DM, R. v

The offence of making an indecent photograph of a child under section 1(1)(a) of the Protection of Children Act 1978 does not require proof of an indecent purpose, intended distribution, or absence of consent. The limited consent defence in section 1A for a child aged 16 or 17 applies only to the relationships Parliament specified. It cannot be extended by interpretation to a brief sexual relationship.

The resulting interference with private life or expression is justified and proportionate. The statutory prohibition protects children from sexual exploitation while preserving a defined exception for committed relationships. A prosecutor's consent, although obtained after charge, validated the proceedings before the first substantive hearing where the charging decision had received proper evidential and public-interest scrutiny.

The appellant was convicted at Swindon Crown Court of two offences of making indecent photographs of a 17-year-old, contrary to section 1(1)(a) of the Protection of Children Act 1978. He had been acquitted of rape. His case was that sexual activity and the photographs were consensual, and that he believed the complainant to be 18.

He appealed against conviction. He contended that section 1A should extend to a consensual brief sexual relationship, so as to be compatible with Articles 8 and 10 of the Convention. He also challenged the validity and adequacy of the Director of Public Prosecutions’ consent, which was given after charge but before the first substantive hearing.

1. Appeal dismissed. The appellant had no right to make indecent photographs of a person under 18. Section 1(1)(a) of the Protection of Children Act 1978 did not criminalise consensual sexual intercourse with a 16- or 17-year-old. It criminalised making that child the subject of pornography.

2. The statutory elements were deliberately and intentionally making the photograph, the subject being under 18, and the photograph being indecent. The maker’s motive, intended use, and any belief in consent were immaterial. Section 1A created a defence only for marriage, civil partnership, or cohabitation as partners in an enduring family relationship. Extending it to a one-night stand or brief sexual relationship would rewrite, rather than interpret, the legislation and would go against its grain.

3. Any interference with Articles 8 and 10 was lawful, necessary and proportionate. The prohibition afforded effective protection against the exploitation of children. Parliament had struck the balance by allowing a confined exception for defined committed relationships. A broader defence would weaken protection and reintroduce inquiries into the circumstances and motives for making images. On the appellant’s own account the complainant was asleep when the images were made, so consent would not in any event arise.

4. Section 1(3) required consent to institute proceedings. The charging decision had received appropriate evidential and public-interest scrutiny. Consent was formally given by a Crown Prosecutor under section 1(7) of the Prosecution of Offences Act 1985 before the first substantive hearing. The prosecution was justified despite the rape acquittal, and there was no basis for discontinuing it.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2011] EWCA Crim 2752.
• Swindon Crown Court: the appellant was convicted of two counts contrary to section 1(1)(a) of the Protection of Children Act 1978 and conditionally discharged for 24 months on each count, concurrently. He was acquitted of rape.