If the image is of a child under the age's of 18 the short answer is no.
What if the picture was sent to my son by his girlfriend? No, that is illegal.
What if the picture was just sent to my son by his mate without him asking for it? No, that is illegal.
What if the image just downloaded onto my son's phone from a WhatsApp group chat? No, that is illegal too.
What if the whole class have a copy of the image? That image is still illegal to possess and it's also tragic for the student in the picture.
The basic rule is this - It is not legal for the child under 18 to take a explicit picture or selfie and send it to anyone, and it's not legal for anyone to subsequently possess or share the image or any explicit image of a child under the age of 18.
According to the Lucy Faithfull Foundation 60% of children have been asked for a sexual image or video of themselves. This is worrying for students and parents, especially now students are back to school after the covid lockdown and summer holidays, there is expected to be an increase in sexual images being passed around between students, often with no real understanding of the potential consequences.
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 police and courts there remains a risk of investigation and a conviction, which would then trigger entry onto the sex offenders register and the social stigma that follows.
This can be of real 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.
However, it's not difficult to see the danger of the image being 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, with naturally devastating consequences for the young person in the original image. It is for this reason that sharing or distributing an image is treated more seriously than possessing it.
Most students 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.
What to do if my son is sent an explicit image of a child under 18? The best thing to do is delete it immediately upon receipt, and make sure it is permanently deleted and is not retrievable in any way, either from the deleted items or any online cloud storage. It is a defence to be able to demonstrate that the image was not kept following its known receipt, this makes sense as we cannot regulate what our friends send to us, but we can regulate what we do with it once received.
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. Probably even worse for a young person is that the Police are likely to sieze their phone, tablet, laptop etc for forensic analysis that can take many months.
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 would involve working with children.
Ultimately the CPS make decisions regarding the suitability of charging any offence. It can be argued that by 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 also be able to intervene and deal with more minor matters outside of formalised investigations and prosecutions, thereby avoiding arresting and criminalising youths.
If you or your child are contacted 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.
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. Please don't make this mistake, always get independent legal advice.
Please note, you do not have to use a Police arranged duty solicitor. Sadly the duty solicitor scheme is a bit of a lottery, 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 cases. 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.
Ideally, with a bit of education and a frank conversation with your child about the dangers of sharing explicit images it will never get to the point where your son or daughter get involved with the police for an indecent images case. There is more detailed information on my website regarding the law on indecent images. However, if the worst does happen contact me, I will guide you through.