Is it possible to look at illegal images legally?

Question

There was a case in the UK a few years ago where Chris Langham, an actor, was arrested for looking at indecent images of minors. The actor's defense was that he was about to play a pedophile in a TV show and this was research. Apparently, the judge even stated that:

"Pedophilia is not an issue in this case" and [Langham] "is not a sexual predator".

Let us assume, for the sake of this question, that the actor's defense was indeed true and the only reason he wanted access to indecent images of minors was for research. Is it possible for someone to access and view such images, or any other illegal content, in a jurisdiction in which such access is illegal and not risk legal consequences? Consider, for example, a legitimate academic study on the prevalence and spread of child abuse in society. Or, since in the UK possession of terrorist propaganda is also illegal, a study of terrorist groups and their methods of recruitment

Since this is obviously a sensitive subject, I want to clarify that this question is emphatically not asking for any tips on accessing such content. If the question is impossible to answer without giving information that would make it easier for someone to find or view such images, then please close it!

I am simply wondering if it could be done legally if someone needed to see the images for actual research. Perhaps by contacting the police in advance? Or even viewing them under police supervision?

Answer 1

As pointed out in the comments and in cpast’s answer, it is a defence to a charge against s 1(1)(b) or (c) of the Protection of Children Act 1978 if the defendant proves that they had “a legitimate reason” for distributing, showing or possessing the material.

As to whether “research” is “a legitimate reason,” the Crown Prosecution Service’s guidance for this offence refers to the following passage from Atkins v DPP; Goodland v DPP [2000] EWHC Admin 302:

The question of what constitutes “a legitimate reason” … is a pure question of fact (for the Magistrate or jury) in each case. The central question where the defence is legitimate research will be whether the defendant is essentially a person of unhealthy interests in possession of indecent photographs in the pretence of undertaking research, or by contrast a genuine researcher with no alternative but to have this sort of unpleasant material in his possession … Courts are plainly entitled to bring a measure of scepticism to bear upon such an enquiry: they should not too readily conclude that the defence has been made out.

Atkins also clarifies that the principle in R v Bowden [1999] EWCA Crim 2270 – that downloading images amounts to “making” rather than “possessing” them, and thus the “legitimate reason” defence is not available – does not apply to unintentional downloads such as those stored in a browser cache:

But what of the other ten counts of "making", those relating to the material unknowingly stored in, and recoverable from, the caches? … In short, it is my conclusion that whilst "making" includes intentional copying (Bowden), it does not include unintentional copying.

Answer 2

The relevant law in England and Wales is the Protection of Children Act 1978. Under section 1 of the Act, it’s a defense to distributing, showing, or possessing indecent images of children if you had a “legitimate reason” to distribute, show, or possess them. It’s also a defense if you had not seen the images, didn’t know they were indecent, and didn’t have any cause to suspect they were indecent.

However, the 1999 case of R v. Bowden held that downloading a digital copy of an image counts as “making” an image. This is not subject to the “legitimate reason” defense by statute (although I don’t know if it’d count as “making” if you have no reason to know the contents, like if a computer repair shop backs up a customer’s hard drive without looking at what’s on the drive). However, it is explicitly still subject to defenses in sections 1A and 1B of the Act.

1A covers spouses and partners. If you are the spouse or partner of a child between 16 and 18, then with their consent you can legally make indecent images of them (although this doesn’t apply if anyone but the two of you is in the image). You can also possess those images with their consent and give them a copy.

Section 1B covers criminal proceedings, investigations, etc., and was added after R v. Bowden. Because copying a digital image counts as “making” an image, it would generally be illegal for people to work with digital copies of indecent images even if done for a good reason. To avoid that, Parliament made an exception for making an indecent image when necessary to prevent, detect, or investigate crimes, as well as for criminal proceedings anywhere in the world. Parliament also exempted the UK’s intelligence agencies (MI5, MI6, and GCHQ) when carrying out their duties. These are specific statutory exemptions, so they can’t really be generalized to “if you have a legitimate reason.”

Answer 3

In a comment, you clarify your question thus:

I am wondering if and how it would be possible for someone who did have a legitimate reason to access content that would otherwise be illegal.

In another comment:

say someone has a method that avoids that, and also has a legitimate reason to access illegal material. Does the law you linked to mean that it is at least theoretically possible for that person to legally access it?

Yes, of course. That's what "defence" means in the text of the statute. Someone who is charged only with offending 1(b) or 1(c) cannot be convicted after establishing to the court's satisfaction that the reason behind the alleged violation is legitimate.

For example, a "method that avoids that" could be having the photographs only in printed form.