Have you been accused of possessing or distributing indecent images? What are the possible consequences of a conviction under UK law?
If you are found guilty of an indecent image offence, the consequences are severe. Nick Titchener, director and solicitor advocate at London Criminal Defence Solicitors, Lawtons, discusses this complex area of the law and its implications.
The stigma of an accusation involving indecent images can be emotionally traumatising and intrusive, affecting an individual’s work life, family life and beyond.
Police investigations into this type of case can drag on for many months. Large amounts of materials are often seized including computers and mobile phones. They are subject to analysis with their contents downloaded. Accused individuals can have their reputation irreparably damaged, even before a fair trial takes place.
What is an indecent image allegation according to UK law?
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 this type of case is how the police and Crown Prosecution Service (CPS) grade the images involved.
With the widespread use of the internet and connected devices, the number of indecent images cases has enormously increased in recent years. As a result, the need for a proper framework and grading process to fairly deal with this proliferation of new cases has become essential to deal with all of 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.
Categories of indecent images:
- Category A – deemed the most severe
- Category B – the mid-range in terms of seriousness
- Category C – the least severe
Each category has a separate 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 indecent images can also involve 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 Protection of Children Act 1978 & Criminal Justice Act 1988
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) describe both as:
- Possession – involving 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 ‘making’ mean the traditional sense of taking a photograph, causing much confusion.
The process of an image being ‘made’ refers to 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 in terms of distribution and production, both of which are unique in terms of potential sentences.
The sentencing guidelines for indecent images in the UK
When it comes to the sentencing guidelines for indecent image charges in the UK, there are no set timeframes. Indecent images are graded into three categories which influence the sentencing for each case.
Category A images
Category A images are considered to be the ‘most severe’ as they involve penetrative sexual activity. 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.
Sentencing guidelines for category A indecent images
Possession of a category A indecent image has a starting point of a year’s custodial sentence, extending to a maximum sentence of 3 years.
Making offences hold much more severe penalties, with starting points for distributing category A images a sentence of 2 years imprisonment and production of category A images sentences starting at 6 years in custody. The sentencing for these offences will vary depending upon the aggravating and mitigating features the court identifies.
Category B images
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.
Sentencing guidelines for category B indecent images
Possession of a category B image offence has 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 images
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 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.
Sentencing guidelines for category C indecent images
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.
Maximum sentence for indecent images
The maximum sentence for indecent images is given to offences related to the production of category A indecent images. For this level of offence, the maximum sentence can be up to 9 years imprisonment. Offenders are also required to be registered under the Sexual Offenders Register.
Minimum sentence for indecent images
The minimum sentence for indecent images is given to offences related to the possession of category C indecent images. For this level of offence, the minimum sentence is a medium-level community order.
What factors affect the sentencing of indecent image offences?
In addition to the categories of indecent images being used to determine the sentencing of indecent image offences, the judge also looks at the individual circumstances and considers factors such as:
- Offenders previous convictions
- Amount of indecent images in possession
- The period over which the images were possessed
- If in addition to images, video material was also in possession
- Whether there was any commercial motivation behind the creation or possession of indecent images
- If the victim suffered pain or distress
- If the victim was drugged or intoxicated
- If there were more than one victim involved
What factors can reduce the sentencing for possession of indecent images?
In some indecent image cases, there may be mitigating factors that impact the given sentence. For example:
- If the defendant is disabled or mentally ill
- If the defendant had no previous or relevant convictions
- If the defendant shows genuine remorse
- The defendant’s age, for example, if they are young, their level of responsibility may influence the outcome
- The defendant has taken steps to acknowledge and address their offending behaviour
What should you do if you are accused of possessing indecent images?
If you, a family member or a friend are accused of an indecent image offence, seeking specialist legal advice at your earliest opportunity could make a fundamental difference in the outcome of your case. It could be the difference between jeopardising a defence and cooperating effectively with any police investigation to lessen the 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.
The team of specialist criminal defence experts at Lawtons have extensive experience in a number of specific areas of criminal law, including indecent image cases. 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.
About the author
Nick Titchener, director and solicitor advocate of Lawtons, is a dedicated criminal solicitor with considerable experience in legal cases including sexual offences, violence and assault. Nick’s measured and methodical approach means he thrives on even the most complex cases.
Nick also oversees the overall management of Lawtons Solicitors, a specialist firm of criminal law defence solicitors with branches across London, Hertfordshire, Bedfordshire and Essex.
