Investigations in to and prosecutions for indecent image offences are extremely prevalent. The way in which such cases are investigated and the charges which follow has changed. This has been influenced by an increased awareness of technology. Prosecutors are now more frequently charging defendants with making indecent images under s.1 of the Protection of Children Act 1978 (the 1978 Act) as opposed to possession of indecent images under s.160 Criminal Justice Act 1988 (the 1988 Act). Developing case law has a significant impact upon this shift.
Indecent image offences
Under the Criminal Justice 1988 Act, it is an offence for a person to have (possess) any indecent photograph or pseudo-photograph of a child in their possession. Possession involves both a physical and a mental element, meaning that the Prosecution must prove that a person has ‘custody and control’ of the photographs stored on a device in order to ‘possess’ them. The prosecution would need to establish that a person said to be in possession of photographs must be capable of, or in a position to, retrieve them. Being able to retrieve photographs means that a person must be able to show them on a screen, to make a copy of the image or to send the image to someone else.
Proof of knowledge – custody and control of the indecent image
The mental element requires proof of knowledge. A person must knowingly have custody and control of the photographs in question, usually those found on the device. The maximum sentence for possessing an indecent image, or images, is five years’ imprisonment.
Under s.1(a) of the 1978 Act, it is an offence for a person to take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child. In R. v. Smith; R. v. Jayson  1 Cr App R 13, CA, the court held that where a person opens an attachment to an email that contains an indecent photograph or pseudo-photograph of a child, they may be said to ‘make’ that photograph within s.1(1)(a). They will be guilty of an offence, subject to it being additionally shown that when they opened the attachment they did so intentionally and with knowledge that what they were making was, or was likely to, be an indecent image of a child.
Downloading a photograph or pseudo-photograph from the Internet to a device such as a laptop, tablet, phone or PC, could also be said to constitute the ‘making’ of a photograph. If that was done intentionally and knowing that the image was, or was likely to be, an indecent image of a child, then a person would be guilty of an offence under s.1(1)(a).
Pop ups on websites
Many clients advise that they were simply viewing legal online pornographic material, when a ‘pop up’ suddenly appeared. This was considered in the case of R. v. Harrison  1 Cr App R 29, CA. The court held that with pornographic websites in which indecent photographs of children had appeared by way of an automatic ‘pop-up’ mechanism, it was the appellant and not the web designer who was the ‘maker’ of the image. To be found guilty of an offence in these circumstances, the jury would need to be sure that the defendant knew about the ‘pop-up’ activity when he accessed the adult pornographic sites and that, in accessing those sites, there was a likelihood that the ‘pop-ups’ would include illegal images. The maximum sentence for making indecent images is ten years’ imprisonment.
The law is undoubtedly draconian, and it is easy to see how a person could get caught up in an investigation and find themselves being interviewed by the police, and even prosecuted. There are few available defences and such cases often turn on a lack of knowledge and intention.
Given the prevalence of this type of case, there is an enormous cost to the police in investigating alleged criminal conduct. Cases often take a very long time to be resolved whilst electronic devices are examined. Throughout that time, a person’s life can literally be turned upside down.
Scrutiny of electronic devices in indecent image offences
In cases of this type, it is not uncommon for the police themselves to carry out the review of the electronic device or devices. This can cause all sorts of problems. Few police officers could class themselves as true experts in the field of computer science and technology. Even without the necessary experience, appointed officers are frequently asked to try and identify and conclude on all sorts of issues which can influence the direction of the case. This is where mistakes can be made.
The police may not detect that images are duplicated (often many times), or may not fully appreciate if a file is in fact accessible. If a file is not accessible, then a suspect may not even know of its existence and so might not be guilty of any offence concerning that file. Furthermore, just because a device shows that a search or series of searches have been carried out on a device, it doesn’t mean that those searches were made by the person under the spotlight. Recovered files may have been stored at any time by any user.
The need to get expert legal advice
These issues, and more, demonstrate the real need to instruct a lawyer when caught up in an investigation of this type. The consequences can result in prison sentences being imposed, which can adversely impact every aspect of a person’s life. There is always a need to carefully scrutinise the findings relied upon by the police.
Some of the very early considerations to consider include where the device was found, who had access to the device(s), whether or not the computer or device had a password and whether or not there were multiple users. This can be overlooked by prosecution experts. Only then can you realistically begin to review whether it can be said that any material in the form of an image or images could be considered to have been ‘possessed’, ‘made’, or ‘distributed.’
If it is accepted that the prosecution can overcome the hurdle of establishing the issue of possession or making, the next consideration will be to consider knowledge and intent. If that hurdle is overcome, it will then be necessary to establish if the investigators have properly categorised or graded the images. The new categorisation ranges from A to C, category A being the most serious.
Officers and investigators are not always familiar with how to approach this exercise and mistakes can be made. It may be necessary for the defence to instruct its own expert, who will be able to check the categorisation and confirm the accuracy of the how images have been categorised by the police.
Call Wells Burcombe today
I hope this article demonstrates the need to obtain competent advice from a defence solicitor who has the necessary experience in dealing with indecent image offences. Call our specialist team if you have been invited in for questioning at a police station, or if you are facing formal prosecution.
Contact David Wells, Senior Partner, at Wells Burcombe’s criminal defence team today on 01727 840 900, or directly on 07939 026751. Alternatively email David at David.firstname.lastname@example.org or contact us via our contact page.