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Explanatory Memorandum to Sexual Offences (Northern Ireland) Order 2008

Article 42: Indecent photographs of persons aged 16 or 17

7.90.This Article redefines a "child" for the purposes of the Protection of Children (Northern Ireland) Order 1978 ("the 1978 Order") as a person under 18 years, rather than under 16 years, of age. This change means the offences under that Order of taking, making, permitting to take, distributing, showing, possessing with intent to distribute, and advertising indecent photographs or pseudo-photographs of children will now also be applicable where the photographs concerned are of children of 16 or 17 years of age. The same change applies to the offence of possessing an indecent photograph or pseudo-photograph of a child at Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (Article 15(5) of that Order applies the 1978 Order definition of "child").

7.91.However, the clause also creates a number of conditions which if satisfied will mean that the defendant is not guilty of an offence under Article 3(1)(a), (b) or (c) of the 1978 Order (provided that the offence charged relates to a photograph and not a pseudo-photograph).

7.92.The conditions in relation to an offence under Article 3(1)(a) of the 1978 Order (taking or making indecent photographs) are as follows:

7.93.Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that at the time of the taking or making of the photograph he and the child were married or living together as partners in an enduring family relationship (Article 3B(1)).

7.94.Secondly, the photograph must not be one that shows a person other than the child and the defendant (Article 3B(3)).

7.95.Thirdly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child consented (Article 3B(4)).

7.96.If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in Article 3(1)(a) of the 1978 Order. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution also prove that the child did not consent and that the defendant did not reasonably believe that the child consented (Article 3B(4)).

7.97.The conditions in relation to an offence under Article 3(1)(b) of the 1978 Act (distributing or showing indecent photographs) are as follows:

7.98.Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over, and that either at the time of distributing or showing it, or at the time of obtaining it, he and the child were married or living together as partners in an enduring family relationship (Article 3B(1) and (2)).

7.99.Secondly, the photograph must not be one that shows a person other than the child and the defendant (Article 3B(3)).

7.100.If either of these conditions is not satisfied, the prosecution need only prove the offence as set out in Article 3(1)(b) of the 1978 Order. But if both the conditions are satisfied, the defendant is not guilty of the offence unless the prosecution prove that the showing or distribution was to a person other than the child (Article 3B(5)).

7.101.The conditions in relation to an offence under Article 3(1)(c) of the 1978 Order (being in possession of indecent photographs with a view to their being distributed or shown) are as follows:

7.102.Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that either at the time of his possession of it with a view to distributing or showing it, or at the time when he obtained it, he and the child were married or living together as partners in an enduring family relationship (Article 3B(1) and (2)).

7.103.Secondly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented (or the defendant reasonably believed that the child consented) to the photograph's being in the defendant's possession, and also as to whether the defendant had the photograph in his possession with a view to distributing or showing it to a person other than the child (Article 3B(6)).

7.104.Thirdly, the photograph must not be one that shows a person other than the child and the defendant (Article 3B(3)).

7.105.If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in Article 3(1)(c) of the 1978 Order. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution also prove either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed to a person other than the child.

7.106.Similar provision is made in relation to an offence under Article 15 of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order 1988 (possession of indecent photograph of a child). The conditions are as follows:

7.107.Firstly, the defendant must prove that the photograph in question was of the child aged 16 or over and that at the time when he possessed the photograph, or at the time when he obtained it, he and the child were married or living together as partners in an enduring family relationship (Article 15A(1) and (2)).

7.108.Secondly, the photograph must not be one that shows a person other than the child and the defendant (Article 15A(3)).

7.109.Thirdly, the defendant must show that there is enough evidence to raise an issue as to whether the child consented to the photograph being in his possession or as to whether the defendant reasonably believed that the child so consented (Article 15A(4)).

7.110.If any of these conditions is not satisfied, the prosecution need only prove the offence as set out in Article 15(1) of the Criminal Justice (Evidence, Etc.) (Northern Ireland) Order1988. But if the three conditions are satisfied, the defendant is not guilty of the offence unless the prosecution prove that the child did not consent and that the defendant did not reasonably believe that the child consented (Article 15A(4)).

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