What is the law regarding indecent images?

Last year, there were over 20,000 recorded indecent child image incidents across all on-line and social media platforms. The NSPCC have stated that this equates to one incident image being recorded every 23 minutes. Almost two-thirds of those cases related to taking, making or distributing indecent photographs or pseudo-photographs of children while a quarter involved possession of such images. The figures are significant and will inevitably result in more investigations being conducted, more arrests and more prosecutions.

The law in relation to possession, downloading and distributing indecent images can be complex. Once you find yourself under the spotlight, it can be difficult to extradite yourself away from the finger of suspicion. The factual circumstances of such cases can also be complex, for example in incidents involving shared houses, shared computers, accidental viewings and the like. The consequences of a conviction can be devastating, and can have long lasting affects well beyond the life of the case.

The prohibited conduct in relation to indecent images of children is set out in section 1 of the Protection of Children Act 1978; and a child is classed under this legislation as any person under the age of 18 years old.

Section 160(1) of the Criminal Justice Act 1988 includes pseudo photographs of a child within the definition of indecent images of children. Pseudo images are computer generated images which can often look like real photographs.

There are three offences in relation to indecent images and these are: possessing, distributing and producing.

All indecent image offences are triable in either the Magistrates Court or the Crown Court, though many such cases are heard in the Crown Court due to the seriousness nature of such offence.

In order to sentence a defendant, the court must determine which category the images fall within:

• Category A is the most serious and means that the images involve children engaging in sexual activity, as well as images relating to Bestiality or Sadism
• Category B encompasses non-penetrative sexual activity
• Category C are images which do not fall within categories A or B.

At sentence, the court has to consider whether or not the offences involved possessing, distributing, or producing indecent images. Production is the source of the offence which is also the point of where the child is harmed, hence deemed the most serious. This offence can also include the copying of images within the definition of production.

Distribution is in the middle of the spectrum, which involves sending an image to another person via any possible communication method, such as email or text message.

Possession of indecent images entails a defendant being in possession of the said images. However, if the images are on a shared computer or drive, in some circumstances it may be argued that this constitutes distribution.

Possession of an indecent image is punishable with up to 3 years imprisonment; for the distribution of indecent images of children a defendant may receive up to 5 years imprisonment; and for production, up to 9 years in custody.

If any aggravating factors are present then this is likely to lead to the imposition of a heavier sentence; such factors include the defendant having previous convictions of a similar nature, the disregard for current Court Orders, age/vulnerability of the child depicted and any abuse of trust.

In this age of forever advancing technology, it has never been easier to access indecent images via the internet and social media. People can access such material deliberately, but sometimes this can happen accidentally. Sometimes, people are part of group chats with many people, some of whom they do not know. Also, depending on the settings of the mobile telephone, media may be automatically downloaded without it ever being viewed by the recipient.

Further, peer to peer file sharing allows users to access files and such materials may be shared by multiple people, hence this would make it relatively easy to unintentionally download indecent images. Therefore, lack of awareness of indecent images is a common defence, as well as whether the image has been accessed, and are likely to be determining factors as to whether the police investigation proceeds further.

In contrast, images or videos stored on a hard drive, or stored on a computer may be indicative of the defendant's intention and the defence of accidentally accessing them will not be available.

Anyone who finds themselves being investigated for such offences should seek legal advice at the earliest opportunity, especially if they are contesting the matter, which may involve the necessity to instruct IT experts, to show for example that accidental download has taken place or images have never been accessed. The sooner advice is sought, the more robust a defence can be put forward. Equally, even if the allegations are likely to result in a guilty plea there can be considerable benefit in seeking advice at an early stage for the purpose of putting together mitigation which may well have a significant beneficial effect on the sentence which is ultimately imposed.

For more information or to discuss your case with a specialist defence lawyer, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.