The facts of the case of Huw Edwards, the disgraced BBC broadcaster, are not in dispute. At his sentencing hearing at a London Magistrate’s Court on Monday, it was revealed that he had been offered, and gladly accepted, images of underaged boys either in sexual poses, or performing sexual acts. There is no doubt that Edwards was aware of what he was receiving – the court heard that one of the sets of images was labelled “adolesc”, which somebody of Edward’s literacy could not mistake for anything other than a contraction of the word “adolescent”.
One of the videos, per the Daily Telegraph, was labelled “Boys Town Adolescents Presents 13yo Josh”. On February 10th, 2021, Edwards received a video that showed two young boys aged between seven and nine engaging in sexual acts.
A week later, Edwards told his interlocutor “Don’t send underage”.
That, it must be said, is the full extent of his mitigation: “Don’t send underage”.
There was no apparent concern here about criminality other than the fact that the videos were either too young to excite Edwards, or that he feared criminal consequences for himself. We might expect somebody who receives images of child abuse unsolicited to report those images to the Police himself. Edwards did not do so. Yet he walked from court a free man.
In some senses, Edwards is being treated more harshly in the media on account of his public profile. He is far from alone in consuming the material he consumed, and his suspended sentence is par for the course for such activity in both jurisdictions on these islands. In July of this year Piotr Grycuk of Raglan Road, Ballsbridge, received a three-year suspended sentence from Judge Martin Nolan after being convicted of possession of 10,347 illegal images of child pornography. “It would be unjust to imprison him”, was the verdict of Judge Martin Nolan on that occasion.
What of Liam Kelly, of Clonadrum, Mullagh, in West Clare? Judge Francis Comerford handed Kelly a suspended sentence of sixteen months in July of this year after Kelly was found in possession of a video of a “nine to ten year old girl removing her underwear in a provocative manner”. Mr. Kelly was not actually detected by the Irish police, but by the Spanish, after a sting operation in which he had told an online contact that he intended to “try” a 10 year old girl while on holiday in that country.
In November of 2023, Eoin Prizeman from Killinarden in Tallaght was before the courts. Mr. Prizeman had come to Garda attention because he (presumably accidentally) uploaded one of his videos to facebook. The video in question depicted the anal rape of a child aged nine or ten by an adult male. When Mr. Prizeman’s hard drives were checked, it turned out that he had 276 such videos, all in the most serious category. Judge Orla Crowe described this as “self-evidentially a serious crime” and decided that it warranted a suspended sentence of 12 months. Mr. Prizeman, like everyone else in this article, walked from court a free man, albeit one who is thankfully unlikely to have strong employment opportunities in childcare.
In May of this year, a former Department of Justice official, Niall Colgan of Muckross Park, Perrystown, Dublin 12, was before the courts. As in all these cases, the material in his possession needs to be described, lest anyone think that the prosecutors are being over-zealous. In Colgan’s case, one sample video in his possession featured a 13 year old girl, masturbating with what appeared to be curling tongs. A second video depicted a boy under the age of ten engaging in sexual acts with a female. Mr. Colgan drew Judge Martin Nolan, who took all these matters into account and imposed a one-year fully suspended sentence.
I could go on, and on, and on, and on. Suspended sentences, as we all know, are the norm these days for possessing material such as this.
There is a tendency – an understandable one – to place the blame for these sentences at the feet of the judges who impose them. Yet in none of these cases (at least the Irish ones) were the sentencing guidelines breached.
The Irish sentencing guidelines for Child Abuse Material arise from a 2006 case before the Court of Criminal Appeal called DPP versus Loving, which can be found here.
Carl Loving, an American immigrant and convicted conman, had been found with 783 images of child pornography. He had also conned several victims out of money; failed to appear in court; and generally behaved as a disreputable character. As the appeal verdict notes, “the trial judge expressed regret that the maximum sentence for the (child pornography) offence was five years imprisonment”, and imposed the maximum. In other words, the Judge had wished to impose a longer sentence than five years, but ran into a hard limit imposed in legislation. Nevertheless, Loving appealed.
The court of criminal appeal, in a decision by now-retired Judge Nial Fennelly, sided with Loving, and reduced his sentence to six months imprisonment. The court found that Judges have a duty to take mitigating circumstances into account, declared that the offences were on the lower level of seriousness, and reduced Loving’s sentence on the headline count to six months imprisonment, which he had by that time already served. Loving walked free from jail shortly thereafter.
The key paragraph in that decision reads as follows:
“Where the offence is at the lower level of seriousness, there is no suggestion of sharing or distributing images, the accused is co-operative and it is a first offence, the option of a suspended sentence should at least be considered”.
Those are the words of Mr. Justice Fennelly, whom it should be recalled was a member of the Supreme Court until his retirement in 2014. His words have governed the sentencing in Ireland for child pornography ever since.
Of course, defence lawyers know this very well – which is why, in many of these cases, the defendant’s case is that the offending is at the lower level, there is no suggestion of sharing images, the accused is co-operative, and it is their first offence. Judges, faced with those facts, well argued, are left with very little option but to impose a suspended sentence, because they know that those words from DPP versus Loving constitute legal precedent, and they are bound to abide by it.
The people who do have options here are the politicians, who have the option to change the law in regard to the possession of child abuse imagery, including by imposing via legislative change a mandatory minimum sentence encompassing jail time. It is the politicians, not Judge Martin Nolan, who have failed to do so. The same is true, broadly speaking, in the UK.
That this has not happened is a matter of political priority, not, necessarily, judicial fecklessness. Though speaking personally, were I a judge, I would be inclined to impose a maximum sentence, every time, and make the court of criminal appeal overturn me, every time. It might not make a Judge popular with his legal colleagues, but perhaps it might provoke some wider discussion about why Irish paedophiles are walking free on foot of a very questionable 2006 decision.