The internet has changed our lives forever, often in positive and helpful ways, but also in ways we could not have imagined. The exposure to risk and corruption is far greater, and easier to succumb to than at any point in human history. What was once restricted to the top shelf of a magazine rack, policed and monitored for content, is now a pandora's box full of unregulated and unrestricted material that leads many people down a rabbit hole they would otherwise never have considered entering. The sad reality of the internet is that if you do not regulate your use of adult material the risks of accessing illegal content are huge.
Allegations involving indecent images can be particularly distressing. People who are accused can face social services involvement, impacting access to their own children, and the stigma of being accused of a criminal offence, often for the first time, can itself be a massive shock. We understand the trauma this can cause, and our specialist indecent images solicitors take a non-judgmental approach to helping our clients achieve the best possible result.
So what are ‘indecent' images?
‘Indecent images' is a legal term which actually includes indecent video files, copies of photographs or video files, and computer data capable of conversion into a photo or video file.
The test for indecency is something a jury decide based on the recognised standard of what is acceptable.
In a child pornography case, a person in an indecent image is considered to be a child if he or she is less than 18 years old.
Making indecent images
The law on so called ‘making of indecent images' is contained in the Protection of Children Act 1978.
This makes it an offence to take, be allow to be taken, or to otherwise make indecent photographs or pseudo-photograph. A pseudo photograph is an image which looks like a photograph but was not made using a camera.
‘Making' an image includes downloading an image from a webpage to a computer screen.
It is also an offence to distribute or show such images.
Possession of images with a view to later distributing or showing them is also covered by the legislation.
It is also illegal to advertise to others about the distribution or making of images.
To secure a conviction against a person, the prosecution has to prove to the jury that the possession or making of the images was deliberate and knowing. This means that accidental downloading where the person did not know they had been downloaded may not be an offence.
The prosecution also has to prove that the image was an image of a child, and ‘indecent'.
The word ‘making' in this area of law can be somewhat confusing. The courts actually regard the act of voluntarily downloading an indecent image from a web page onto a computer screen as ‘making' an image.
Defences to indecent images allegations
The main defence for someone who has in their possession or shows indecent images is that there was a legitimate reason for the possession. ‘Legitimate reasons' include when the possession include for the purposes of law enforcement, or in the context of criminal legal proceedings.
Another defence is available where the person has not seen the images in question. This may be relevant where the images appear in a computer cache among many legal images and could have been downloaded without appearing on a computer screen. If the defendant did not have cause or suspicion that the images were indecent, there may also be a defence.
If the image was of the partner or spouse of the person accused and over the age of 16, the person in possession of it has a defence.
If the image was sent to the defendant without having been requested, and not kept for ‘an unreasonable time', he or she may have a defence. This typically might mean somebody who is sent an image by somebody he or she knows, maliciously or as a practical joke, and deletes it pretty much immediately.
Indecent images cases can be dealt with in either the Magistrates or the Crown Court. However, it is unlikely unless the number of images is very small and they are a low level of seriousness that magistrates would consent to the case being heard in the lower court.
Every indecent images case is of course different. That said, there are some basic procedures that a competent indecent images solicitor will take in the preparation of the case, which are necessary most of the time.
In the majority of cases the indecent images solicitor, or independent forensic expert, should arrange to view the relevant images. This is necessary to assess the likely age of the subject of the images and to assess the category of the images.
When investigating the category, description, and origin of the images, a specialist indecent images lawyer should make a particular note of the following:
The content of the images
All relevant technical data relating to each file
Whether any production company logos or watermarks are visible, which may indicate that the pornography may be legal
Whether any of the images are duplicates
In cases where the possession of the images is denied by the client, the legal team should look at instructing a forensic computer expert. The standard of such experts varies widely, and care should be taken to find an expert with advanced knowledge and experience of this area.
The things that an expert should be asked include questions as to evidence of the identity of the user who viewed images, evidence of whether active searches were done for the images, whether the images can be proved to have been viewed, and whether there has been any deliberate editing or saving of the images, or whether images are stored as a result of automated processes. The issue of remote access of a computer by a third party should also be considered although this a highly specialist area and there are very few experts with the requisite knowledge or skill to confidently deal with this possible defence. The location of images, for example in a temporary internet file folder, may also be relevant if it shows that an item was not easily retrievable to the user.
Using a specialist indecent images solicitor
It is no secret that law is a profession which is slow to catch up to changes in technology. To suggest that there is a 20 year delay in adopting new technologies is probably not unfair. In this context, easily finding an indecent images solicitor with a specific understanding of the law and technology relevant in images cases is not a foregone conclusion. Both the indecent images solicitor and the advocate should be aware of the technical forensic areas mentioned above, but also be reluctant to just accept what the prosecution says about the strength of the case without doing their own investigations. Proactively defending, rather than simply going with the prosecution, is the way these cases should be prepared.
Sentences for indecent images cases
Of course, in many cases, the client will have to plead guilty. This may be the case if admissions have been already made in the police station interview, for example, if the client declined to have a solicitor present.
The sentencing will be based broadly on two areas, these being the number and category of the images. The images are graded using a simple system of categorising each image as either A, B, or C, A being the most serious.
Category A images include penetrative sexual activity, possession of images involving sexual activity with an animal, or sadism.
Category B images are of non-penetrative sexual activity.
Category C images are ones involving erotic posing, often partially clothed.
The more level A and B images are present, the greater the chance on conviction of a custodial sentence.
If there is an element of distribution of the images then the sentence is uplifted to a higher bracket and carries a greater risk of an immediate custodial sentence.
As with many sexual offences any conviction, or even simple caution, comes with a requirement to "notify". In lay terms this is often called the 'sex offenders register' but in reality it is far less public and invasive than might initially be feared.
Alongside the requirement to notify many, if not all, indecent images of children cases that end in a conviction will carry a Sexual Harm Prevention Order or SHPO for short. These orders are written specific to each case but come with a general set of restrictions such as barring the subject of the order from deleting their internet search history, making their devices available for inspection on request, or allowing monitoring software to be installed on their digital devices.
The main source for information on sentencing is the Sexual Offences Definitive Guideline, released in 2013, which gives guidance on sentencing for every type of sexual offence.