Article · PNLD


Legal Q&A Correct on the date of publication - 20th November 2023 Question: Since the legal age for marriage has increased from 16 to 18 years, what effect has this has had on the legislation covering indecent images of children? Answer: Section 1(1)(a), (b) and (c) of the Protection of Children Act 1978 contains offences in relation to the making, distribution or publishing of indecent photographs of children. The offences are subject to the provisions of sections 1A (marriage and other relationships) and 1B (exception for criminal proceedings, investigations etc.). In relation to the defence of marriage and other relationships, section 1A states: “1A(1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph or pseudo-photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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 or civil partners of each other, or (b) lived together as partners in an enduring family relationship. 1A(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 or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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 or civil partners of each other, or (b) lived together as partners in an enduring family relationship.” Section 160 of the of the Criminal Justice Act 1988 creates an offence of possessing indecent photographs of children aged under 18 years. This offence is also subject to a defence in relation to marriage and other relationships in section 160A. Section 160A states: 160A(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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, or civil partners of each other, or (b) lived together as partners in an enduring family relationship. 160A(2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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, or were civil partners of each other, or (b) lived together as partners in an enduring family relationship.” As illustrated, the terms of the defence for marriage or other relationships vary for each provision of the PCA 1978 and CJA 1988 but its common core requirements are: The defendant has to prove that (a) the photograph was of a child aged 16 or 17 and (b) at the time of the conduct in question he and the child were married or civil partners or lived together in an "enduring family relationship". This is a legal burden for the defence. The photograph showed the child alone or with the defendant but nobody else. There does not appear to be any proposed changes to be made to these provisions. We can also confirm that neither of the above provisions were affected by the changes made to section 2 of the Marriage Act 1949. Section 2 of the Marriage Act 1949 states that - “2 A marriage solemnized between persons either of whom is under the age of eighteen shall be void.” This provision came into force on the 27th February 2023. See the The Marriage and Civil Partnership (Minimum Age) Act 2022 (Commencement and Transitional Provisions) Regulations 2023 (SI 2023/88) makes transitional provision to void marriage and civil partnership schedules, which have been issued before these Regulations come into force, where either party will remain under the age of the 18 throughout the validity period of these schedules. Provision is also made to clarify that where marriage and civil partnership schedules have been issued before these Regulations come into force, and both parties will be aged 18 during the period of validity of the schedules, the schedules may not be used until both parties have turned 18. Therefore, any marriages solemnized before this date would remain lawful and proof of such must be brought as evidence by the suspect to raise this as a defence to the offence. As to evidence of ‘living together as partners in an enduring family relationship’, it is possible that this could apply to such offences in regard to a child aged 16 or over, but again evidence of such would need to be brought by the defendant in this regard and would be a matter for the CPS / court to confirm as such.

Legal Q&A

Correct on the date of publication - 20th November 2023

Question:

Since the legal age for marriage has increased from 16 to 18 years, what effect has this has had on the legislation covering indecent images of children?

Answer:

Section 1(1)(a), (b) and (c) of the Protection of Children Act 1978 contains offences in relation to the making, distribution or publishing of indecent photographs of children. The offences are subject to the provisions of sections 1A (marriage and other relationships) and 1B (exception for criminal proceedings, investigations etc.). In relation to the defence of marriage and other relationships, section 1A states:

“1A(1) This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph or pseudo-photograph of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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 or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.

1A(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 or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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 or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.”

Section 160 of the of the Criminal Justice Act 1988 creates an offence of possessing indecent photographs of children aged under 18 years. This offence is also subject to a defence in relation to marriage and other relationships in section 160A. Section 160A states:

160A(1) This section applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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, or civil partners of each other, or
(b) lived together as partners in an enduring family relationship.

160A(2) This section also applies where, in proceedings for an offence under section 160 relating to an indecent photograph or pseudo-photograph of a child, the defendant proves that the photograph or pseudo-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, or were civil partners of each other, or
(b) lived together as partners in an enduring family relationship.”

As illustrated, the terms of the defence for marriage or other relationships vary for each provision of the PCA 1978 and CJA 1988 but its common core requirements are:

The defendant has to prove that (a) the photograph was of a child aged 16 or 17 and (b) at the time of the conduct in question he and the child were married or civil partners or lived together in an "enduring family relationship". This is a legal burden for the defence.
The photograph showed the child alone or with the defendant but nobody else.

There does not appear to be any proposed changes to be made to these provisions. We can also confirm that neither of the above provisions were affected by the changes made to section 2 of the Marriage Act 1949. Section 2 of the Marriage Act 1949 states that -

“2 A marriage solemnized between persons either of whom is under the age of eighteen shall be void.”

This provision came into force on the 27th February 2023. See the The Marriage and Civil Partnership (Minimum Age) Act 2022 (Commencement and Transitional Provisions) Regulations 2023 (SI 2023/88) makes transitional provision to void marriage and civil partnership schedules, which have been issued before these Regulations come into force, where either party will remain under the age of the 18 throughout the validity period of these schedules. Provision is also made to clarify that where marriage and civil partnership schedules have been issued before these Regulations come into force, and both parties will be aged 18 during the period of validity of the schedules, the schedules may not be used until both parties have turned 18.

Therefore, any marriages solemnized before this date would remain lawful and proof of such must be brought as evidence by the suspect to raise this as a defence to the offence. As to evidence of ‘living together as partners in an enduring family relationship’, it is possible that this could apply to such offences in regard to a child aged 16 or over, but again evidence of such would need to be brought by the defendant in this regard and would be a matter for the CPS / court to confirm as such.

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