Protection of
Children (Jersey) Law 1994
A LAW to prohibit the taking or making of indecent images
of children and to penalise the possession, distribution, showing and
advertisement of such indecent images[1]
Commencement [see endnotes]
1 Interpretation
(1) In
this Law –
“child”,
subject to paragraph (5), means a person under the age of 18 years;
“film”
includes any form of video-recording, video-streaming
or other moving image of a real subject;
“image”
includes –
(a) a
moving or still image (including a still image captured by any means from a
moving image), whether produced by a means of recording, by computer graphics
or otherwise; and
(b) data
(stored by any means) that is capable of conversion into such an image;
“indecent
image” means an indecent photograph, indecent pseudo-photograph or
prohibited image;
“non-photographic
image” means an image that is not a photograph or pseudo-photograph;
“prohibited
image” has the meaning given by Article 2B;
“pseudo-photograph”
means an image that is not, but appears to be, a photograph.[2]
(2) References
in this Law 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 Law as indecent photographs of
children and so as respects pseudo-photographs.[3]
(4) References
in this Law to a photograph include the negative as well as the positive
version.
(5) 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 Law 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.[4]
(6) References
to an indecent pseudo-photograph include a copy of an indecent pseudo-photograph,
and references to a prohibited image include a copy of a prohibited image.[5]
(7) For
the purposes of this Law, a person is to be regarded as distributing an
indecent image if he or she parts with possession of it to, or exposes or
offers it for acquisition by, another person.[6]
2 Indecent photographs or
pseudo-photographs of children[7]
(1) A
person who –
(a) takes, or permits to be taken, or makes, any
indecent photograph or pseudo-photograph of a child;
(b) has in his or her possession such indecent
photographs or pseudo-photographs;
(c) distributes, or shows such indecent
photographs or pseudo-photographs;
(d) has in his or her possession such indecent
photographs or pseudo-photographs, with a view to their being distributed or
shown by himself, herself or others; or
(e) publishes or causes to be published any
advertisement likely to be understood as conveying that the advertiser
distributes or shows such indecent photographs or pseudo-photographs, or
intends to do so,
is guilty of an offence.[8]
(2) A
person guilty of an offence under paragraph (1)(a), (c), (d) or (e) shall
be liable to imprisonment for a term of 10 years and to a fine.[9]
(3) A
person guilty of an offence under paragraph (1)(b) shall be liable to
imprisonment for a term of 5 years and to a fine.[10]
(4) Proceedings
for an offence under this Article shall not be instituted except by or with the
consent of the Attorney General.[11]
(4A) Where
a person (“the defendant”) is charged with an offence under
paragraph (1)(a) or (b), it shall be a defence for him or her to prove
that all of the conditions in paragraph (4B) are
met.[12]
(4B) The
conditions are –
(a) that
the child was aged 16 or older at the time when the photograph or
pseudo-photograph was taken or made;
(b) that
the child was the spouse or civil partner of the defendant at the time when the
photograph or pseudo-photograph was taken or made, and at all times at which it
was in the possession of the defendant;
(c) that
the photograph or pseudo-photograph did not show or appear to show any person
who was neither the child nor the defendant; and
(d) that
the child consented to the taking or making of the photograph or
pseudo-photograph, and to any possession of it by the defendant, or the
defendant reasonably believed that the child so consented.[13]
(5) Where
a person is charged with an offence under paragraph (1)(b) –
(a) either of the defences referred to in paragraph (6)
shall be available to him or her; and
(b) it shall be a defence for him or her to
prove that the photograph or pseudo-photograph was sent to him or her without
any prior request made by him or her or on his or her behalf and that he or she
did not keep it for an unreasonable time.[14]
(6) Where
a person is charged with an offence under paragraph (1)(c) or (d), it
shall be a defence for him or her to prove –
(aa) that –
(i) all of the conditions in paragraph (4B) are met,
(ii) he
or she intended the showing or distribution to be to the child and to no other
person, and
(iii) no
showing or distribution occurred to any person other than to the child;
(a) that he or she had a legitimate reason for
distributing or showing the photographs or pseudo-photographs or, as the case may be, having them in his or her possession;
or
(b) that he or she had not seen the photographs or
pseudo-photographs and did not know, nor had any cause to suspect, them to be
indecent.[15]
(7) [16]
2A Evidence
of age[17]
In proceedings under this
Law relating to any indecent photograph of a child 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 or she was then under the age of 16 years.
2B Prohibited
image of a child: interpretation[18]
(1) This
Article applies for the purposes of Articles 2C to 2E.
(2) A
prohibited image is an image that –
(a) is
non-photographic;
(b) is pornographic;
(c) falls
within paragraph (6); and
(d) is
grossly offensive, disgusting or otherwise of an obscene character.
(3) An
image is “pornographic” if it is of such a nature that a reasonable
person would assume it to have been produced solely or principally for the
purpose of sexual arousal.
(4) If
an image (as made, found in the person’s possession, distributed or
shown) forms part of a series of images, the question whether the image is of
such a nature as is mentioned in paragraph (3) is to be determined by
reference to –
(a) the
image itself; and
(b) if
the series of images is such as to be capable of providing a context for the
image, the context in which it occurs in the series of images.
(5) So,
for example, if –
(a) an
image forms an integral part of a narrative constituted by a series of images;
and
(b) having
regard to those images as a whole, they are not of
such a nature that they must reasonably be assumed to have been produced solely
or principally for the purpose of sexual arousal,
the image may, by virtue
of being part of that narrative, be found not to be pornographic, even though
it might have been found to be pornographic if taken by itself.
(6) An
image falls within this paragraph if it –
(a) is an
image that focuses solely or principally on a child’s penis or vagina, or
on the region of a child’s anus; or
(b) portrays
any of the acts mentioned in paragraph (7).
(7) Those
acts are –
(a) an
act of masturbation by, of, involving or in the presence of a child;
(b) an
act of penetration by, of, involving or in the presence of a child, if the
penetration is –
(i) of
a person’s vagina or anus by a part of another person’s body or by
anything else,
(ii) of
a person’s mouth by another person’s penis,
(iii) of a
person’s vagina, anus or mouth by an
animal’s penis,
(iv) of an
animal’s vagina, anus or mouth by a
person’s penis.
(8) For
the purpose of this Article –
(a) the
references to body parts, generally or in particular, of
a person or animal, and to penetration, are to be construed in accordance with
the Sexual Offences
(Jersey) Law 2018; and
(b) it is
irrelevant whether a person or animal is dead, alive
or imaginary.
2C Making,
possessing, distributing or showing a prohibited
image of a child[19]
(1) A
person commits an offence if the person –
(a) makes
a prohibited image of a child;
(b) has
such an image in his or her possession;
(c) distributes
or shows such an image;
(d) has
in his or her possession such an image, with a view to it being distributed or
shown by himself, herself or others; or
(e) publishes
or causes to be published any advertisement likely to be understood as
conveying that the advertiser distributes or shows such images,
or intends to do so.
(2) This
Article is subject to Article 2E.
(3) Proceedings
for an offence under this Article shall not be instituted except by or with the
consent of the Attorney General.
(4) A
person guilty of an offence under paragraph (1)(a) or (b) is liable to
imprisonment for a term of 3 years and to a fine.
(5) A
person guilty of an offence under paragraph (1)(c), (d) or (e) is liable
to imprisonment for a term of 5 years and to a fine.
(6) Articles 4
and 5 apply in relation to a prohibited image, and to an offence under this
Article or an exclusion or defence under Article 2D, as they apply in relation
to an indecent photograph or pseudo-photograph of a child, and to an offence, exclusion or defence under Article 2.
2D Defence:
possession of prohibited image of child[20]
It is a defence to a
charge of an offence under Article 2C(1)(b) for the defendant to prove any
of the following –
(a) that
the defendant had a legitimate reason for being in possession of the image concerned;
(b) that
the defendant had not seen the image concerned and did not know, nor had any
cause to suspect, it to be a prohibited image of a child;
(c) that
the defendant –
(i) was
sent the image concerned without any prior request having been made by or on
behalf of the defendant, and
(ii) did
not keep it for an unreasonable time.
2E Exclusion:
prohibited image of child in classified work[21]
(1) Article 2C
does not apply to an excluded image.
(2) An
“excluded image” is an image that forms part of a series of images
contained in a recording of the whole or part of a classified work.
(3) But
such an image is not an “excluded image” if –
(a) it is
contained in a recording of an extract from a classified work; and
(b) it is
of such a nature that it must reasonably be assumed to have been extracted
(whether with or without other images) solely or principally for the purpose of
sexual arousal.
(4) If
an extracted image is one of a series of images contained in the recording, the
question whether the image is of such a nature as is mentioned in paragraph (3)(b)
is to be determined by reference to –
(a) the
image itself; and
(b) if
the series of images is such as to be capable of providing a context for the
image, the context in which it occurs in the series of images,
and Article 2B(5)
applies in connection with determining that question as it applies in
connection with determining whether an image is pornographic.
(5) In
determining for the purposes of this Article whether a recording is a recording
of the whole or part of a classified work, any alteration attributable
to –
(a) a
defect caused for technical reasons or by inadvertence on the part of any
person; or
(b) the
inclusion in the recording of any extraneous material (such as advertisements),
is to be disregarded.
(6) Nothing
in this Article is to be taken as affecting any duty of a designated authority
to have regard to Article 2C (along with other enactments creating
criminal offences) in determining whether a video work is suitable for a
classification certificate to be issued in respect of it.
(7) In
this Article –
“classified
work” means (subject to paragraph (8)) a video work in respect of
which a classification certificate has been issued by a designated authority
(whether before or after the commencement of this Article);
“classification
certificate”, “designated authority” and “video
work” have the same meaning as in the Video Recordings
(Jersey) Law 1990;
“extract”
includes an extract consisting of a single image;
“recording”
means any disc, tape or other device capable of
storing data electronically and from which images may be produced (by any
means).
(8) Article 1(9)
of the Video Recordings
(Jersey) Law 1990 applies for the purpose of this Article in
relation to alterations as it applies for the purpose of that Law.
2F Defence:
indecent image necessary for function of prevention or prosecution of crime[22]
(1) For
the purpose of paragraph (2) –
(a) a
relevant act is an act of copying, possessing, distributing or showing an
indecent image;
(b) a
relevant charge is a charge for an offence under this Law that is constituted
by a relevant act;
(c) a
relevant function is –
(i) a
power or duty of a police officer, or
(ii) a
power or duty of any other person, by virtue of that person’s office or
employment, that relates to the prevention, detection or investigation of
crime, or the conduct of criminal proceedings, in any part of the world.
(2) It
is a defence to a relevant charge for the defendant to prove that, at the time
of the relevant act it was necessary for the defendant to carry out that
relevant act for the purpose of exercising a relevant function of the
defendant.
3 Offences by corporations
(1) Where
a body corporate is guilty of an offence under this Law 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 or
she, 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, paragraph (1)
shall apply in relation to the acts and defaults of a member in connection with
his or her functions of management as if he or she were a director of the body
corporate.
4 Entry, search
and seizure
(1) If
the Bailiff is satisfied by information on oath, given by a police officer,
that there is reasonable ground for suspecting that, in any premises there are
indecent photographs or pseudo-photographs of children and that such
photographs or pseudo-photographs –
(a) are or have been taken or made there; or
(b) are or have been shown there, or are kept
there with a view to their being distributed or shown,
the Bailiff may issue a
warrant under his or her hand authorizing any police officer to enter and
search the premises using such reasonable force as is necessary within 14 days
from the date of the warrant, and to seize and remove any articles which he or
she believes with reasonable cause to be or include indecent photographs or
pseudo-photographs of children taken, made or shown on
the premises, or kept there with a view to their being distributed or shown.[23]
(2) Articles
seized under the authority of the warrant, and not returned to the occupier of
the premises, shall be brought before the Magistrate.
(3) In
this Article and in Article 5 –
“premises”
includes land, buildings, movable structures, vessels, vehicles, aircraft and hovercraft.[24]
5 Forfeiture
(1) The
Magistrate may issue a summons to the occupier of the premises in which were
found any articles brought before him or her in pursuance of Article 4 to
appear on a day specified in the summons before the court to show cause why
they should not be forfeited.
(2) Subject
to paragraph (3), if the court is satisfied that the articles are indecent
photographs or pseudo-photographs of children, taken or made on the premises or
shown there or kept there with a view to their being distributed or shown, the
court shall order them to be forfeited.[25]
(3) If
the person summoned under paragraph (1) does not appear, the court shall
not make an order unless service of the summons is proved.
(4) In
addition to the person summoned, any other person being the owner of the articles
brought before the court, or the persons who made them, or any other person
through whose hands they had passed before being seized, shall be entitled to
appear before the court on the day specified in the summons to show cause why
they should not be forfeited.
(5) Where
any of the articles are ordered to be forfeited under paragraph (2), any person
who appears, or was entitled to appear, to show cause against the making of the
order may appeal to the Inferior Number of the Royal Court.
(6) If
as respects any articles brought before it the court does not order forfeiture,
the court may if it thinks fit order the person on whose information the
warrant for their seizure was issued to pay such costs as the court thinks
reasonable to any person who has appeared before it to show cause why the
photographs should not be forfeited.
(7) Costs
ordered to be paid under paragraph (6) shall be recoverable as a civil
debt.
(8) Where
a person is convicted under Article 2(1) of an offence, the court by which
he or she is convicted shall order that any indecent photographs or
pseudo-photographs of children in the possession of the prosecution for or in
connection with the prosecution of the offence shall be forfeited.[26]
(9) Where
a person –
(a) charged
with an offence under Article 2(1)(b), proves in accordance with Article 2(5)(b)
that the photographs or pseudo-photographs were sent to him or her without
prior request made by him or her or
on his or her behalf and that he or she had not kept them for an unreasonable
time; or
(b) charged
with an offence under Article 2(1)(b), (c) or (d), proves in accordance
with Article 2(6)(b) that he or she had not seen the photographs or
pseudo-photographs and did not know, nor had any cause to suspect, them to be
indecent,
and the person is
accordingly acquitted of the charge, the court by which he or she is acquitted
may nevertheless order that any indecent photographs or pseudo-photographs of
children in the possession of the prosecution for, or in connection with, the
prosecution shall be forfeited.[27]
(10) An
order made under paragraph (2) or (8), including an order made on appeal,
shall not take effect until the expiration of the ordinary time within which an
appeal may be instituted or, where such an appeal is duly instituted, until the
appeal is finally decided or abandoned.
(11) For
the purposes of paragraph (10) –
(a) an application for a case to be stated or
for leave to appeal shall be treated as the institution of an appeal; and
(b) where a decision on appeal is subject to a
further appeal, the appeal is not finally decided until the expiration of the
ordinary time within which a further appeal may be instituted or, where a
further appeal is duly instituted, until the further appeal is finally decided
or abandoned.
(12) In
this Article, except in paragraphs (8) and (9), “court” means
the Magistrate’s Court.[28]
6 Citation
This Law may be cited as the Protection of Children (Jersey)
Law 1994.