Read the following clause contained in the Serious Offences Bill, currently (November, 2014) going through Parliament:
“66 Possession of paedophile manual
(1) It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.
(2) It is a defence for a person (D) charged with an offence under this section:
(a) to prove that D had a legitimate reason for being in possession of the item;
(b) to prove that:
(i) D had not read, viewed or (as appropriate) listened to the item, and
(ii) D did not know, and had no reason to suspect, that it contained advice or guidance about abusing children sexually; or
(c) to prove that:
(i) the item was sent to D without any request made by D or on D’s behalf, and
(ii) D did not keep it for an unreasonable time.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine, or to both;
…
(c) on conviction on indictment, to imprisonment for a term not exceeding 3 years or to a fine, or to both.
(4) Proceedings for an offence under this section may be brought—
(a) in England and Wales, only by or with the consent of the Director of Public Prosecutions;
…
In this section:
“abusing children sexually” means doing anything that constitutes—
(a) an offence under Part 1 of the Sexual Offences Act 2003, …, against a person under 16, or
(b) an offence under section 1 of the Protection of Children Act 1978, … involving indecent photographs (but not pseudo-photographs), or doing anything outside England and Wales …that would constitute such an offence if done in England and Wales …;
“item” includes anything in which information of any description is recorded;
“prohibited item” means an item within subsection (1).”
Question 1:
a. What is the mode of trial for the proposed new offence of possession of a ‘paedophile manual’? (refer to the sub-clause in clause 66 which tells you this).
b. If enacted, will the new offence be a ‘conduct’ crime or a ‘result’ crime – or a ‘status’ crime? (Briefly explain the reason for your answer).
c.
(i) What is the actus reus of the proposed new offence?
(ii) Sub-clause (8) states that ‘abusing children sexually’ means doing anything that would amount to a crime under Part 1, Sexual Offences Act, 2003 against a person under 16. Briefly summarise the relevant offences against persons under 16 in Part 1 of that Act.
(iii) If enacted, would it be possible to commit the new possession crime by omission? Is causation required as part of the actus reus?
d. Will the new crime, if enacted, require proof of any mens rea? If so, what is it?
Question 2:
Read the following hypothetical scenario and then answer the question which follows. For the purposes of answering this question, assume that clause 66 has been enacted and is now section 66, Serious Offences Act 2014.
Jack is a university lecturer who is a specialist in criminology (the study of crime as a social phenomenon). His current research concerns sexual offending against children: Jack is interested in trying to identify factors that lead offenders to offend. Jack has already published some articles on this subject in academic criminology journals. Mark, who has just read one of these articles, traces Jack’s e-mail account and then sends Jack, by e-mail attachment, a recording he (Mark) made of himself abusing a child of 10. The recording is explicit and detailed. The ‘subject line’ in the e-mail is, ‘This will interest you’. Jack clicks on the e-mail attachment and sees that its title is ‘Mark: with a child.’ Jack closes the attachment down without listening to or watching it.
He opens the attachment some two weeks later and listens to and watches it. He is disgusted by it but decides to keep it for his work on offending.
The police, in the course of investigating Mark for various sex offences against children, eventually search Jack’s premises and seize his computer. They find the recording sent by Mark and arrest Jack on suspicion of an offence under section 66.
Advise Jack as to whether he is likely to be found liable for this crime, including discussion of any defence(s) which Jack might rely on.