(1)This section applies where, in proceedings for an offence under section 1(1)(a) of taking or making an indecent photograph [F2or pseudo-photograph] of a child, or for an offence under section 1(1)(b) or (c) relating to an indecent photograph [F2or pseudo-photograph] of a child, the defendant proves that the photograph [F2or pseudo-photograph] was of the child aged 16 or over, and that at the time of the offence charged the child and he—
(a)were married [F3or civil partners of each other], or
(b)lived together as partners in an enduring family relationship.
(2)Subsections (5) and (6) also apply where, in proceedings for an offence under section 1(1)(b) or (c) relating to an indecent photograph [F2or pseudo-photograph] of a child, the defendant proves that the photograph [F2or pseudo-photograph] was of the child aged 16 or over, and that at the time when he obtained it the child and he—
(a)were married [F4or civil partners of each other], or
(b)lived together as partners in an enduring family relationship.
(3)This section applies whether the photograph [F2or pseudo-photograph] showed the child alone or with the defendant, but not if it showed any other person.
(4)In the case of an offence under section 1(1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph [F2or pseudo-photograph] being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.
(5)In the case of an offence under section 1(1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.
(6)In the case of an offence under section 1(1)(c), if sufficient evidence is adduced to raise an issue both—
(a)as to whether the child consented to the photograph [F2or pseudo-photograph] being in the defendant’s possession, or as to whether the defendant reasonably believed that the child so consented, and
(b)as to whether the defendant had the photograph [F2or pseudo-photograph] in his possession with a view to its being distributed or shown to anyone other than the child,
the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph [F2or pseudo-photograph] in his possession with a view to its being distributed or shown to a person other than the child.]
Textual Amendments
F1S. 1A inserted (1.5.2004) by Sexual Offences Act 2003 (c. 42), ss. 45(3), 141; S.I. 2004/874, art. 2
F2Words in s. 1A inserted (6.4.2010) by Coroners and Justice Act 2009 (c. 25), ss. 69(1), 182(5) (with s. 180, Sch. 22); S.I. 2010/816, art. 2, Sch. para. 2
F3Words in s. 1A(1)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 60; S.I. 2005/3175, art. 2(2)
F4Words in s. 1A(2)(a) inserted (5.12.2005) by Civil Partnership Act 2004 (c. 33), s. 263(10)(b), Sch. 27 para. 60; S.I. 2005/3175, art. 2(2)