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The stigma of an accusation involving indecent images can be emotionally traumatising and intrusive: affecting your work life, family life and beyond.

It’s no help that police investigations into these cases can drag on for many months. Large amounts of materials are often seized; your computers, mobile phones and electronic devices are subject to analysis with their contents downloaded. Accused individuals can have their reputation irreparably damaged even before a fair trial.

Indecent image allegations encapsulate both minor and severe offences, depending on the nature and number of images involved. One of the most important factors in determining the outcome of these cases is how the police and crown prosecutors grade the images.

With the widespread use of the internet and connected devices, the number of indecent images cases has enormously increased. As a result, the need for a proper framework and grading process to fairly deal with all these new cases became essential to dealing with all these cases fairly and equally.

In the latest attempt to add consistency to the grading process, the General Sentencing Council has now introduced a 3-tier system, replacing the outgoing 5-grade system in 2014.

Indecent images are now classified intro three categories: category A – deemed the most severe, category B – the mid-range in terms of seriousness and category C, the least. Each category has a list of characteristics used to assist the Jury during this process, and the deemed categories will set the sentencing boundaries.

What is an Indecent Image Charge?

The Crown Prosecution Service describes prohibited images as the ‘indecent photography of children’, but can also extend and include indecent images involving animals. The prohibitions on indecent images include moving images, animations, video photography and ‘pseudo-photography’.

‘Pseudo-photography’ refers to a generatable image, transformable through computer software. For the purposes of the law, a hand-drawn picture does not constitute an image.

The titles of the offences are broadly broken down into two separate areas; ‘Possession’ and ‘Making’. The Criminal Justice Act (1988) and Protection of Children Act (1978) describes both as:

Possession

‘Possession’ involves the physical or digital possession of a prohibited image. This could relate to a computer file, printed photography, or pseudo-photography.

Although seemingly simple in concept, complications can arise when deeming an individual as ‘in possession of an image’, particularly when it comes to understanding whether or not an image has been deleted.

Making

Offences related to ‘making’ can be just as complicated. Rarely does it mean in the traditional sense of taking a photograph, causing much confusion.

The process of an image being ‘made’ is when it is created. This normally occurs when an image is downloaded or saved to a digital device, either deliberately or accidentally. It means that an indecent image could be ‘made’ without an individual being aware of it. This is often the subject of forensic investigation – further complicated by technologies such as peer-to-peer file sharing.

In reality, ‘making’ offences are split-up in terms of Distribution and Production, both unique in terms of potential sentences.

Indecent Image Severity Grading

Category A

Category A images are considered to be the ‘most severe’ images. The repercussions for indecent image offences within this category are typically the heaviest of all related offences.

Images classed in this category depict gross assault, sadism or bestiality; obscene images involving penetrative sexual activity. This category also extends to all images that depict a child subjected to pain.

Possession of a category A indecent image has a starting point of a year’s custodial sentence, up to a maximum of 3 years.

Making offences hold much more severe penalties. With starting points for distributing category A images being 2 year’s imprisonment, and production of category A images sentences starting at 6 years custody. The sentencing for these types of offences will vary depending upon what aggravating and mitigating features the court identifies.

Category B

Under previous guidelines, a clear distinction in severity was drawn from whether or not an adult was present within indecent images. However, the new 3-tier grading system has made this fact irrelevant. Depictions of both non-penetrative sexual assault and explicit sexual activity are both now classed within category B.

Non-penetrative sexual assault refers to acts such as mutual masturbation or any oral sexual activity. In most cases, this definition involves the presence of an adult.

Images involving explicit sexual activity usually depict a child in sexual acts without the presence of an adult. This would include depictions of activities such as masturbation.

Possession of a category B image offences have a starting point of 26 weeks’ custody.

Distribution and Production offences related to this category of image range between 1 to 4 years’ imprisonment.

Category C

Indecent images not classed within A or B fall within category C – this is the broad definition supplied by the General Sentencing Council. Category C images should depict some sexually suggestive content, either indicatively or in a nudist environment.

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 cross-examined, as images are not necessarily sexual in nature.

Sentences for possession of a category C image start at high-level community orders. The production of these images could result in imprisonment for 1 to 3 years’. It is notable the severity of ‘making’ offences, even in the lowest category.

What should you do?

If you, a family member, or a friend are accused of an indecent images offence, seeking specialist legal advice at your earliest opportunity could make fundamental differences in the outcome of your case. It could be the difference between jeopardising a defence and co-operating effectively with any police investigation to lessen potential consequences.

Court dialogue for indecent images charges is increasingly technical, adding further complexities to an already complicated area of law. This means indecent images charges can relate to laws requiring specialist expertise and technical advice.

Lawtons team of specialist criminal defence experts in London have experiences in a number of specific areas of criminal law, including indecent images. Calling on this expertise may enable you to recover your reputation, reduce emotional trauma and reduce invasions of your personal life, all whilst striving to achieve a positive outcome from your case.