Commentary on Sections Offences involving intent to cause distress etc Section 33: Disclosing private sexual photographs and films with intent to cause distress
332.Section 33 creates a new offence of disclosing private sexual photographs and films with intent to cause distress.
333.Subsection (1) provides that this offence is committed if the disclosure was made without the consent of an individual (“the victim”) who appears in the photograph or film, and with the intention of causing that victim distress. Subsection (8) makes it clear that the defendant is not to be taken to have the required intention merely because the distress naturally followed from the disclosure.
334.Subsection (1) is subject to subsection (2) which provides that the offence is not committed if the photograph or film was only disclosed to the victim.
335.Subsections (3), (4) and (5) set out the defences which apply to the offence. The burden of proving, under subsection (3), a reasonable belief that the disclosure was necessary to prevent, detect or investigate crime is on the defendant.
336.However where the defendant provides sufficient evidence to raise an issue in respect to the matters set out in subsections (4) and (5) it will be for the prosecution to disprove those matters beyond all reasonable doubt in order to secure a conviction.
337.The defence in subsection (4) applies to those directly engaged in journalism and to their sources because the defence applies both to disclosure in the course of publication of journalistic material and to disclosure with a view to such publication. In either case the defendant needs to show that he or she reasonably believed that there was, in all the circumstances, a public interest in the publication in question. Subsection (7)(b) defines “publication” as disclosure to the public at large or to a section of the public.
338.The defence in subsection (5) applies where the defendant could show that he or she reasonably believed that the photograph or film in question had previously been disclosed for reward; for example the defendant might have a reasonable belief that the photograph or film had previously been published on a commercial basis because he or she had seen it in a magazine. The previous disclosure for reward could have been made either by the victim of the offence or by another person. In addition the defendant needs to show that he or she had no reason to believe that this previous disclosure for reward was made without the consent of the victim of the offence. For example, the defence would fail if the prosecution proved that the victim had told the defendant that they did not consent to the previous disclosure for reward.
339.Subsection (7)(a) clarifies that, for the purposes of the offence, “consent” to the disclosure of the photograph or film (whether on the occasion to which the offence relates or on a previous occasion for commercial reward) could be general consent covering the disclosure of the material or specific consent to the particular disclosure in question.
340.Subsection (9) provides that the offence of disclosing a private sexual photograph or film with intent to cause distress is triable either way and can therefore be tried in either a magistrates’ court or the Crown Court. On conviction of indictment the maximum term of imprisonment is 2 years. The maximum term of imprisonment on summary conviction is 6 months until section 154(1) of the Criminal Justice Act 2003 comes into force, at which point it will be 12 months (subsection (11)). Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will remove the limit on fines that can be imposed in the magistrates’ court. However, until it comes into force, any fine imposed on summary conviction of the new offence must not exceed the statutory maximum (subsection (12)).