Matthew Ness appeared in the Court of Appeal in R v Jaycock [2024] EWCA Crim 954, an appeal against sentence from Basildon Crown Court, which has clarified the law on the correct approach to sentencing cases concerning indecent “pseudo-photographs” of children.
The appellant was sentenced for possession of indecent photographs of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. The relevant images were “pseudo-photographs”, created by the appellant by superimposing the faces of children from lawfully-held photographs onto the bodies of adult women depicted in pornographic images using computer software.
The relevant sentencing guideline for the offence categorises offences in respect of both the content of the image and whether the offender possessed (e.g. downloaded or viewed), distributed, or produced (i.e. created) the image. The starting point for an offender sentenced for possessing the most serious category of image (Category A) is 1 years’ imprisonment, whilst those sentenced for producing a category A image face a starting point of 6 years’ imprisonment.
Matthew’s client was sentenced on the basis that he produced the relevant images. The main issue raised by the appeal was whether pseudo-photographs created by superimposition from otherwise lawful images should fall to be sentenced under the category of “possession”.
The appeal drew to the attention of the Court of Appeal two previously decided authorities that were in conflict, R v Norval [2015] EWCA Crim 1694 and R v Bateman [2020] EWCA Crim 1333.
In Norval, a case involving near-identical facts whereby the appellant had been sentenced in the Crown Court on a ‘production’ basis, the Court of Appeal held, seemingly as a matter of general principle, that:
"In our judgment, production offences do not include those where pseudo images of this nature are made using images taken from other sources. Whilst in a technical sense such images are produced, it seems to us that the production of such an image should be treated as an offence of possession rather than one of production within the guidelines.”
However, five years later in the appeal of Bateman, another case involving similar facts whereby the appellant had been sentenced on a ‘production’ basis, and in which the Court of Appeal was not directed to its earlier decision in Norval, the Court dismissed the appeal, holding that it was wrong to construe the guideline as requiring a rigid dichotomy between an image which was possessed and an image which was produced or created. The Court drew the following general conclusions from the sentencing guideline:
"… (1) mere downloading without more amounts to possession; (2) the taking of an image at source (for example the original image) is producing or creating that image; (3) because of the word 'include' in the explanatory note in the Guidelines the description in (2) is not a definitive statement of the circumstances when an image is produced or created; (4) the divide between possession and production/ creation is not fixed in stone and the concepts are not mutually exclusive; common sense indicates that an image might start as a merely downloaded copy (and be possessed) but then be produced into something altogether different and more offensive. There are in real life innumerable permutations."
Matthew invited the Court, in accordance with Young v Bristol Aeroplane Company Limited [1944] KB 718, to choose which of the conflicting decisions of Norval and Bateman it should follow, submitting that the approach in Norval should be preferred.
The Court held that, to the extent Norval laid down a rule of general application that was inconsistent with Bateman, that the approach in Bateman was to be preferred, and that conduct involving superimposing a picture of a child’s face onto a sexually explicit picture of an adult body amounts to the creation of a new indecent image of a child and generally should be treated for sentencing purposes as a production offence.
The effect of the decision is that Norval has been effectively overruled, save for the observation that the Court in Norval correctly identified that the production of pseudo-photographs is not commensurate in terms of culpability and harm with the production of photographs of actual child sexual abuse, and that those sentencing should consider a downward adjustment within the range for production to reflect this.
Unfortunately, the judgment did not address what might be considered a flaw within the reasoning in Bateman, namely the suggestion that there is no rigid demarcation between possession and production because there are “innumerable permutations” by which an image may start off as a mere downloaded copy and be “possessed” but then be “produced” into something altogether more offensive. This overlooks the fact that the “source images” used to create the indecent pseudo-photographs in all three cases considered were not themselves unlawful to possess and were not therefore “possessed” within the meaning of the guideline until they were combined to create an indecent pseudo-photograph, an act which the Court in Jaycock held must be considered as amounting to production.
The reality is therefore that the Court in Jaycock has reinforced the dichotomous approach taken by the Court in Norval, albeit substituting production for possession as the default category into which such images fall.
Matthew was instructed by Ann Blyth-Cook & Co Solicitors.
Matthew Ness prosecutes and defends in a wide array of criminal cases including large-scale drug trafficking, robbery, fraud, and serious violent and sexual offences. He specialises in general crime, drawing on his extensive experience in criminal litigation to instil confidence in clients and solicitors alike.
