Indecent images overview

What should I do if I have been accused of a child pornography offence?

Simply get specialist legal advice as soon as possible. Don’t wait to speak to a duty solicitor, don’t expect the Police to help you and don’t trust your future to well-meaning advisors. Getting expert legal advice at the earliest stage, particularly if you have accidentally viewed child pornography, can make a significant difference to the outcome of your case. Contact me now.

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What should you do if you are accused of possessing, making or distributing indecent images?

If the Police have already taken your devices following a search warrant issued under the Protection of Children Act or are accused of possessing indecent images, it is essential to seek expert legal advice as soon as possible, waiting for the police to contact you in the future once they have downloaded and assessed all your devices is too late, by that point you will just be invited to the police station for an interview under caution, following which a criminal charge will be considered. Act early and Contact me now to get specialist legal advice, I can begin gathering all the necessary evidence to defend your case and expertly guide you through the whole process, my aim will be to bring the case to a close as soon as possible and ideally without a Court appearance.

 

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In the UK how is child pornography defined?

UK law defines child pornography as indecent images of children under the age of 18. Such images do not have to show the subject being sexually assaulted or abused. If a child is naked and the image is primarily concentrating on their genitals or involves posing, this can be classified as indecent.

 

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What makes an image indecent?

Indecency is an issue for the Court to decide in accordance with established standards of propriety. It is an objective test for the jury and the motive of the picture taker or person viewing is irrelevant. Indecent images are prohibited by law. For an image to be prohibited, three elements would normally be present:

 

1. The image will be pornographic or sexually provocative

2. The image will be grossly offensive or obscene

3. The image may focus solely or primarily on the subject’s genitals or anal region

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What are the most serious types of indecent image according to UK law?

The most serious indecent images of children will routinely include the following acts:

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1. A penetrative act of a child’s anus or vagina with either a body part or other object.

2. The performance of a sexual act, intercourse or oral, with or in the presence of a child.

3. A sexual act such as masturbation involving a child or in the presence of a child.

4. A penetrative act performed in the presence of a child.

5. An act of penetrative or oral intercourse, performed by a child on an animal.

6. An act of penetrative or oral intercourse, performed on an animal in the presence of a child.

 

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What are the key laws regarding indecent images?

The law categorises indecent images of children in four general ways:

 

1. Possession of indecent images, this is the physical or digital possession of an indecent image which is prohibited by law.

 

2. Making of indecent images is dealt with very similarly to possession cases and involves the viewing of an image which in turn results in the image being downloaded to the device on which it is viewed. Making is often misunderstood, it doesn’t actually mean a person made or took the original image. The making of indecent images can occur in many ways, often when someone simply downloads them from the internet. The act of downloading “makes” the indecent image on the device upon which the image has been downloaded. However, the “making” of the image can also happen automatically, sometimes when a device visits a web page on which indecent images of children are visible. This is a particularly complex area of the law and a comprehensive understanding of the technology behind this is vital to ensure that the right advice and tactical approach is adopted.

 

3. The distribution of indecent images is often where it involves the sending or sharing of a digital file, for example by social media, email, in a chat room or file sharing programme. It must be established that the person intentionally distributed the image and that he did so intending to send an indecent image. For the latter element, the prosecution must show that the sender had knowledge that the image was indecent.

 

4. The production of indecent images is different to the making of indecent images. Production cases would typically involve the actual taking of a photograph or production of a video or film, whereby the accused person may be filming or using the camera to produce indecent material.

 

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How can knowledge that I knew about the indecent image be proven?

One aspect of an indecent image case is for the police or prosecution to prove knowledge of having indecent images on a device such as a computer, laptop, external drive, tablet or phone. There may be occasions when the person arrested or being investigated has ownership of the device on which the indecent images may be found, but they may have no idea the images are there, this can happen for example on a shared computer.

 

However, the fact that you were unaware that you are in possession of indecent images will not automatically mean you are innocent. Conversely, awareness and looking at the images does not necessarily mean you are guilty.

 

Experts forensic evidence can be beneficial to establishing a defence, following examination of electronic devices a defence forensic expert may be able to challenge the prosecution case.

 

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Will I go on the the sex offenders register?

Yes, if you are convicted of an offence regarding indecent images, you will be required by law to sign onto the sex offenders’ register. See my separate section on the sex offenders' register for further information.

 

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How are indecent images categorised or graded under UK law?

Indecent images are graded into three categories, A, B and C.

 

Category A images are the most serious. The punishments for indecent image offences within this category are typically the most severe.

 

Images classed in this category depict gross assault, sadism or bestiality, or obscene images involving penetrative sexual activity. This category also extends to all images that depict a child subjected to pain.

 

Category B images are less serious that category A images but more serious than category C images. Depictions of both non-penetrative sexual assault and explicit sexual activity are both classed within category B.

 

Non-penetrative sexual assault refers to acts such as mutual masturbation. In most cases, this definition involves the presence of an adult. Images involving explicit sexual activity usually depict a child in sexual acts without the presence of an adult. This would include depictions of activities such as masturbation.

 

Category C images are indecent images not classed within category A or B. Category C images depict some sexually suggestive content. Category C images can include everything from commercially published images to family photographs. As some images may not be obviously sexual in nature it is an objective test for the jury to decide if an image is indecent.

 

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Am I going to prison? What sentence will I get?

There are sentencing guidelines for indecent images offences and the sentence will vary depending on:

 

1. The number of images or videos

2. The category of images depicted

3. The type of action taken to either make, possess, distribute or produce the images.

 

When custodial sentences are indicated please be aware that the court has the power to suspend custodial sentences of up to 2 years. Also, you can get a reduction of up to one third on the expected sentence by pleading guilty at the earliest opportunity. 

 

Making or possessing indecent images

• Making or possessing category A images has a starting point of 12 months in custody. 

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• Making or possessing category B images has a starting point of 6 months in custody. 

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• Making or possessing category C images has a starting point of a high level community order. 

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Distributing indecent images

• Distributing category A images has a starting point of 3 years in custody. 

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• Distributing category B images has a starting point of 12 months in custody. 

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• Distributing category C images has a starting point of 13 weeks in custody. 

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Producing indecent images

• Production of category A images has a starting point of 6 years in custody. 

 

• Production of category B images has a starting point of 2 years in custody. 

 

• Production of category C images has a starting point of 18 months in custody. 

 

Some firms will scare you with risks of prison sentences, I do not think that is fair, it also distracts you from focusing on dealing with your case in a proactive and productive fashion. Despite the sentencing guidelines I would advise that for straightforward possession of images an immediate custodial sentence is highly unlikely, the most likely sentence would be a community order or suspended sentence. Unless your case includes the production or distribution of category A images I would suggest that a suspended sentence is achievable with good legal advice and case preparation. 

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Despite the sentencing guidelines please be assured that it is my job to keep you out of prison by persuading the Judge to impose a community order or suspend any prison sentence, it requires thorough case preparation and good advocacy that carefully highlights any offence specific or personal mitigating circumstances. For more specific advice Contact me now.

 

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How can knowledge or intent of viewing indecent images be proven?

To be found guilty of possessing indecent images of children in must be proven that you were aware of the presence of the indecent images, whether in photograph form or digitally on a laptop, tablet, phone or other device. Knowledge can be inferred if there has been relevant web search history activity or other corroborative activity which suggests that the user was aware and did view the material.

 

However, being unaware of the presence of the images, such as if they are stored on a shared computer or downloaded without your knowledge does not mean you will automatically be found innocent, the circumstances of each case are different and will need careful consideration.

 

Experts forensic scientists can be instructed on your behalf to examine any devices which may have indecent material stored on them to assess how the material may have got there. An expert report will be written, and the findings can be used in Court to defend or mitigate your case. Such a report can consider and address various factors including:

 

• If there is a legitimate reason for possessing the indecent images.

• If there is any evidence to suggest that the material was specifically searched for or requested.

• The age of the children depicted in the images.

• The number of images and over what period/ length of time they were viewed/accessed.

 

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What are the defences for child pornography offences?

There are two key defences for indecent image cases:

 

1. Legitimate reason

There must be a valid reason for the defendant to be found in possession of indecent material. This defence is rarely used as it usually applies to person that must access indecent images during the course of their employment.

 

2. Lack of awareness

The defendant must be able to prove they had not seen the images and they had no reason to believe the material was indecent. This defence could be argued if the images were made accidentally or inadvertently, such as via an online pop-up or were downloaded with other images that were entirely legal.

 

In relation to distribution allegations, it is a defence if it can be shown that the indecent image was either not sent or, if it was sent (via social media for example), it is established that the sender was not aware that it was in fact indecent.

 

It is also a defence to show that an image was received in an unsolicited manner and properly deleted without delay. An example is opening an email or message received from a friend and upon seeing it was an indecent image quickly and permanently deleting the image.   

 

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How do the police conduct Indecent image investigations?

There are over 25,000 indecent images offence investigations each year in England and Wales. Often cases are based on evidence sourced from:

 

1. The internet

2. The dark web and peer to peer file sharing

3. Social media applications

4. Cloud based storage

5. Hard drives

6. Hidden computer directories

7. Smartphones and tablets

 

The Police have a database of indecent images, called the Child Abuse Image Database (CAID). Its purpose is to try to ensure a level of consistency regarding how images are graded and to assist in the recovery and retention of such material.

 

During a police investigation, the devices belonging to an accused individual (and often those belonging to their family members) are seized for review. Their contents will be analysed for traces of indecent images and with the recent uptake in remote ‘cloud’ storage, any online accounts are analysed too. Frustratingly these devices can be with the Police for many months while they are analysed.

 

Images that are recovered are compared to those already recovered and contained on the CAID. If the images are not on the CAID, they are graded according to the current guidance.

 

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What are my rights if the Police want to interview me?

A suspect will be interviewed formally by the Police and given an opportunity to give an account, either putting forward a defence or admitting criminal behaviour. This interview is incredibly important, if you find yourself in this situation you must make sure you have a solicitor present.

 

An interview under caution can take place on the day the Police seize devices, or it can take place many months later after all the devices have been analysed. In some cases there will be two interviews, once when devices are sized and again once devices have been analysed. It is not always the case that a suspect will be arrested and taken to the Police station, interviews can be conducted anywhere, even at a home address when devices are seized, but always remember anything said will be recorded and can then be used against you, which is why having a solicitor present is essential.

 

It is vitally important to remember that anyone interviewed under caution, either at a police station or elsewhere, (even at home), is entitled to have a solicitor present to advise them. You have the right to nominate a specific solicitor and the police cannot then interview you before that solicitor attends. You do not have to use a Police arranged duty solicitor. I would strongly advise against using a duty solicitor, you will get a random legal representative from a local law firm, often the person that represents you will not be a solicitor but a police station advisor, and sadly many solicitors and advisors from general criminal defence firms are unsympathetic to indecent images suspects. Just as concerning is their knowledge of this complex area of law can be limited, leading to poor advice that can have a damaging effect on the outcome of your case. As an experienced solicitor with specialist knowledge of indecent images law, contact me and I can represent you during interview.

 

It can be tempting to skip this fundamental legal right, perhaps out of embarrassment or in the mistaken belief it will save time. The Police have been known to discourage suspects from having a solicitor, but always remember the Police are not on your side, they want you to admit an offence to reduce the amount of investigating they have to do. Always remember that there are very real risks of going to prison for an indecent image offence. Saving yourself some time or inconvenience by co-operating with the Police is not wise, always get legal advice before you say anything that could be incriminating, contact me for representation. 

 

If you have already been interviewed and remain under investigation I can take over your case, even if you already have a solicitor, contact me for representation. 

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What does it mean when someone is accused of ‘making’ an indecent image?

The Crown Prosecution Service describes prohibited ‘making’ offences (under Section 1 of the Protection of Children Act 1978) as:

 

1. To cause an indecent image to exist.

2. To produce an indecent image through action.

3. To ‘bring about’ an indecent image.

 

This can include everything from forwarding an email of an indecent image to unknowingly downloading an image to a hard drive. Storing a prohibited image in ‘the cloud’, a service used by most mobile phones, can also be classed as ‘making’ an image.

 

Unknowingly downloading can occur with online pop-ups, whereby someone has accessed a website and an image ‘pops up’. A trace of that image is then saved on the computer hard drive without the user requesting this. There is some protection in the law in this regard, to be convicted the Court would need to be satisfied that the accused knew that accessing the website would generate pop-ups and that those pop-ups would show, or be likely to show, indecent images of children.

 

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What does it mean when someone is accused of ‘distributing’ an indecent image?

The distribution of indecent images is often where it involves the sending or sharing of a digital file, for example by social media, email, in a chat room or file sharing programme. It must be established that the person intentionally distributed the image and that he did so intending to send an indecent image. For the latter element, the prosecution must show that the sender had knowledge that the image was indecent.

 

Being in possession of an indecent digital image can lead to a distribution charge depending on where and how the image is stored and who then receives or has access to it. Images accessible via a shared computer are exposed and therefore can fall under the description of distributing indecent images.

 

Peer-to-peer file sharing is a frequent issue in indecent image distribution and individuals involved in the peer-to-peer sharing of a file, even if the contents of the file are unknown, risk being charged with distribution of indecent images. However, this area of law is complex, . Contact me for further advice.

 

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What will happen to my devices?

It varies depending on the devices and what, if anything is found to be on the device following analysis, but you may never get the devices back. The court can make a deprivation order where it is satisfied that any property (seized from him or in his possession) has been used for the purpose of committing or facilitating the commission of any offence. If you need help getting your property returned from the police. Contact me to discuss. 

 

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Can a child be prosecuted for sharing indecent images with friends or sending nude photos of themselves?

Yes. It is a criminal offence for anyone to take, possess or share an indecent image of a child under 18. Consenting to the photo or taking a ‘selfie’ is not a defence. Despite young people being treated more leniently by the Courts there remains a risk of conviction, which will trigger notification requirement and entry onto the sex offenders register.

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This can be of significant concern to a parent or guardian of a young person. Unfortunately, ‘sexting’ and sharing explicit images has become commonplace for young people. The original image is often sent to one person, normally by consent to a known friend/boyfriend/girlfriend of a similar age, with the intent that it is for the recipient’s eyes only. The danger is that the image can be forwarded onto other friends of the initial recipient, who then send it on again and again. Very quickly the image can be a part of the wider collection of indecent images circulating the electronic world, this is naturally devastating for the young person in the original image.

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Most youths doing this do so with no knowledge that they are actually breaking the law, and no thought to the implications this could have for them.

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If a complaint is made to the Police by any party they have a duty to act. This can result in a young person being arrested or interviewed voluntarily under Caution either at the Police station, at school or at home. Always remember that any person, of any age, is entitled to have a solicitor present for an interview under caution. Contact me if your child is due to be interviewed by the Police.   

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Even if a matter is not prosecuted, an enhanced DBS check in the future could result in information relating to the investigation being disclosed to prospective employers, especially if the employment involves working with children. 

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Ultimate the CPS make decisions regarding the suitability of charging any offence. It can be argued that prosecuting youths for sending images of themselves, the law is criminalising the very people the legislation seeks to protect. There is a strong argument, therefore, to say that the majority of these cases are not in the public interest to pursue.

 

School liaison Police Officers may be able to intervene and deal with more minor matters outside of formalised investigations and prosecutions, thereby avoiding arresting and criminalising youths.

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It is different in the more serious situation where a young person is accused of possessing or forwarding (distributing) indecent images of other young people, there is an increased risk of a full Police investigation, criminal charge, Court appearance and conviction. Contact me if a child in your care is at risk of being involved with indecent images, however inadvertently or naively.

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What should I do if my child is being investigated by the police?

It is vitally important to remember that anyone interviewed under caution, either at a police station or elsewhere, such as at home, is entitled to have a solicitor present to advise them. You as a parent or guardian, or your child have the right to nominate a specific solicitor, and the police cannot then interview before that solicitor attends.

 

You do not have to use a Police arranged duty solicitor. I would strongly advise against using a duty solicitor, you will get a random legal representative from a local law firm, often the person that represents you will not be a solicitor but a police station advisor, and sadly many solicitors and advisors from general criminal defence firms are unsympathetic to indecent images suspects. Just as concerning is that their knowledge of this complex area of law can be limited, leading to poor advice that can have a damaging effect on the outcome of the case. As an experienced solicitor with specialist knowledge of indecent images law, contact me and I can represent your child during interview.

 

It can be tempting to skip this fundamental legal right, perhaps out of embarrassment or in the mistaken belief it will save time or that the case just isn't that serious. The Police have been known to discourage suspects and parents from having a solicitor, but always remember the Police are not impartial, their role is to investigate criminal offences. There are very real risks of going to prison for an indecent image offence, saving yourself some time or inconvenience by co-operating with the Police is not wise, always get legal advice before you or your child say anything that could be incriminating, contact me for representation. 

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Can I get a Caution for an indecent images offence instead of going to Court?

It is unlikely, but it is not impossible. Much depends on the number and category of the images and the individual circumstances of the case, in addition to any relevant personal circumstances of the defendant.

 

A prosecution will usually take place unless there are public interest factors against prosecution which outweigh those in favour. The decision by the police to administer a Caution will ordinarily be made in conjunction with the CPS.

 

A Caution is unlikely to be a suitable method of disposal in cases where indecent images of children are found on the suspect's device. Similarly, Conditional Cautions may be considered but are unlikely to be a suitable method of disposal.

 

It is my aim always to get you the best possible result, if a Caution is realistically achievable, I will make targeted representations to the Police and Prosecution services, backed up by expert reports, references and any other evidence that may be persuasive. I will always try to avoid a court hearing and conviction whenever possible. Contact me for further advice.

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Can I transfer my case from the duty solicitor or my current solicitor? 

Yes. If you have already been interviewed and remain under investigation I appreciated you may be frustrated by the lack of progress with your case, or the lack of updates from you current solicitor. I am happy to take over your case, I can engage with the police on your behalf, I can seek updates and the return of your property, I can write to the Police to seek to close your case, I can advise you and ensure we are fully prepared for any further interviews or Court appearances. Contact me for representation. 

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