiring the assistance of experts R v Land [1998] 1 Cr App R 301, CA. See also section 2(3) PCA 1978.