Abstract
This chapter considers how the Law of England and Wales approaches webcam abuse. It considers both the substantive and procedural law. It takes as its focus operations using Sweetie 2.0. It considers what crimes would be committed by those who offend via webcam, particularly those who seek to solicit a child into meeting them, or engaging in sexual activity via webcams. It also considers whether, in cases such as Sweetie, it matters whether there was ever a real child. The second part of the chapter considers the procedural law, assessing potential evidential rules that may assist in prosecuting those who commit child sexual abuse via webcams.
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- 1.
Law of Wales Act 1535.
- 2.
Act of Union 1707 (Scotland) and Act of Union 1801 (Ireland).
- 3.
The Government of Ireland Act 1920 partitioned Ireland into Southern Ireland (20 counties) and Northern Ireland (6 counties). The partition never took effect under domestic law because the 20 counties declared independence (as the Irish Free State). Technically Ireland did not become an independent republic until 1948 (see Republic of Ireland Act 1848 (Irish legislation) and Ireland Act 1949 (UK legislation).
- 4.
For further discussion on this, see Gillespie and Weare 2017, Chapter 1.
- 5.
Known as the ‘Lords Spiritual’. These are the Archbishops of Canterbury and York, the bishops of London, Durham and Winchester and the next most senior 21 bishops. However, provision has now been made to allow female bishops to sit irrespective of seniority. The Lords Spiritual sit in the House only so long as they hold their bishopric.
- 6.
Known as the Lords Temporal. 92 hereditary peers remain eligible to sit in the House. An election is held when one of the 92 die amongst all of the hereditary peers and they elect a peer to represent them until their death or retirement.
- 7.
There are currently 839 peers eligible to sit in the House of Lords. Combined with the 650 members of the House of Commons, it means the legislature for the UK comprises nearly 1,500 members.
- 8.
Section 4, Human Rights Act 1998.
- 9.
Gillespie and Weare 2017, p. 174.
- 10.
Save that if a magistrate ignored pertinent legal advice then this decision could be challenged by administrative review and could render the magistrate personally liable for the costs of the litigation (Jones v. Nick [1977] RTR 72).
- 11.
Deputy District Judges also exist. District Judges are full-time judges and deputy judges are part-time judges who normally remain in independent practice as a lawyer.
- 12.
Wigs are no longer worn in civil cases in England and Wales but continue to be worn in criminal cases.
- 13.
There is no provision under English law to pick a jury through objections etc. (R v. Smith [2003] 1 WLR 2229).
- 14.
R v Wang [2005] UKHL 9.
- 15.
R v Galbraith (1981) 73 Cr App R 124.
- 16.
Criminal Justice and Courts Act 2015, s.52.
- 17.
For further information on this, see Gillespie and Weare 2017.
- 18.
See Hansard, HC Deb, vol 405, col 288, 14 May 2003.
- 19.
Hansard, HL Deb, col WA134: 18 November 2013.
- 20.
Arcarazo and Murphy 2014, p. 21.
- 21.
Williams 1965.
- 22.
Section 10, Sexual Offences Act 2003, discussed in Sect. 7.2.1.
- 23.
[2004] QB 1418.
- 24.
Ibid., at 1434.
- 25.
[2010] 1 WLR 2779.
- 26.
Gillespie 2012.
- 27.
It is conceded that the term ‘child pornography’ is a term that is disliked by many within law enforcement and child protection but it is used here as it is a term that is commonly used within international instruments, including the Lanzarote Convention (discussed in Gillespie 2011).
- 28.
Discussed in Sect. 7.2.3 below.
- 29.
Sexual Offences (Amendment) Act 2000.
- 30.
s.7(6), Protection of Children Act 1978.
- 31.
Sections 25–29, SOA 2003.
- 32.
Sections 18–24, SOA 2003. Positions of trust include teacher/pupil; medical practitioner/patient; social workers, probation officers etc.
- 33.
As the age of consent is 16, it is not the case that an offender should be checking whether the child is aged over 13 but over 16 because any sexual activity with someone under the age of 16 is illegal.
- 34.
Where physical (sexual) contact did take place (i.e. in respect of a real child) then Sections 5–9 and 16, SOA 2003 would apply.
- 35.
Section 21, SOA 2003. Positions of trust include teacher/pupil; medical practitioner/patient; social workers, probation officers etc.
- 36.
‘Caused’ usually means is responsible for bringing about the result. ‘Incite’ in this context means urging or persuading particular conduct.
- 37.
Section 1, Protection of Children Act 1978.
- 38.
s.44, Serious Crime Act 2007.
- 39.
This is defined in s.78, SOA 2003 as a two-part test. The test applies where a reasonable person ‘would consider that (a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual’.
- 40.
For an illustration of this, see R v Burford [2015] EWCA Crim 615.
- 41.
R v Honey [2015] EWCA Crim 371.
- 42.
Barrett 1997.
- 43.
Six months’ imprisonment if tried summarily.
- 44.
See s.7(6), Protection of Children Act 1978.
- 45.
s.7(4), 7(4A), PoCA 1978.
- 46.
[2000] 1 WLR 1427.
- 47.
[2005] EWCA Crim 3037.
- 48.
Or ‘pseudo-photograph’.
- 49.
R v Stanford [1972] QB 391.
- 50.
R v Graham-Kerr [1988] 1 WLR 1098.
- 51.
R v Owen [1988] 1 WLR 134.
- 52.
[2001] EWCA Crim 772.
- 53.
The principal attack was in respect of Article 10 (Freedom of Expression) and Article 8 (Right to Respect for Private Life).
- 54.
Gillespie 2011.
- 55.
(2005) 41 EHRR SE1.
- 56.
Article 7 requires the law to be accessible and foreseeable (see, for example, Cantoni v France App 17862/91.
- 57.
Take, permit to be taken, make, distribute, show, possession with intent to distribute; possession with intent to show; publish an advertisement conveying the advertiser distributes, publish an advertisement conveying the advertiser shows; conveying the advertiser intends to distribute or conveying the advertiser intends to show. Each of these could be for a photograph or pseudo-photograph.
- 58.
s.6, Protection of Children Act 1978.
- 59.
Section 1A provides a defence to 16 and 17-year-olds who are married or living in an enduring family relationship. Section 1B provides a defence for the purposes of law enforcement or where the security and intelligence services are legitimately involved. For a discussion on this see Gillespie 2004.
- 60.
[2005] 1 WLR 843.
- 61.
[2000] 1 WLR 1427.
- 62.
Triable either-way and punishable by up to five years’ imprisonment.
- 63.
[2000] QB 88.
- 64.
For a discussion on the reasoning behind this, see Gillespie 2011.
- 65.
See Sentencing Council 2013.
- 66.
Discussed in Akdeniz 2007.
- 67.
Section 1(1)(c), PoCA 1978.
- 68.
Section 1(1)(b), PoCA 1978.
- 69.
[2006] 1 WLR 775.
- 70.
Peebles v. HM Advocate (2007) JC 93.
- 71.
[2006] EWCA Crim 3363.
- 72.
s.62(2), CJA 2009.
- 73.
Section 62(6), (7), CJA 2009.
- 74.
s.65(6), CJA 2009.
- 75.
Ost 2010.
- 76.
s.62(1), CJA 2009.
- 77.
s.66(2), CJA 2009. The sentence is six months’ imprisonment when tried summarily.
- 78.
Edwards 1998.
- 79.
The OPA 1959 can, and sometimes is, used to criminalise the distribution of material that is not in itself illegal to possess: see, for example, R v Perrin [2002] EWCA Crim 747.
- 80.
English law recognises the law of complicity (s.8, Accessories and Abettors Act 1861) whereby a secondary party can be liable as a principal if he aids, abets, counsels or procures the commission of a crime. Aiding means assisting; abetting means encouraging; counselling is providing assistance in the preparation of the offence and procurement means to bring about the offence. The broadcasting of abuse is likely to be considered either abetting or procurement.
- 81.
Six months’ imprisonment when tried summarily.
- 82.
s.11, Sexual Offences Act 2003.
- 83.
[2006] EWCA Crim 2060.
- 84.
Ibid., at [16].
- 85.
Ibid., at [17].
- 86.
Gillespie 2004.
- 87.
A relevant offence in this context would include any offence within Part I of the Sexual Offences Act 2003 or anything that is done outside of England and Wales that would constitute an offence if done in England and Wales (see s.15(2)(b)). For our purposes the most relevant offences would those set out as ‘sexual abuse’ in the table above.
- 88.
Six months’ imprisonment if triable summarily.
- 89.
See Protection from Harassment Act 1997.
- 90.
Ost 2009.
- 91.
R v G [2010] EWCA Crim 1693.
- 92.
Protection of Children Act 1978.
- 93.
Fredette 2009.
- 94.
Discussed in Svensson 2006.
- 95.
Six months’ imprisonment when tried summarily.
- 96.
[2014] EWCA Crim 2995.
- 97.
Ibid., at [10].
- 98.
[2006] EWCA Crim 3311.
- 99.
[2009] EWCA Crim 1472.
- 100.
In Robson it constituted an attempt but in Jordan it was the substantive offence. Nothing turns on this point and it was just simply prosecutorial (and arguably judicial) preference as to how an indictment was drawn up and what constituted an ‘arrangement’.
- 101.
[2014] EWCA Crim 664.
- 102.
Six months’ imprisonment when tried summarily.
- 103.
Serious Crime Act 2015 (Commencement No 6) Regulations 2017 (SI 2017/451).
- 104.
Freedom of Expression.
- 105.
The ECtHR has generally allowed a greater margin of appreciation in respect of cases which involve minors being exposed to sexually-explicit content. See, for example, Handyside v UK A 24 (1976) and Müller v Switzerland 13 EHRR 212.
- 106.
[2006] EWCA Crim 2060.
- 107.
Section 1(4), Criminal Attempts Act 1981 states that the section applies to all indictable offences (subject to some exceptions which do not apply in these circumstances).
- 108.
s.4(1), Criminal Attempts Act 1981.
- 109.
[2015] EWCA Crim 915.
- 110.
Ibid., at [2].
- 111.
In the City of London and Metropolitan police the head of the police area is known as a Commissioner rather than chief constable.
- 112.
There is a single police force in Northern Ireland (Police Service of Northern Ireland) and a single force in Scotland (Police Scotland). Each has a chief constable in operational command.
- 113.
Aka MI5 and MI6 respectively.
- 114.
Recognised in statute by s.1B, PoCA 1978.
- 115.
The founding commander of CEOP, Jim Gamble, resigned in protest at the subsuming of CEOP into the NCA.
- 116.
It was established by the Prosecution of Offenders Act 1985.
- 117.
Over the past five years there has been a reduction in staffing by almost 2,400 people, including trial lawyers and caseworkers.
- 118.
See, for example, http://www.bbc.co.uk/news/uk-wales-35496012. Accessed 14 March 2016.
- 119.
Section 8(3), Data Retention and Investigatory Powers Act 2014.
- 120.
Also known as the ‘Budapest Convention’.
- 121.
Directive 2006/24/EC of the European Parliament and of the Council on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC. (2006) OJ L105/54. The most notable UK instrument implementing this is the Data Retention (EC Directive) Regulations 2009 (SI 2009/859).
- 122.
Digital Rights Ireland v Minister for Communications, Marine and Natural Resources C-293/12.
- 123.
Gillespie and Weare 2017.
- 124.
R (on the application of Davis) v. Secretary of State for the Home Department [2015] EWHC 2092 (Admin).
- 125.
Secretary of State for the Home Department v. Davis [2015] EWCA Crim 1185.
- 126.
s.87(1), IPA 2016.
- 127.
s.61(7)(b), IPA 2016.
- 128.
s.87(3), IPA 2016.
- 129.
s.87(9), IPA 2016.
- 130.
See Sect. 7.4.1 below.
- 131.
s.61(1),(2), IPA 2016.
- 132.
s.61(1), IPA 2016.
- 133.
s.261(3), Investigatory Powers Act 2016.
- 134.
Paragraph 726, Explanatory Notes explaining s.261(4), Investigatory Powers Act 2016.
- 135.
For an explanation of explanatory notes, see Gillespie and Weare 2017 p. 53.
- 136.
See s.61(7)(b), IPA 2016.
- 137.
s.62(2), IPA 2016.
- 138.
See para 180, Explanatory Notes.
- 139.
Paragraphs 184 and 181, Explanatory Notes.
- 140.
s.62(6), Explanatory Notes.
- 141.
s.76, IPA 2016.
- 142.
For a discussion, see McKay 2015.
- 143.
In England and Wales justices of the peace (also known as magistrates) do not generally hold any legal qualifications (and are known as ‘lay magistrates’) although they are obviously given training. Some justices do hold legal qualifications and they are known as District Judges (Magistrates’ Court).
- 144.
s.49, RIPA 2000.
- 145.
s.53, RIPA 2000.
- 146.
s.53(5A)(a), RIPA 2000.
- 147.
s.53(5A)(b), RIPA 2000.
- 148.
Chatterjee 2011.
- 149.
Choo 2014.
- 150.
[2009] 1 WLR 1489.
- 151.
The most senior judge in England and Wales.
- 152.
For a further discussion on this, see Mason and Gillespie 2017.
- 153.
[2011] EWHC 1966 (Admin).
- 154.
Section 3, IPA 2016.
- 155.
Section 15(2)(a), IPA 2016.
- 156.
England and Wales has 43 police forces, each of which is headed by a(n) (independent) chief constable.
- 157.
Section 18(1), IPA 2016.
- 158.
Section 19, IPA 2016.
- 159.
Section 23, IPA 2016.
- 160.
Section 23(2), IPA 2016.
- 161.
For a summary of judicial review grounds, see Barnett 2017, p. 615.
- 162.
Section 24, IPA 2016.
- 163.
Section 25(3), IPA 2016.
- 164.
Section 1(5)(b), IPA 2016.
- 165.
s.6, Human Rights Act 1998.
- 166.
s.7(1)(b), Human Rights Act 1998.
- 167.
s.7(1)(a), Human Rights Act 1998.
- 168.
Malone v UK (1991) 13 EHRR 448.
- 169.
s.229(1), IPA 2016.
- 170.
s.234, IPA 2016.
- 171.
s.234(6), IPA 2016.
- 172.
s.227(2), IPA 2016.
- 173.
s.227(4), IPA 2016.
- 174.
s.3, Constitutional Reform Act 2005.
- 175.
s.227(5), IPA 2016.
- 176.
s.228(4), IPA 2016.
- 177.
See Gillespie and Weare 2017, p 298.
- 178.
On this see Bingham 2011, a former Lord Chief Justice of England and Wales, who discusses the concept of judicial independence.
- 179.
s.57, RIPA 2000.
- 180.
See McKay 2015 for an overview.
- 181.
s.65(2)(a), RIPA 2000.
- 182.
s.65(1), RIPA 2000.
- 183.
Other than it does not have any inherent jurisdiction: cf the powers of the High Court of Justice. In essence, this means it has no common-law powers as its jurisdiction is conferred upon it by statute.
- 184.
See Reg 9, Investigatory Powers Tribunal Rules 2000 (SI 2000/2665).
- 185.
Three of High Court rank and one of circuit rank.
- 186.
This is the most senior of counsel in England and Wales.
- 187.
s.243, IPA 2016.
- 188.
http://www.ipt-uk.com/content.asp?id=30. Accessed 31 August 2017.
- 189.
Of course one difficulty is that if the surveillance is done correctly, the person who was the target will not know that they were under surveillance and cannot therefore complain about it.
- 190.
R v Sang [1980] AC 402 and R v Looseley [2001] UKHL 53.
- 191.
Section 78, Police and Criminal Evidence Act 1984.
- 192.
See the comments of Lord Nicholls in R v Looseley [2001] UKHL 53 at [17].
- 193.
[2001] UKHL 53.
- 194.
Ibid., at [23] per Lord Nicholls of Birkenhead.
- 195.
[2007] EWCA Crim 1118.
- 196.
Ibid., at [23].
- 197.
See the comments of the Court of Appeal in R v Shannon [2001] 1 WLR 51.
- 198.
Dyer 2015.
- 199.
s.9, SOA 2003.
References
Akdeniz Y (2007) Possession and dispossession: a critical assessment of defences in possession of indecent photographs of children cases. Criminal Law Review 274–288
Arcarazo D A, Murphy C (2014) EU security and justice law after Lisbon and Stockholm. Hart Publishing, Oxford
Barnett H (2017) Constitutional and Administrative Law, 12th edn. Routledge, Oxford
Barrett D (1997) Child Prostitution in Britain: Dilemmas and Practical Responses. The Children's Society, London
Bingham T (2011) The business of judging: Selected essays and speeches. Oxford University Press, Oxford
Chatterjee B (2011) New but not improved: a critical examination of revisions of the Regulation of Investigatory Powers Act 2000 encryption provisions. International Journal of Law and Information Technology (19): 264–284
Choo A L T (2014) The privilege against self-incrimination and criminal justice. Hart Publishing, Oxford
Dyer A (2015) The problem of media entrapment. Criminal Law Review 311–331
Edwards S S M (1998) The contemporary application of the Obscene Publications Act 1959. Criminal Law Review 843–853
Fredette K (2009) International legislative efforts to combat child sex tourism: evaluating the Council of Europe Convention on Commercial Child Sexual Exploitation. Boston College International and Comparative Law Review (32): 1–43
Gillespie A A (2004) Tinkering with child pornography. Criminal Law Review 361–368
Gillespie A A (2011) Child pornography: law and policy. Routledge, London
Gillespie AA (2012) Jurisdictional issues concerning child pornography. International Journal of Law and Information Technology (20): 151–177
Gillespie A A, Weare S (2017) The English legal system, 6th edn. Oxford University Press, Oxford
Mason S, Gillespie A A (2017) Encrypted data. In: Mason S (ed) Electronic evidence. Society of Advanced Legal Studies, London, pp 261–284
McKay S (2015) Covert policing: law and practice, 2nd edn. Oxford University Press, Oxford
Ost S (2009) Child pornography and sexual grooming: legal and societal responses. Cambridge University Press, Cambridge
Ost S (2010) Criminalising fabricated images of child pornography: a matter of harm or morality? Legal Studies (30): 230–256
Svensson N L (2006) Extraterritorial accountability: an assessment of the effectiveness of child sex tourism laws. Loyola of Los Angeles International and Comparative Law Review (28): 641–664
Williams G (1965) Venue and the ambit of the criminal law (part 3). Law Quarterly Review (81): 518–530
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Gillespie, A.A. (2019). Substantive and Procedural Legislation in England and Wales to Combat Webcam-Related Child Sexual Abuse. In: van der Hof, S., Georgieva, I., Schermer, B., Koops, BJ. (eds) Sweetie 2.0. Information Technology and Law Series, vol 31. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-288-0_7
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