On 29th October 2013 Derek Osbourne, the former Lib Dem leader of Kingston Borough Council, was sent to prison for two years for offences relating to child pornography. As a result of this conviction, Mr Osbourne will have to register as a sex offender for the next 10 years. All in all, it is a crushing fall from grace from a man who once had Parliamentary ambitions.
The facts aren’t entirely clear. It seems (from the Mirror) that the criminality was:
- Downloading 2,844 still images, and 293 movies, of children
- Sharing with others23 stills and seven movies
- Possessing 152 extreme images
It seems that the offences were as follows :
- 7 x Making indecent images of children
- 4 x Possessing an indecent image of a child
- 6 x Distributing an indecent image of a child
The first and third of these offences are contrary to s1 Protection of Children Act 1978. The maximum sentence for all these offences is 10 years imprisonment. The second offence is under s160 Criminal Justice Act 1988, with a maximum sentence of 5 years (as of 11th January 2001)
These would have been ‘specimen counts’ – this means that a sample of the images would have been charged (it is not practical to have an indictment with several thousand counts on it) on the understanding that Mr Osbourne would have been sentenced for all the images.
From the news reports it seems that there was some illegal images involving adults, but this was not reflected in the charges as set out above.
There are five different categories of child pornography (taken from the case of R v Oliver & Others  EWCA Crim 2766) depending on the activity that is depicted:
(1) images depicting erotic posing with no sexual activity;
(2) sexual activity between children, or solo masturbation by a child;
(3) non-penetrative sexual activity between adults and children;
(4) penetrative sexual activity between children and adults;
(5) sadism or bestiality.
Here, the levels are treated as being increasingly serious, and therefore attract a higher sentence,
It is not clear what Levels Mr Osbourne’s offending involved, but it seems that some at least were at a higher level.
There are Sentencing Guidelines for this offence (starting at page 108). Normally, we would look at the offending and see how that fits with the sentence. In the absence of further details about the Levels, we have to work backwards from the sentence.
It would seem to fall in the second category – distributing Level 4 or 5 images. This has a starting point of 3 years in prison. Given that Mr Osbourne pleaded guilty and received full ‘credit‘ this would tally with the sentence that was passed.
Why was he charged with ‘making’ an indecent image?
The Judge said ‘Of course you did not perpetrate that abuse directly yourself‘. Given that he did not ‘make’ the images (at least in any normal sense of the word, why was he charged with that offence?
This comes from a bit of creative judging. The offence dates from 1978, not only pre-internet, but pretty much pre-computing, as well as pre-taking child abuse as seriously as we do now.
In 1999 the Court of Appeal dealt with the case of R v Bowden  EWCA Crim 2270. Mr Bowden’s computer was found with various indecent images on it. At that time (and until 11th November 2001 – hence the inclusion of that date above) the offence was summary only.
This meant that the maximum sentence was only six months (and it had to be charged within six months from the commission of the offence). How do you get round that?
By holding that when a person copies or downloads an image from the internet (whether or not he prints it out) he ‘makes’ it. Problem solved.
When Parliament changed the law to increase the maximum sentence for possession, the criminal justice system was stuck with the Court of Appeal’s decision on ‘making’ (see, as examples, Smith  EWCA Crim 683 and Harrison  EWCA Crim 2976).
For this reason, Mr Osbourne had no option other than to plead guilty to making the images that were found on his computer. Of course, someone who downloads an image will (rightly) receive a lower sentence than someone who makes the image (as in taking the photograph), as the latter offence is clearly more serious.