The term “indecent images” covers a wide range of images from those involving the sexual abuse of children to those displaying extreme sadomasochistic acts. Indecent images also include images depicting bestiality. In some cases, all three can be combined into a single image or collection of images.
Police typically identify suspects either through direct examination of a computer. There are many example scenarios where this can happen, one being the computer is taken for repair and images are discovered by the technician. However, indecent images can also be identified if the police seize a computer in an unrelated investigation and identify the offending images, or the suspect is identified through online information and intelligence. This happens when IP addresses are tracked by the police or the police identify people suspected of using online aliases.
In this blog, we will mainly be focusing on indecent images in the context of images involving sexual abuse of children.
The law states that taking, making, sharing, or possessing indecent images and/or pseudo-photographs of people under the age of 18 is illegal. A pseudo-photograph is defined as an image made by computer graphics or otherwise, which appears to be a photograph.
By this definition, indecent images can come in a variety of different formats. This can include:
- Tracings and derivatives of a photograph
- Data that can be converted into a photograph
What does the Law say?
As of yet, the term “indecent” is not defined in UK legislation, but the general idea is that it can include penetrative and non-penetrative sexual activities. The court must consider the degree of seriousness involved with each individual indecent image. The prosecution will identify how many indecent images fall into each category of seriousness. This will form the basis of the court’s view on sentence. Indecent images fall into three categories of seriousness:
Category A – This relates to images involving penetrative sexual activity, sexual activity with an animal or sadism.
Category B – Images involving non-penetrative sexual activity.
Category C – Indecent images not falling within categories A or B.
The second thing that the court will consider is what was done with the images. Again, there are 3 categories – Possession, distribution, and production.
- In the case R v Okoro (No. 3)  EWCA Crim 19, the test used in cases to determine possession was set out in the following terms:
- The images must be in the custody or control of the suspect. Was the suspect capable of accessing, or in a position to retrieve the image/images?
- The suspect must have known that they possessed an image or group of images on the relevant device/devices. Knowledge of the content of those images is not required because the statutory defences deal with that.
Distribution – parting with possession of it or exposing or offering it for acquisition by another person, including:
- allowing it to be accessed via file sharing programmes
- uploading to a site that other people have access to
- sending an image via email
Production – this relates to making the original image. It can also include downloading an image onto your device but for the purposes of sentencing this would be treated as possession. This term has been widely interpreted by the courts and could include:
- Opening an attachment to an email containing an image (R v Smith  1 Cr. App. R. 13)
- Downloading an image from a website onto a computer screen (R v Jayson  1 Cr. App. R. 13)
- Storing an image in a directory on a computer (although depending on where that image is stored, this could also be a possession charge under s. 160 CJA 1988) (Atkins v DPP; Goodland v DPP  2 Cr. App. R. 248)
What about deleted indecent images?
The following considerations are particularly relevant in relation to deleted images (R v Porter  1 Cr. App. R. 25; R v Leonard  2 Cr. App. R. 12):
- Where the photos are stored on the device
- The means by which they could be retrieved in the sense set out above
- Whether the suspect has the wherewithal to retrieve them. For example, did the suspect have the technical knowledge, software and/or equipment required to retrieve the deleted images.
The least serious offences relate to possession of category C images. These are usually dealt with by the courts by way of a community order (for example unpaid work or attending prescribed probation courses) but it can result in a prison sentence of up to 6 months. Distribution or production of even category C images will normally result in a prison sentence. Any offence relating to category A images will probably result in a prison sentence.
Below is a table that shows a guideline of how the court will deal with indecent images offences. These are only guidelines and it is important to remember that the court will look at each case individually, whilst being fully aware of the defendant’s background and circumstances:
- Starting Point = 1 year’s custody
- Category range= 26 weeks’ 3 years’ custody
- Starting Point = 3 years’ custody
- Category range = 2 – 5 years’ custody
- Starting Point = 6 year’s custody
- Category range = 4 – 9 years’ custody.
- Starting Point = 26 weeks’ custody
- Category range = High level community order – 18 months’ custody
- Starting Point = 1 years’ custody
- Category range = 26 weeks’ – 2 years’ custody
- Starting Point = 2 year’s custody
- Category range = 1 – 4 years’ custody
- Starting Point = High level community order
- Category range = Medium level community order – 26 weeks’ custody
- Starting Point = 13 weeks’ custody
- Category range = High level community order – 26 weeks’ custody
- Starting Point = 18 months’ custody
- Category range = 1 – 3 years’ custody
There are also factors that the courts will take into consideration A few examples of other factors to be taken into account are as follows:
- Previous convictions
- Age and/or vulnerability of the child involved
- High volume of images possessed, distributed, or produced
- Attempts to dispose of or conceal evidence
- Abuse of trust
- Large number of different victims
Factors that may lessen the defendant’s sentence:
- No previous convictions or no relevant/recent convictions
- Remorse shown by the defendant
- Previous good character and/or exemplary conduct
- Mental disorder or learning disability, particularly where linked to the commission of the offence
- Demonstration of steps taken to address offending behaviour
Defences – An Overview of Consent
In the case of indecent images of children, each case is extremely sensitive and has unique circumstances that do not easily allow a list of generic defences to be created. However, below is a list of the five statutory defences. It is important that you seek expert help as soon as possible if you want to successfully defend these charges. In brief, the five statutory defences are as follows:
- legitimate reason
- lack of awareness
- unsolicited photographs
- marriage and other relationships
- criminal proceedings and investigations
How can we help?
Police and prosecutors are under a great deal of pressure to prosecute people suspected of making, sharing and possessing indecent images, which means that more people are finding themselves in court on vague and insubstantial evidence. So, it is particularly important that anyone accused of such offences has a solicitor capable of identifying flaws in the prosecution evidence and acting to show that a defendant is not guilty.
As seen in this blog, the technical nature of these offences is extremely complicated. Due to this, the defence requires solicitors with experience of such offences and the technical knowledge to understand how the police will seek to prove the case against you.
If you have been charged with the offence of making, sharing and possessing indecent images, we can provide our expert defence team to represent you in court and help you avoid a potentially damaging criminal record.
At Criminal Defence Solicitors, we will look at all the facts of the accusation; from whether the police have conducted a lawful investigation all the way through to whether your actions actually amounted to a criminal act. Our team of litigators and advocates have many years of experience analysing complex factual scenarios and applying them to often novel areas of law ensuring we get the best possible results for our clients.
Do not hesitate to call us on 07739795433 or email us on firstname.lastname@example.org to get expert legal advice for you and your case.