R v William Peter Jaycock

For sentencing under section 1(1)(a) of the Protection of Children Act 1978, possession and production are not separate statutory offences. The distinction is a guideline categorisation. Digital manipulation that creates a new indecent pseudo-photograph will generally be treated as production, rather than possession, even where source images were downloaded. Simple downloading remains possession. Production of a synthetic image is less serious than producing an image of actual child abuse, so the sentence should normally begin at the lower end of the production range before aggravating and mitigating factors are considered. Whether the offender took a source photograph is not determinative, although it may aggravate the offence.

The appellant pleaded guilty to three offences of making indecent photographs or pseudo-photographs of children under section 1(1)(a) of the Protection of Children Act 1978, together with an offence under section 9(1)(a) of the Sexual Offences Act 2003. He was sentenced at Basildon Crown Court to a total of three years and ten months' imprisonment, including activation of an earlier suspended sentence. The sentencing judge treated digitally manipulated images as production offences under the relevant guideline. The appeal raised whether the images should instead have been sentenced as possession offences, and whether the judge had wrongly treated adult bodies in source images as children's bodies.

The appeal against sentence was dismissed. The court also directed that a reporting restriction be corrected and that no statutory surcharge be payable.

1. Statutory offence and sentencing categorisation. The Protection of Children Act 1978 creates offences of making indecent photographs or pseudo-photographs. It does not create separate statutory offences of possession and production. The possession and production distinction arose from the sentencing guideline and the duty under section 59 of the Sentencing Code to follow a relevant guideline.
2. Guideline approach. Under section 60(4) of the Sentencing Code, the sentencer must select the category which most resembles the offender's case. The guideline states that production includes, but is not limited to, taking or making an original image. Simple downloading is treated as possession for sentencing purposes.
3. Manipulated pseudo-photographs. By superimposing children's faces on adult sexual images, the appellant created new indecent pseudo-photographs. That conduct was substantially more serious than merely downloading an image made by another person and was properly treated as production. The court explained that the factual distinction identified in R v Norval [2015] EWCA Crim 1694 remained important: synthetic images are not equivalent in culpability or harm to images recording actual child abuse. However, any wider proposition in Norval that such images must always be sentenced as possession went beyond its ratio and was not followed. The court preferred and applied the approach in R v Bateman [2020] EWCA Crim 1333. Whether the offender took a source photograph is not determinative, though it may be an aggravating feature.
4. Sentence and errors. The judge was correct to move to the lower end of the production range before considering aggravating and mitigating factors. Although he wrongly described the adult bodies in the source photographs as children's bodies, his careful analysis did not show that the error significantly affected the sentence. The total sentence was not manifestly excessive. The appeal was dismissed. The record was amended to show that no statutory surcharge was payable. The court also directed that the relevant order concerning C1 be made under section 45A of the Youth Justice and Criminal Evidence Act 1999, giving lifelong protection.

• Court of Appeal (Criminal Division) — [2024] EWCA Crim 954: appeal against sentence dismissed. The record was amended to remove the statutory surcharge, and a reporting restriction was corrected.
• Basildon Crown Court — His Honour Judge Hurst sentenced the appellant to three years and ten months' imprisonment after guilty pleas, including activation of an earlier suspended sentence.