Protection of Children Act 1978

1 Indecent photographs of children.E+W

(1)[F1Subject to sections 1A and 1B,] it is an offence for a person—

(a)to take, or permit to be taken [F2or to make], any indecent photograph [F2or pseudo-photograph] of a child F3. . .; or

(b)to distribute or show such indecent photographs [F4or pseudo-photographs]; or

(c)to have in his possession such indecent photographs [F4or pseudo-photographs], with a view to their being distributed or shown by himself or others; or

(d)to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [F4or pseudo-photographs], or intends to do so.

(2)For purposes of this Act, a person is to be regarded as distributing an indecent photograph [F5or pseudo-photograph] if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(3)Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(4)Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—

(a)that he had a legitimate reason for distributing or showing the photographs [F6or pseudo-photographs] or (as the case may be) having them in his possession; or

(b)that he had not himself seen the photographs [F6or pseudo-photographs] and did not know, nor had any cause to suspect, them to be indecent.

(5)References in the M1Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.

(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F7

(7)In paragraph 1 of the Schedule of Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to be tried by a United Kingdom court), after sub-paragraph (b)(viii) (inserted by the Sexual Offences Act 1956) there shall be added—

“(ix)section 1(1)(a) of the Protection of Children Act 1978”.

Textual Amendments

F2Words in s. 1(1)(a) inserted (3.2.1995) by 1994 c. 33, s. 84(2)(a); S.I. 1995/127, art. 2(1), Sch1

F3Words in s. 1(1)(a) repealed (3.2.1995) by 1994 c. 33, ss. 84(2)(a), 168(3), Sch.11; S.I. 1995/127, art. 2(1), Sch1

F4Words in s. 1(1)(b)-(d) inserted (3.2.1995) by 1994 c. 33, s. 84(2)(b); S.I. 1995/127, art. 2(1), Sch1

F5Words in s. 1(2) inserted (3.2.1995) by 1994 c. 33, s. 84(2)(c); S.I. 1995/127, art. 2(1), Sch 1

F6Words in s. 1(4)(a)(b) inserted (3.2.1995) by 1994 c. 33, s. 84(2)(d); S.I. 1995/127, art. 2(1), Sch1

Modifications etc. (not altering text)

C2The text of s. 1(7) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

Marginal Citations

[F81AMarriage and other relationshipsE+W

(1)This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he—

(a)were married [F9or civil partners of each other], or

(b)lived together as partners in an enduring family relationship.

(2)Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he—

(a)were married [F10or civil partners of each other], or

(b)lived together as partners in an enduring family relationship.

(3)This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4)In the case of an offence under section 1(1)(a), if sufficient evidence is adduced 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 so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

(5)In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

(6)In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both—

(a)as to whether the child consented to the photograph being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, and

(b)as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child,

the defendant is not guilty of the offence unless it is proved 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 or shown to a person other than the child.]

Textual Amendments

[F111B Exception for criminal proceedings, investigations etc. E+W

(1)In proceedings for an offence under section 1(1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that—

(a)it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,

(b)at the time of the offence charged he was a member of the Security Service [F12or the Secret Intelligence Service], and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of [F13that Service], or

(c) at the time of the offence charged he was a member of GCHQ , and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

(2) In this section “ GCHQ ” has the same meaning as in the Intelligence Services Act 1994. ]

Textual Amendments

F12Words in s. 1B(1)(b) inserted (8.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 69(2)(a), 153(2)(b)

F13Words in s. 1B(1)(b) substituted (8.7.2008) by Criminal Justice and Immigration Act 2008 (c. 4), ss. 69(2)(b), 153(2)(b)

2 Evidence.E+W

(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F14

(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F15

(3)In proceedings under this Act [F16relating to indecent photographs of children] a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of [F1718].

Textual Amendments

F16Words in s. 2(3) inserted (3.2.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 37(2); S.I. 1995/127, art. 2(1), Sch1 Appendix B

F17Word in s. 2(3) substituted (1.5.2004) by Sexual Offences Act 2003 (c. 42), ss. 45(2), 141; S.I. 2004/874, art. 2

Modifications etc. (not altering text)

3 Offences by corporations. E+W

(1)Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2)Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Modifications etc. (not altering text)

4 Entry, search and seizure.E+W

(1)The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises F18..., there [F19is an indecent photograph [F20or pseudo-photograph] of a child].

(2)The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises F21. . ., and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs [F22or pseudo-photographs] of children . . . F23.

F24(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F25(4) In this section “ premises ” has the same meaning as in the Police and Criminal Evidence Act 1984 (see section 23 of that Act). ]

Textual Amendments

F18Words in s. 4(1) omitted (1.4.2005) by virtue of Courts Act 2003 (c. 39), s. 110(1), Sch. 8 para. 199(2), 10; S.I. 2005/910, art. 3(y)

F20Words in s. 4(1) inserted (3.2.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 37(3)(a); S.I. 1995/127, art. 2(1), Sch.1 Appendix B

F21Words in s. 4(2) repealed (3.2.1995) by 1994 c. 33, s. 168(1)(3), Sch. 9 para. 23(a), Sch.11; S.I. 1995/127, art. 2(1), Sch.1 Appendix C

F22Words in s. 4(2) inserted (3.2.1995) by 1994 c. 33, s. 168(2), Sch. 10 para. 37(3); S.I. 1995/127, art. 2(1), Sch.1 Appendix B

Modifications etc. (not altering text)

C5S. 4(2): power of seizure extended (prosp.) by 2001 c. 16, ss. 50, 52-55, 68, 138(2), Sch. 1 Pt. 1 para. 21

S. 4(2) modified (prosp.) by 2001 c. 16, ss. 55, 68, 138(2), Sch. 1 Pt. 3 para. 98 (with s. 57(3))

C6S. 4(2) powers of seizure extended (1.4.2003) by Criminal Justice and Police Act 2001 (c. 16), ss. 50, 138(2), Sch. 1 para. 21 (with ss. 52-54, 68); S.I. 2003/708, art. 2(a)

C8S. 4(3) applied (prosp.) by 2001 c. 16, ss. 70, 138(2), Sch. 2 Pt. 1 para. 10(2)(b)

[F265 Forfeiture.E+W

The Schedule to this Act makes provision about the forfeiture of indecent photographs and pseudo-photographs.]

Textual Amendments

Modifications etc. (not altering text)

C10S. 5 applied (prosp.) by 2001 c. 16, ss. 70, 138(2), Sch. 2 Pt. 1 para. 10(2)(b)

6 Punishments.E+W

(1)Offences under this Act shall be punishable either on conviction on indictment or on summary conviction.

(2)A person convicted on indictment of any offence under this Act shall be liable to imprisonment for a term of not more than [F27ten] years, or to a fine or to both.

(3)A person convicted summarily of any offence under this Act shall be liable—

(a)to imprisonment for a term not exceeding six months; or

(b)to a fine not exceeding the prescribed sum for the purposes of [F28section 32 of the Magistrates’ Courts Act 1980] (punishment on summary conviction of offences triable either way: £1,000 or other sum substituted by order under that Act), or to both.

Textual Amendments

F27Word in s. 6(2) substituted (11.1.2001) by 2000 c. 43, s. 41(1); S.I. 2000/3302, art. 2(a)

7 Interpretation. E+W

(1)The following subsections apply for the interpretation of this Act.

(2)References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.

(3)Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children [F29and so as respects pseudo-photographs].

[F30( 4 )References to a photograph include—

(a)the negative as well as the positive version; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.]

[F31(4A)References to a photograph also include—

(a)a tracing or other image, whether made by electronic or other means (of whatever nature)—

(i)which is not itself a photograph or pseudo-photograph, but

(ii)which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a);

and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph.]

(5)“Film” includes any form of video-recording.

[F32(6)“Child”, subject to subsection (8), means a person under the age of [F3318].

( 7 ) “ Pseudo-photograph ” means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

(8)If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(9)References to an indecent pseudo-photograph include—

(a)a copy of an indecent pseudo-photograph; and

(b)data stored on a computer disc or by other electronic means which is capable of conversion into [F34an indecent pseudo-photograph].]

Textual Amendments

F29Words in s. 7(3) inserted (3.2.1995) by 1994 c. 33, s. 84(3)(a); S.I. 1995/127, art. 2(1), Sch1

F30S. 7(4) substituted (3.2.1995) by 1994 c. 33, s. 84(3)(b); S.I. 1995/127, art. 2(1), Sch 1

F32S. 7(6)-(9) inserted (3.2.1995) by 1994 c. 33, s. 84(3)(c); S.I. 1995/127, art. 2(1), Sch1

F33 Word in s. 7(6) substituted (1.5.2004) by Sexual Offences Act 2003 (c. 42) , ss. 45(2) , 141 ; S.I. 2004/874 , art. 2

Modifications etc. (not altering text)

C12 S. 7 applied (1.5.2004 for E.W.N.I., 1.5.2004 for S.) by Sexual Offences Act 2003 (c. 42) , s. 141 , Sch. 3 para. 97(b) ; S.S.I. 2004/138 , art. 2 ; S.I. 2004/874 , art. 2 ; S.S.I. 2004/138 , art. 2 ; S.I. 2004/874 , art. 2

C13S. 7(4)(7) applied (prosp.) by 1997 c. 39, ss. 2(1), 11(2) (with ss. 1(4), 11(3))

8 Similar provision for Northern Ireland.E+W+N.I.

An Order in Council under paragraph 1(1)(b) of Schedule 1 to the M2Northern Ireland Act 1974 (legislation for Northern Ireland in the interim period) which contains a statement that it operates only so as to make for Northern Ireland provision corresponding to this Act—

(a)shall not be subject to paragraph 1(4) and (5) of that Schedule (affirmative resolution of both Houses of Parliament); but

(b)shall be subject to annulment by a resolution of either House.

Marginal Citations

9 Short title, extent and commencement.E+W

(1)This Act may be cited as the Protection of Children Act 1978.

(2)This Act except section 1(6) shall not extend to Scotland and except for that subsection, and subject also to section 8 shall not extend to Northern Ireland.

(3)Section 8 of this Act shall come into force forthwith, but otherwise this Act shall come into force at the expiration of one month beginning with the date it is passed.