Factual and Procedural Background
The Appellant, aged 60, pleaded guilty before a magistrates' court to three offences of making indecent photographs or pseudo-photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. The charges related to eight category A indecent images, two category B images, and one category C image. The Appellant also admitted failing to comply with notification requirements under the Sexual Offences Act 2003. He was committed for sentence to the Crown Court.
The Appellant was subject to a suspended sentence from July 2021 for earlier offences of making indecent photographs of children, which was activated as part of the sentencing process for the current offences. Police discovered images on the Appellant’s computer, including images of two teenage girls known to him (referred to as C1 and C2) and one unidentified child under 12. Some images had been created by superimposing the faces of C1 and C2 onto adult pornographic images, including some with the Appellant's own face, for sexual gratification.
The Crown Court judge sentenced the Appellant following reference to relevant case law and the Sentencing Council’s definitive guideline, categorising the offences as production rather than possession of pseudo-photographs. The judge imposed concurrent sentences totaling three years and ten months' imprisonment, including activation of the suspended sentence.
Additionally, directions under the Youth Justice and Criminal Evidence Act 1999 were made to protect the identities of C1, C2, and an adult, with the court directing lifelong anonymity for C1, consistent with the other protected parties. The court also ensured lifelong protection for victims of the earlier sexual offences.
Legal Issues Presented
- Whether offences involving the creation of indecent pseudo-photographs by superimposing faces of children onto adult images should be categorised as production or possession offences for sentencing purposes under the Protection of Children Act 1978 and the Sentencing Council guideline.
- Whether the judge erred in treating the bodies depicted in the images as those of children when they were lawful adult photographs, potentially affecting the sentence.
- The appropriateness of the total sentence imposed on the Appellant, including the activation and reduction of the suspended sentence.
- The proper application of anonymity orders under the Youth Justice and Criminal Evidence Act 1999 concerning the victims.
Arguments of the Parties
Appellant's Arguments
- The judge incorrectly categorised the offences as production rather than possession, resulting in a higher sentencing starting point. The Appellant argued that the court should have followed the decision in R v Norval, which treated similar pseudo-photograph offences as possession.
- The judge erred in finding that the photographs used as the source for the adult bodies were images of children, when they were lawful adult images. This error allegedly increased the sentence unjustifiably.
- The Appellant contended that the decision in R v Bateman diverged from Norval and that this court should prefer the reasoning in Norval, relying on the principle established in Young v Bristol Aeroplane Company Limited to resolve conflicting authority.
Respondent's Arguments
- The respondent argued that Norval and Bateman could be distinguished on their facts, with Bateman being more analogous because the offender had photographed the child himself, as in the present case.
- In the event of conflict, Bateman should be preferred, as the guideline explicitly states that production includes the taking or making of images at source.
- The gravamen of a production offence is the creation of a new indecent image, whereas possession does not involve such creation.
- The respondent accepted the judge's error in identifying the bodies as children but submitted that the error did not significantly affect the sentence length.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Oliver [2002] EWCA Crim 2766 |
Seriousness of offences increases with offender's proximity to original abuse; no sentencing guideline then in place. |
Referenced as an early authority on the seriousness of production offences. |
| R v Norval [2015] EWCA Crim 1694 |
Creation of pseudo-images by superimposition should be treated as possession, not production, for sentencing. |
The court considered this decision but ultimately preferred a different approach. |
| R v Bateman [2020] EWCA Crim 1333 |
Production includes taking or making images at source; the boundary between possession and production is not rigid. |
The court preferred Bateman's approach, holding that the Appellant's conduct amounted to production for sentencing. |
| Young v Bristol Aeroplane Company Limited [1944] KB 718 |
Allows courts to choose between conflicting Court of Appeal decisions. |
Appellant invoked this to prefer Norval over Bateman; the court declined to do so. |
Court's Reasoning and Analysis
The court recognised that the Protection of Children Act 1978 does not differentiate between possession and production offences; the distinctions arise in sentencing guidelines. The Sentencing Council’s guideline categorises offences by seriousness and distinguishes possession, distribution, and production, with production offences carrying higher starting points.
Applying the guideline, the court found it beyond doubt that the Appellant had produced the images by digitally manipulating existing photographs to create new indecent pseudo-photographs. This conduct was substantially more serious than mere possession, as it involved creating new images that invaded the privacy and rights of the children and adults depicted and risked wider circulation.
The court rejected the Appellant’s submission that Norval required sentencing as possession. It noted that Norval’s broader statements were not binding and were inconsistent with the later decision in Bateman, which the court preferred. The court emphasized that production includes but is not limited to taking images at source, and the fact that the Appellant took some original photographs was not determinative but could be an aggravating factor.
The court concluded that offences involving superimposing a child's face onto adult bodies to create new indecent images should generally be treated as production offences for sentencing. However, sentencers should adjust starting points to reflect the relative culpability and harm, as the actual sexual abuse of a child is more serious than creation of pseudo-images.
Regarding the second ground, the court found the judge erred in identifying the bodies in the images as children but was not persuaded this error materially affected the sentence. The judge’s sentencing analysis did not rely on the ages of the bodies depicted.
The court found no other basis to deem the sentence manifestly excessive.
Finally, the court noted an error in the imposition of a statutory surcharge relating to earlier offences, ordering the record to be amended to show no surcharge payable.
Holding and Implications
The appeal is DISMISSED.
The court upheld the Crown Court’s approach to categorising the offences as production for sentencing purposes, affirming that the creation of indecent pseudo-photographs by superimposition constitutes production under the Sentencing Council’s guideline. The judge’s sentence was not manifestly excessive, and the error regarding the ages of bodies depicted did not materially affect the sentence. The statutory surcharge imposed below was corrected.
The decision confirms the application of the Sentencing Council guideline in cases involving pseudo-photographs created by digital manipulation, preferring the reasoning in Bateman over Norval where they conflict. No new precedent beyond this clarification was established.