In the UK, allegations involving indecent images of children are taken extremely serious. Defending an indecent image allegation requires a thorough understanding of the relevant laws and how the potential defences may apply. It is crucial that if you are accused of an offence concerning indecent images of children that you understand what your options are and the subsequent consequences.
What Are Indecent Images?
The word ‘indecent’ is not defined in legislation. An indecent image refers to an image of a child, under the age of 18, which is sexual in nature and may include image of nude or partially clothed children, or children posing in a sexual manner. While indecent photographs can be in physical or digital possession, they are often accessed online. Law enforcement teams and specialist police units are internationally using technology to identify people who are making, distributing and accessing indecent images of children on the internet.
Indecent images can involve children together, or an adult with a child.
There are three main offences which relate to indecent images of children, a suspect may be charged with one or multiple offences concerning indecent images.
Possession of indecent images of children
A person alleged to be in possession of an indecent image of a child is said to have custody and control over that image, so that they can freely access it and know its location on the applicable device.
Making indecent images of children
Making indecent images often confuses people, and it is a misconception that to make an image you have to be the person in the image or behind the camera, this is not the case. For a person to be guilty of making an indecent image of a child they have had to have downloaded the images bringing it into their possession.
There are various way in which an image can be downloaded; clicking on the image on a website, opening an attachment, and opening a link which takes the user to the indecent image. By the time the police seize your devices the actual image does not have to be present, but if police forensic examinations show a file path showing a download has taken place, of what is believed to be an indecent image, then you can be guilty of the offence.
Distribution of indecent images of children
A person distributes an image if they show or offer the indecent image which is in their possession to another person, for example distributing an indecent image would include forwarding an email attachment, or text message. The other person does not have to receive the image nor do they have to open it for the offence to be complete.
What is a Pseudo – Photograph?
A pseudo photo is an indecent image which has been made by computer graphic software and has the appearance of a photograph. For the pseudo photograph to be indecent it must meet the same criteria referred to above.
Categorisation of Indecent Images of Children
If the police find indecent image of children on your device they will work to place the images into categories ranging from A to C.
Category A Images
Category A images involve penetrative sexual activity. This is the most serious class of images and carries the most lengthy sentences for image offences.
Category B Images
Category B indecent images involve non-penetrative sexual activity refers to acts such as masturbation or any, non-penetrative oral sexual activity.
Category C Images
Indecent images in C category depict some sexually suggestive content or posing but do not include any sexual activity. Category C images could encompass everything from commercially published images to family photographs. In cases involving these images, it is usually the intentions of the accused individual that are in issue, as images are not necessarily sexual in nature.
Defences to Indecent Image Offences
1. Lack of Knowledge or Intent
Unintentional Possession: The accused did not know they were in possession of the indecent images. This could happen if the images were downloaded without the person’s knowledge, such as through automatic downloads, malware, or shared networks.
No Intent to View: Even if the images were found on the accused’s device, they may not have intended to view or possess them. For example, if the images were received unsolicited via email and not opened or viewed.
2. Legitimate Purpose
Artistic or Scientific Merit: The images were possessed for legitimate reasons, such as research, education, medical purposes, or art. This defence requires proving that the possession was necessary and for a legitimate purpose.
Law Enforcement: Individuals working in law enforcement or IT security might come across such images in the course of their duties and can argue that possession was part of their professional responsibilities.
3. Forensic Challenges
Tampering or Hacking: The defence might argue that the device was hacked, and the images were placed there without the owner’s knowledge. This would require forensic evidence showing signs of unauthorised access.
Ownership Dispute: If multiple people had access to the device, the accused might argue that someone else placed the images on the device.
4. Technical Defences
Lack of Evidence: The prosecution must prove beyond a reasonable doubt that the accused knowingly possessed the images. A lack of clear evidence tying the accused directly to the images can be a defence.
Technical Malfunctions: Defences might include arguing that the images were inadvertently cached by the device’s browser or were part of legitimate files that were corrupted or misinterpreted by scanning software. Again, scientific evidence for the defence would be required in these circumstances.
5. Marriage and Other Relationships
Section 1A PCA 1978 and section 160A CJA 1988 provide confirmation that a defence is available for photographs of a child aged over 16 where the defendant is married to, or in a civil partnership with, them. The defence does not remove the requirement for consent from the child in question to the photograph: section 1A(4) of the PCA 1978 and section 160A(4) CJA1988.
What to do if You Have Been Arrested for Indecent Images of Children?
Arrests for indecent image offences very much make the suspect feel that they are guilty before any evidence is actually obtained, this is because of the consequences just being under police investigation can bring. For example; you are likely to be placed on police, prohibited from having contact with children, prevented from returning to the family home and in some cases suspended from work. Obtaining specialist legal advice to make this early process as easy as possible for you whilst under police investigation can make a significant difference. Indecent image investigations often take a considerable length of time to complete, making the pre-charge stage bearable for our client’s is paramount.
If your case is sent to court, and you have been charged with indecent image offences then we will be required to obtain the evidence being relied upon to prosecute you. We will carefully consider the evidence and highlight any weakness or evidential issues. It may be a defence forensic expert is required to assist defending your case, but with the correct support and specialist legal advice getting a fair and just outcome for you is our priority.
To discuss your case and to obtain informed and honest advice contact our team for a free initial consultation.