ei Total Productions wrote:
So let me see, if someone is convicted of a sexual offense, they can look at things, like a proclivity to pedophelia when considering sentence?  OK, that is fair enough.  That statute has nothing to do with indecency, and I promise you, if you cited the full statute, it will have nothign to do with the matter at hand.

This is starting to concern me because, your arguments are simply damaging your credibility.  by your logic having two or more photos of your daughter eating pizza with her school principle could be illegal.

No matter how vague the statute is, a jury still has to be convinced that an image is indecent to be illegal.  The statute you cited is unrelated to that.  Indecency isn't an element of the sentencing guideleins.

Sooner or later your courts are going to provide guidance on what the statute means, but it doesn't mean that an an innocent bikini photo is now illegal. I am going to have to be a lot more careful in the future about accepting your analysis of these kinds of issues.  Your argument here is just severly flawed.

You are misreading what I just posted. THAT is NOT the underlying statute but the antecedents to 1): a charging decision; and 2): a sentencing decision.

As the statute itself does not define "indecent" one can only rely on what criteria might attract a sentence where at the same time no sentence can be laid down without a conviction.

Without a definition of "indecent" this is the only way to get at the nub of the question of what the UK law would see as that in a courtroom and that would attract all three of a charge, a conviction and a sentence.

YOU: "...by your logic having two or more photos of your daughter eating pizza with her school principle could be illegal..."

ME: I never made reference to one's own children did I? Though there have been investigations on that very basis of intimate family photographs, e.g. some parent's own kids in the bathtub. And one notorious and very high profile one of those a few years ago where part of the argument circulated around the question of "Who takes a whole roll of film of such a thing?" as opposed, I guess, to only one or two frames as snapshots. For a photographer that would be a big "DUH!!!" but for the Crown Prosecution Service it became a central argument that some serious wrongdoing was afoot.

The statute is in fact the Protection of Children Act 1976 which limits itself to the offences thusly but does not define "indecent" in the context of the offences anywhere in the statute. Whereas the sentencing guidelines [above] do set out some criteria hinting, and at least that, what would be seen as potentially indecent in the eyes of the judiciary. And indeed we can be speaking to only one statute here.:

Protection of Children Act 1976
Offences

Currently***, the Act defines as offences, roughly:

    * To take or make any indecent photograph or pseudo-photograph of a child;
    * To show or distribute such (pseudo-)photographs;
    * To possess such (pseudo-)photographs with intent to show or distribute them;
    * To advertise for showing or distributing such (pseudo-)photographs.

NOTE*** This refers to, and incorporates, two amendments that are in the wording above re: the offences. The addition of a pseudo-photograph did not appear in the original Act.

The second amendment also added that a tracing, drawing, or other graphic work, even a Xerox copy of a photograph, incorporating indecency and appearing to be a depiction of someone under 18, that was not an actual photograph but would be a pseudo-photograph, could be charged in the same way as if it were an actual photograph.

If you go back to Page 1 of the thread you will find a large photo posted by Davepit which he rightly points out MIGHT be found to be indecent by some particular combination of UK prosecutor, UK judge and UK jury. And I fully agree with his assessment of it. Especially as the camera is obviously at the level of, and taking a shot straight into, her spread legged crotch in spite of her being clothed in that area. It is nothing more or less than US v. Knox but interpreted in a UK context.

Studio36

Brooklyn Bridge Images wrote:

Both those case are about nudity not the type images the OP is talking about...

With respect both of these cases are about the police being idiots about intrpretation of the obscenity laws in the UK. Exactly what should be worrying th OP.

Chanel Rene wrote:

A 16 year old in swimwear.... oh no! Does this mean I'm going to jail?


C'mon people!
First off, she's a female photographer.
Secondly, swimwear and bikini top with jeans isn't all THAT racy.

Everyone's definition of "glamour" is different. But from what I can tell from the OP, we're talking amped up Senior Pictures, not the cover of Playboy.

I have nothing to add to this subject but damn girl That's a hot pic

Brooklyn Bridge Images wrote:
Both those case are about nudity not the type images the OP is talking about...

Linux99 wrote:
With respect both of these cases are about the police being idiots about intrpretation of the obscenity laws in the UK. Exactly what should be worrying th OP.

Show me a case where a female photographer took a shot of a 16 year old in a bikini top and jeans, in a totally non-sexual pose and then was arrested for indecency.

ei Total Productions wrote:

Brooklyn Bridge Images wrote:
Both those case are about nudity not the type images the OP is talking about...

Show me a case where a female photographer took a shot of a 16 year old in a bikini top and jeans, in a totally non-sexual pose and then was arrested for indecency.

Do you want it on a tuesday or a thrusday? and what should her first name be?

Brooklyn Bridge Images wrote:
Both those case are about nudity not the type images the OP is talking about...

ei Total Productions wrote:
Show me a case where a female photographer took a shot of a 16 year old in a bikini top and jeans, in a totally non-sexual pose and then was arrested for indecency.

Linux99 wrote:
Do you want it on a tuesday or a thrusday? and what should her first name be?

Sorry, I misread your post.  It wasn't completely clear what you were saying.  I thought you were saying that those cases show that the OP should be concerned,  but I think you are saying that the OP has nothing to worry about.  I had to read it a couple of times to see it that way, but I apologize.

I would love for someone who is arguing that a non-sexual bikini shot could be deemed obscene to show me a case that found that.

studio36uk wrote:
Well I take my cue from a case a while back of a NE of England university teacher, and apparently well known local arts photographer, who shot two young girls topless [and only that] as mythical fairies with the full consent of the mother, who was present throughout.

He was arrested, charged and given the difficult choice of pleading guilty to a magistrate sitting alone and without a jury, and thus subject to not more than 6 months in prison, which is the sentencing limit imposed on magistrates, or asking, by a plea of not guilty at the magistrate level, for a jury tiral and risking a sentence of 10 years.

He plead out to the magistrate.

Studio36

Is this what you were referring to?
http://www.dailymail.co.uk/news/article … ng-10.html

If so you got MANY details wrong in your re-telling, which doesn't help with the fear mongering mentality one bit.

ei Total Productions wrote:
Sorry, I misread your post.  It wasn't completely clear what you were saying.  I thought you were saying that those cases show that the OP should be concerned,  but I think you are saying that the OP has nothing to worry about.  I had to read it a couple of times to see it that way, but I apologize.

I would love for someone who is arguing that a non-sexual bikini shot could be deemed obscene to show me a case that found that.

Non sexualised in bikini (or even nude) = totally OK
Sexualised in any sort of outfit (even a burka) = not OK

British police = mostly stupid, reactionary, and likely to get confused, so may mistake one for the other and lead the photographer into a world of pain, from which they would almost certainly be found not guilty but at what cost to them?

My advice is to avoid possibility of police stupidity by only shooting over 18. But OP free to do whatever they think safe. Or, from my perspective, potentially take one for the team and help draw the boundary lines - at the risk of being in a cell with Ben Dover who wants to make a special friend.

Jake Garn wrote:
Is this what you were referring to?
http://www.dailymail.co.uk/news/article … ng-10.html

If so you got MANY details wrong in your re-telling, which doesn't help with the fear mongering mentality one bit.

I'll leave it to you to split hairs on what I got wrong, but I know the background of that case a lot better that a 500 word piece in a daily newspaper.

But yes that is the one.

Studio36

ei Total Productions wrote:
Show me a case where a female photographer took a shot of a 16 year old in a bikini top and jeans, in a totally non-sexual pose and then was arrested for indecency.

That is an issue of fact subject to interpretation by the courts [and the jury]

Studio36

ei Total Productions wrote:
I would love for someone who is arguing that a non-sexual bikini shot could be deemed obscene to show me a case that found that.

Do not mix the concept of indecency and that of obscenity - at least in the UK context they are very, very far apart in meaning.

Studio36

studio36uk wrote:
I'll leave it to you to split hairs on what I got wrong, but I know the background of that case a lot better that a 500 word piece in a daily newspaper.

But yes that is the one.

Studio36

Split hairs?  You got almost nothing right!  You said he was a university professor, he was a tutor, you said he got jail time, he got community service... I could go on but seriously you shouldn't propagate ridiculous fear-mongering.

Linux99 wrote:

With respect both of these cases are about the police being idiots about intrpretation of the obscenity laws in the UK. Exactly what should be worrying th OP.

I do agree the public and police can be insane when it comes to the kidde porn issue

Paul Brecht wrote:

I thought the US was supposed to be the oppressed state...

Look @ the OP's portfolio & list of types of images she thinks are what she wants to do:

https://www.modelmayhem.com/list/307393

I think it's apparent what she likes to do & how she'd approach the shoot...

Paul

That's a "gorgeous" list, not a wish list.

studio36uk wrote:
You are misreading what I just posted. THAT is NOT the underlying statute but the antecedents to 1): a charging decision; and 2): a sentencing decision.

I read exactly waht you posted and I am sorry.  My view hasn't changed.  I see your arguments as fear mongering and nothing more.  They are paucet legal theories.

Jake Garn wrote:

studio36uk wrote:
I'll leave it to you to split hairs on what I got wrong, but I know the background of that case a lot better that a 500 word piece in a daily newspaper.

But yes that is the one.

Studio36

Split hairs?  You got almost nothing right!  You said he was a university professor, he was a tutor, you said he got jail time, he got community service... I could go on but seriously you shouldn't propagate ridiculous fear-mongering.

If you go back and read my post again you will see that I described him as a "university teacher" and he does/did work for Sheffield University. So once again how was that wrong?

He pled guilty = a conviction on his record. As to what he actually got from the court that makes no difference to what kind of maximum sentence he could have gotten - which is exactly as I described it - on summary conviction [in a magistrate's court] up to 6 months; on indictment and trial in the Crown Court up to 10 years. That originates directly from the sentences mandated in the Protection of Children Act 1978 (s:6):

6.
Punishments.
— (1) Offences under this Act shall be punishable either on conviction on indictment or on summary conviction.
(2) A person convicted on indictment of any offence under this Act shall be liable to imprisonment for a term of not more than ten years, or to a fine or to both.

(3) A person convicted summarily of any offence under this Act shall be liable—
(a)to imprisonment for a term not exceeding six months; or
(b)to a fine not exceeding the prescribed sum for the purposes of [F19 section 32 of the Magistrates’ Courts Act 1980](punishment on summary conviction of offences triable either way: £1,000 or other sum substituted by order under that Act), or to both.

Studio36

studio36uk wrote:
I'll leave it to you to split hairs on what I got wrong, but I know the background of that case a lot better that a 500 word piece in a daily newspaper.

But yes that is the one.

Studio36

Jake Garn wrote:
Split hairs?  You got almost nothing right!  You said he was a university professor, he was a tutor, you said he got jail time, he got community service... I could go on but seriously you shouldn't propagate ridiculous fear-mongering.

studio36uk wrote:
If you go back and read my post again you will see that I described him as a "university teacher" and he does/did work for Sheffield University. So once again how was that wrong?

As to what he actually got from the court that makes no difference to what kind of maximum sentence he could have gotten - which is exactly as I described it - on summary conviction up to 6 months; on indictment and trial in the Crown Court up to 10 years. That originates directly from the sentences mandated in the Protection of Children Act 1978 (s:6):

6.
Punishments.
— (1) Offences under this Act shall be punishable either on conviction on indictment or on summary conviction.
(2) A person convicted on indictment of any offence under this Act shall be liable to imprisonment for a term of not more than ten years, or to a fine or to both.

(3) A person convicted summarily of any offence under this Act shall be liable—
(a)to imprisonment for a term not exceeding six months; or
(b)to a fine not exceeding the prescribed sum for the purposes of [F19 section 32 of the Magistrates’ Courts Act 1980](punishment on summary conviction of offences triable either way: £1,000 or other sum substituted by order under that Act), or to both.

studio36uk wrote:
Studio36

This looks to be a wobbler to me where they can prosecute at either of two levels.  It simply appears to me that it can be litigated in either the Magistrate's court or an indictment can be issued.  Can you show me in the code where pleading "no guilty" before a magistrate results in an indictment being issued?

http://en.wikipedia.org/wiki/Summary_conviction

http://en.wikipedia.org/wiki/Indictment_(law)

To me it looks that it gives the prosecutors the discretion to treat the case as a major or minor offense.  In your case, it was a minor offense.

EDIT:  I have done more research and I am now clear on how it works.  I thiink you need to do some research since I am certain that you have it wrong.

Jake Garn wrote:
I ask this in all seriousness.  How do you find the courage to leave your house with all the scariness in the world?

By not going out of my way to stick my head in a noose shooting glamour images of 16y/o girls.

Studio36

studio36uk wrote:

By not going out of my way to stick my head in a noose shooting glamour images of 16y/o girls.

Studio36

I don't even want to tell you about lighting strikes.

Jake Garn wrote:
I don't even want to tell you about lighting strikes.

If the British Police ran lightening strikes we'd all be fuc.. in deep deep trouble.

Linux99 wrote:

If the British Police ran lightening strikes we'd all be fuc.. in deep deep trouble.

Haha!  Touche!  :-)

ei Total Productions wrote:
This looks to be a wobbler to me where they can prosecute at either of two levels.  It simply appears to me that it can be litigated in either the Magistrate's court or an indictment can be issued.  Can you show me in the code where pleading "no guilty" before a magistrate results in an indictment being issued?

http://en.wikipedia.org/wiki/Summary_conviction

http://en.wikipedia.org/wiki/Indictment_(law)

I would have to go back to the Magistrate's Bench Book and find it. However, a Magistrate on a not guilty plea can refer the case to the Crown Court. The plea intention, however, would generally be known to the CPS in advance and they could make the decision on which court will hear it even before the papers are filed.

A Magistrate's court could also hear the case and only then, on a finding of guilty, refer it to the Crown Court for sentencing where the Crown court has significantly greater sentencing powers. This, though it can happen it is relatively rare to actually happen in practice.

Keep in mind, also, that our Magistrates are lay Justices of the Peace and not lawyers. We also do not have any officially sanctioned means of plea barganing... at any level,... though there is horse trading that goes on behind the scenes the Magistrates or Judges will generally not be informed of it.

Yes, this is a so-called "either / or" charge.

In this particular case, it appears he plead the way he did to keep it in the Magistrate's court specifically for sentencing, where the maximum sentence would have be laughably lower than the potential maximum sentence in the upper court. And I am sure that his lawyer would have been very prepared to argue against referral for sentencing. It became a risk management strategy based on whatever legal advice he was getting. The same one played out every day in a whole range of "either / or" cases.

The UK, unlike the US, does not assign charges as misdemeanour's and felony's. So we wind up with these "either / or" kinds of offences and a somewhat hodge-podge of sentencing options.

Studio36

Jake Garn wrote:
Studio36 -
I ask this in all seriousness.  How do you find the courage to leave your house with all the scariness in the world?

I guess the serious answer would be, "By being well informed."

It sounds like a cliché, but ignorance is definitely not an excuse for breaking the law.

I am not going to discourage someone from being a trailblazer. 

If Stacey (the OP) wants to try to set some legal precedents then go ahead.

If she simply wants to help define "indecent" once and for all, then I applaud her.

I strongly encourage "trial by fire" when it comes to certain things in life.

Photography is one of them.  Define your own style and go with it.

The Law is not one of them. Unless you have deep pockets, or friends in high places, breaking the law can put you in lonely places.

ei Total Productions wrote:
This looks to be a wobbler to me where they can prosecute at either of two levels.  It simply appears to me that it can be litigated in either the Magistrate's court or an indictment can be issued.  Can you show me in the code where pleading "no guilty" before a magistrate results in an indictment being issued?

http://en.wikipedia.org/wiki/Summary_conviction

http://en.wikipedia.org/wiki/Indictment_(law)

studio36uk wrote:
I would have to go back to the Magistrate's Bench Book and find it. However, a Magistrate on a not guilty plea can refer the case to the Crown Court. The plea intention, however, would generally be known to the CPS in advance and they could make the decision on which court will hear it even before the papers are filed.

You are going to have to show me where it says that.  I read the statutes and quite a bit of informaiton online, as well as the latest revisions to the indictment statute.  From what I read, it is either charged as a misdimeanor or an indictable offense.  I saw no provisions to indict anyone after summary conviction and the penalties are limited to not more than six months in jail. 

If you can show me something different, I would love to see it, but I am starting to get concerned about your reading of the law.

iMn Photography wrote:
I guess the serious answer would be, "By being well informed."

All of life is an exercise in risk management. Risk taking is a whole other thing.  LOL

Studio36

studio36uk wrote:

By not going out of my way to stick my head in a noose shooting glamour images of 16y/o girls.

Studio36

+1

ei Total Productions wrote:
You are going to have to show me where it says that.  I read the statutes and quite a bit of informaiton online, as well as the latest revisions to the indictment statute.  From what I read, it is either charged as a misdimeanor or an indictable offense.  I saw no provisions to indict anyone after summary conviction and the penalties are limited to not more than six months in jail. 

If you can show me something different, I would love to see it, but I am starting to get concerned about your reading of the law.

No, I intend that you consider that a not guilty plea at the Magistrates level and where the hearing [as trial] is then stopped after the charges are read out and a not guilty pleading is revealed as the intended plea or entered, which it can be, is not a conviction at that level. The point is that before the gavel falls, in some circumstances, it can be moved to the upper court at the direction of the Magistrate's court.

Magistrates' Courts Act 1980
Part I Criminal Jurisdiction and Procedure
Offences triable on indictment or summarily

[my note:
QUALIFIER: on a plea of, or stated intention of a plea of, not guilty - - - ]

[section title] Procedure where trial on indictment appears more suitable.

21. If, where the court has considered as required by section l9(1) above, it apears to the court that the offence is more suitable for trial on indictment, the court shall tell the accused that the court has decided that it is more suitable for him to be tried for the offence by a jury, and shall proceed to inquire into the information as examining justices.

After conviction at the Magistrate's level it can still be referred to the Crown Court but only, at that point, for sentencing and, in a case like that, the Crown Court can sentence anywhere within their powers.

Powers of Criminal Courts (Sentencing) Act 2000
[in part]

Part I  POWERS EXERCISABLE BEFORE SENTENCE

  2. Committal to Crown Court for sentence
            3. Committal for sentence on summary trial of offence triable either way.
            4. Committal for sentence on indication of guilty plea to offence triable either way.
            5. Power of Crown Court on committal for sentence under sections 3 and 4.
            6. Committal for sentence in certain cases where offender committed in respect of another offence.
            7. Power of Crown Court on committal for sentence under section 6.

Any and all of these possible outcomes hinges on the fact that the offence is triable either way.

Studio36

studio36uk wrote:
No, I intend that you consider that a not guilty plea at the Magistrates level and where the hearing [as trial] is then stopped after the charges are read out and a not guilty pleading is revealed as the intended plea or entered, which it can be, is not a conviction at that level. The point is that before the gavel falls, in some circumstances, it can be moved to the upper court at the direction of the Magistrate's court.

I think you need to read the act more thoroughly.  Tehre are all kinds of caveats and qualifiers, so that when read in total, I think you are missing some things there.

ei Total Productions wrote:
I think you need to read the act more thoroughly.  Tehre are all kinds of caveats and qualifiers, so that when read in total, I think you are missing some things there.

None of which fatally impact the point being made here. That the Magistrate's court, in the face of a not guilty plea, or on the defendant's election that the case not be heard at the Magistrate's court level, can refuse/decline to hear the case and on their own motion move it to the Crown Court.

Interestingly, all "either / or" cases start in a Magistrate's court in any case.

Studio36

ei Total Productions wrote:
I think you need to read the act more thoroughly.  Tehre are all kinds of caveats and qualifiers, so that when read in total, I think you are missing some things there.

studio36uk wrote:
None of which fatally impact the point being made here. That the Magistrate's court, on their own motion and in the face of a not guilty plea, or on the defendant's election that the case not be heard at the Magistrate's court level, can refuse/decline to hear the case and move it to the Crown Court.  I won't be posting anymore.

Interestingly, all "either / or" cases start in a Magistrate's court in any case.

Studio36

I don't have time to discuss this with you anymore.  I will only say that the circumstances in which that can happen are far more limited than you are suggesting.

ei Total Productions wrote:
I see your arguments as fear mongering and nothing more.

If YOU lived in the UK then maybe your OPINION would carry some weight in this.

However, speaking as one of those who DO live here, I would prefer to appear to err on the side of fearmongering than to end up in jail.

The problem here in a nutshell is that the whole question of whether an image breaks the law or not rests on the definition of the word "indecent" - and there is NO legally accepted definition of that word. It's up to the individual judge or jury members on the day of the trial to decide if just one image out of all those in question is "indecent".

Thus, whether you go to jail or not is entirely dependent on the mindset of that judge or those jury members. You could take what 100% of MM members would feel to be a perfectly innocent clothed image of an underage model and yet, if your judge or sufficient of your jury members happened to feel it was "indecent", then you could be going to jail. Period.

That's not fearmongering, that's FACT. How you would want to deal with that as a photographer if you were based in the UK is up to you. Personally I prefer to avoid the issue altogether by shooting only 18+ models. It's not as if there is a lack of good models over 18 after all


Just my $0.02

Ciao
Stefano

www.stefanobrunesci.com

Martin Philippo wrote:
Talking about the OP:
in this thread the OP is (as usual) accused, convicted and executed before she could explain herself. Has anyone asked her what the pictures exactly  would be like?
I hate it when people jump up as if they were stung by a bee when the words under age model appear in a topic. In many peoples mind this seems to mean that any photographer intends to do all sort indecent things. What is on your mind?

No-one from the UK has convicted anyone. They have all given the simple advice that it is not worth the risk, that's all.

Hugh Alison wrote:
with the exception of Studio36UK' advice - he's lived here many years and has actual experience of the UK law in this area.

And NOT as a defendant, I can joyfully point out.  LOL

The main point of the technical exercise above, and it got fairly complex in discussion, probably putting most readers to sleep, was to demonstrate why our university lecturer from Sheffield University, who had a photo business on the side, would plead guilty to an offence here, and choose to do so in a Magistrate's court, that would likely never even see a courtroom of any kind in the US.

In discussing how such a case might be handled I never said of the options THIS IS WHAT WILL HAPPEN; only THIS IS WHAT COULD HAPPEN; and upon what basis one might find themselves in court on a similar charge having to make a similar decision to our university lecturer about their plea.

I also pointed out in one post, above, exactly what you have just said again, Hugh. That you could be convicted at trial in one court, in one part of the country, whilst exactly the same image laid at trial in front of another court, in another part of the country, could result, at the end, in a not guilty verdict. Or potentially even more bizarre, the same court but with two different juries on two different days. The very same image in two different courts, or put to two different juries, ending in two completely opposite results.

You can and do get some really perverse cases crop up here from time to time when it comes to images and children. IIRC there was a girl who submitted some Xeroxed arty style images of children as part of a college assignment. I might have been, but I don't recall if it was, some David Hamilton work. Bang! Someone who saw them attached to her assignment submission took great offence to them as being indecent and verging on child porn, and called in the police. Oh, the humanity! Can't have this kiddy porn smut circulating. She must be a prevert [sic], a paedophile, [or maybe she's even a paediatrician - the Brits will know what that refers to]. She was very close to being charged - UNTIL - it was discovered that she had copied them from a book she checked out from the same college's library where the book including the images she copied had been peacefully resting on the shelves for some years before, and available for anyone with a library card to check out. DUH!

Or, and this is a real hoot  - - - when it was discovered at some time after the Protection of Children Act came into force that even the police were not exempted from a possession charge if they obtained and held the images as evidence. That had be be corrected by formally passing an amendment to the statute.

Shitty, sloppy, and ill thought out, lawmaking at it's very worst!

Studio36