DM v REGINA

Factual and Procedural Background

On 8th September 2010 at the Crown Court at The City, the Defendant was convicted of two counts of making indecent photographs of a child contrary to s.1(1)(a) of the Protection of Children Act 1978. On 15th October 2010, the Defendant was conditionally discharged for 24 months on both counts, with terms concurrent. The Defendant’s appeal against conviction raised two issues: whether the conviction was compatible with his rights under the European Convention on Human Rights and Fundamental Freedoms ("the Convention"), and whether the prosecution was properly instituted with valid consent from the Director of Public Prosecutions ("DPP").

The alleged victim, born 19th January 1992 and thus 17 at the time of the alleged offences, was the Defendant’s neighbour. Evidence included a pre-recorded witness interview in which the complainant described limited interaction with the Defendant prior to the alleged offences. On the evening of 4th September 2009, after consuming alcohol and smoking cannabis at her home, the Defendant visited her. The complainant was found naked asleep on a sofa the next morning, with evidence suggesting the Defendant had intercourse with her while she was asleep and had taken indecent photographs and a video of her undressed.

The Defendant denied wrongdoing, claiming he believed the complainant was 18 and that the sexual activity and photography were consensual. The Defendant was arrested and interviewed on 5th September 2009, maintaining a consistent account that the sexual activity was consensual. The Crown’s case was that the intercourse was non-consensual and that the photographs were taken without consent.

Legal Issues Presented

1. Whether the conviction under s.1(1)(a) of the Protection of Children Act 1978 is compatible with the Defendant’s rights under Articles 8 (right to respect for private and family life) and 10 (freedom of expression) of the European Convention on Human Rights.
2. Whether the prosecution was properly instituted with valid consent from the Director of Public Prosecutions, as required by s.1(3) of the Protection of Children Act 1978.

Arguments of the Parties

Appellant's Arguments

• The Defendant argued that the statutory defence under s1A(4) of the Protection of Children Act 1978 should apply to "one night stands" or brief sexual relationships involving 16 or 17 year olds, allowing a defence based on consent or reasonable belief in consent to the taking of photographs.
• It was submitted that the current interpretation of the Act, which limits the defence to those married or living in an enduring family relationship, is arbitrary, unjustified, and disproportionate, infringing Articles 8 and 10 of the Convention.
• The Defendant contended that the taking of consensual photographs during lawful sexual activity should not attract criminal liability, particularly where no evidence of intended distribution exists.
• The Defendant further argued that the prosecution lacked valid consent from the DPP at the time of institution, violating procedural safeguards and Article 6 rights under the Convention.
• Reliance was placed on proportionality tests from De Freitas and Daly, asserting that the measures impairing rights were not no more than necessary and failed to strike a fair balance between individual rights and community interests.
• The Defendant highlighted inconsistencies in the law, noting that sexual intercourse with a 16 or 17 year old is lawful with reasonable belief in consent, yet taking indecent photographs of the same person without marriage or cohabitation is criminalised without a defence of consent.

Respondent's Arguments

• The Crown submitted that the jury was properly directed that the offence under s1(1)(a) is one of strict liability regarding the taking of indecent photographs of a person under 18, with motivation or consent irrelevant.
• Reference was made to the Court of Appeal decision in Graham-Kerr [1988] confirming that only the deliberate taking and indecency of the photograph are relevant to guilt.
• The Crown relied on case law including R v Price [2006] and Smethurst [2002], affirming the necessity of strict liability offences to protect children from exploitation.
• The Crown argued the amendments under the Sexual Offences Act 2003, raising the age of a child to under 18, were consistent with a broad legislative scheme to protect children from sexual exploitation.
• The Crown contended that the proportionality tests were met, and that the legislative objective of protecting children justified the limitations on the defence of consent under s1A.
• Regarding the consent to prosecution, the Crown submitted that proper scrutiny was undertaken by Crown prosecutors, with consent given before the first substantive hearing, fulfilling the statutory requirements under s1(3) of the 1978 Act.
• The Crown rejected the contention that prosecution should have ceased following acquittal on rape charges, emphasizing the victim’s complaint and the evidential basis for prosecuting the photographic offences.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Graham-Kerr [1988] 1 WLR 1098	Confirmed that only the deliberate taking and indecency of the photograph are relevant to guilt under s1(1)(a) of the 1978 Act; motivation and circumstances irrelevant.	The court applied this principle to reject arguments that consent or motivation should affect liability for taking indecent photographs.
R v Price [2006] EWCA Crim 3363	Confirmed that offences under s1(1)(b) of the 1978 Act (distribution/showing) are strict liability offences justified by public policy.	Supported the Crown’s position that strict liability is appropriate to protect children from exploitation.
R v Smethurst [2002] 1 Cr. App. R. (6)	Held that s1 of the 1978 Act is compatible with Articles 8 and 10 ECHR and justified to protect children from exploitation.	The court relied on Smethurst to affirm the necessity of the offence and reject claims of incompatibility with Convention rights.
R (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26	Set out the three-stage test for proportionality in assessing limitations on fundamental rights.	The court applied the proportionality framework to assess the statutory scheme’s compatibility with Convention rights.
De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69	Established the three-stage proportionality test for restricting fundamental rights.	Used as a foundational test to evaluate the statutory limits on rights under Articles 8 and 10.
Huang v Secretary of State for the Home Department [2007] UKHL 11	Emphasized the need to balance societal interests with individual rights in proportionality assessments.	Supported the court’s approach to balancing protection of children with individual rights.
G v United Kingdom (Application no. 37334/08)	Held that prosecution of sexual offences against minors was within the margin of appreciation and necessary for protecting vulnerable children.	Reinforced that prosecutorial decisions to protect children do not violate Article 8 rights if proportionate.
Sheldrake v DPP [2005] 1 AC 264	Outlined the strong interpretive obligation under s3(1) Human Rights Act 1998 to read legislation compatibly with Convention rights.	The court acknowledged limits on interpretation where it would go against the grain of legislation.
Ghaidan v Godin-Mendoza [2004] 2 AC 557	Confirmed that s3 HRA cannot be used to contradict clear legislative intent.	Supported the court’s refusal to reinterpret s1A to include brief sexual relationships not contemplated by Parliament.
Regina (F (A Child)) v Secretary of State for the Home Department [2011] 1 AC 331	Reaffirmed the application of the three-stage proportionality test and the importance of balancing rights and legislative objectives.	Guided the court’s proportionality assessment regarding the statutory scheme.
R v G [2009] 1 AC 92	Confirmed that prosecutorial decisions do not engage Article 8 if proportionate and within margin of appreciation.	Supported the court’s view that continuation of prosecution was justified.

Court's Reasoning and Analysis

The court analysed the statutory framework under the Protection of Children Act 1978 and amendments made by the Sexual Offences Act 2003, particularly s1 and s1A. It recognised that the offence under s1(1)(a) is one of strict liability: the prosecution must prove the deliberate taking of indecent photographs of a person under 18, with no requirement to prove consent or motivation. The defence under s1A is limited to those married or cohabiting in an enduring family relationship with the child aged 16 or over, and does not extend to brief sexual encounters.

The court rejected the Defendant’s submission that s1A should be interpreted to include "one night stands," noting that such an interpretation would require rewriting the statute, exceeding permissible judicial interpretation under s3 of the Human Rights Act 1998. The court emphasised that the legislation’s clear wording reflects a deliberate parliamentary choice to provide protection to children from exploitation, balancing this against individual rights under Articles 8 and 10 of the Convention.

In applying the proportionality test from De Freitas and subsequent authority, the court found that the legislative objective of protecting children from sexual exploitation is sufficiently important, the measures are rationally connected to that objective, and the means impairing rights are no more than necessary. The court noted that the legislation does not criminalise consensual sexual activity with 16 or 17 year olds, only the making of indecent photographs.

The court also considered international instruments including the UN Convention on the Rights of the Child and EU Framework Decisions, which define a child as under 18 and require protection from exploitation, supporting the domestic legislative scheme.

Regarding the consent to prosecution, the court found that proper consent from the Director of Public Prosecutions was obtained in due course before substantive hearings, fulfilling statutory requirements and providing an effective safeguard.

Holding and Implications

The court DISMISSED the appeal against conviction.

The holding confirms that the Protection of Children Act 1978, as amended, is compatible with Articles 8 and 10 of the European Convention on Human Rights and that the statutory defence under s1A is limited to married or cohabiting relationships, excluding brief sexual encounters. The decision affirms the strict liability nature of offences under s1 of the 1978 Act and underscores the legislative intent to provide robust protection for children under 18 from sexual exploitation through indecent photography.

The court also held that the prosecution was properly instituted with valid consent from the Director of Public Prosecutions, and that the timing of such consent did not violate procedural fairness or Convention rights.

No new precedent altering the interpretation of the Protection of Children Act 1978 was established; rather, the court reiterated established principles balancing individual rights and child protection.