[2025] UKUT 119 (AAC)

We find that there was a minor error in DBS’s conclusion in this respect. On our findings of fact, the appellant attempted to pay for indecent images of people who look like children, albeit that he believed the disclaimer that they were over 18 so that it would be lawful.

We do not consider that this error makes any material difference either on its own or when taken with the other errors we deal with below. The concern of the barring scheme is the protection of children and vulnerable adults. It makes very little difference to the risk that the appellant poses to children that he was attempting to pay for images that he believed looked like children albeit that he believed they were in fact over 18. That is so both in terms of the general risks posed to children by child pornography and the specific risk posed by the appellant.

We accept the submission by counsel for DBS that the risk posed to children by the child pornography industry generally is fuelled by people who wish to watch material that looks like that, whether or not it involves real children. That is why section 64 of the Coroners and Justice Act 2009 defines images of children for the purposes of the sections under which the appellant was convicted as including imaginary images, and why paragraphs 4(3) and 4(4) of paragraph 3 of the SVGA 2006 contain similar provision. The progression of the appellant’s own internet activities shows how easy it is for one thing to lead to another. We accept DBS’s submission that willingness to watch pornography involving images that look like children is capable of fuelling that industry and indirectly increasing the risk to real children from the actions of others.

So far as the appellant himself is concerned, we cannot see that it makes any material difference to the risk posed by him personally that he believed he was seeking to pay for images of over 18s. DBS concluded that he had a sexual interest in children and the material before us leads us to conclude that DBS was not wrong about that. We say that because what is meant by ‘a sexual interest in children’ is, consistent with the way the law approaches indecent imagery, a sexual interest in people who look like children. It is an interest that the appellant has sought to pursue while remaining on the correct side of the law (albeit that he misunderstood the law and naively considered the disclaimers were keeping him on the right side of the law). It is also an interest that had only just begun to lead him to cross the boundary between imaginary and real children, and he was disgusted at himself when he crossed that boundary. Nonetheless, the sexual interest is there and that presents a risk that circumstances might arise in which that risk would manifest with a real child. The assessment of that risk is primarily a matter for DBS, but in this case, we share DBS’s view that the areas of factual dispute raised on this appeal make no significant difference to the assessment of risk. We find that the factual error was not therefore a material mistake.