The legal system is in a constant state of catch-up when it comes to technology. Online access is easier and more popular than ever, with the likes of social media, mobile phones and apps contributing to this trend. It takes time for these new trends to be properly integrated into law.
To accommodate this ever-changing landscape, the law must constantly evolve to protect those that may become victims of these types of offences, ensuring offenders can be brought to justice. Just as important however is that we ensure that those that are accused of such things can also have their rights protected, and a fair hearing.
Subjective definitions of indecent images offences have caused rising numbers of police investigations. Increasingly, cases are based on evidence sourced from the worldwide web; ‘the dark web’, hard drives, hidden computer directories and smartphones. The introduction and existence of a database of recovered indecent images — known as the Child Abuse Image Database (CAID) — serves to try and ensure a level of consistency about how images are graded and to assist in the recovery and retention of such material. It is ultimately designed to protect victims, bring offenders to justice and to protect those that are accused of such offences and have a defence or deny the offence.
During police investigations, the devices belonging to accused individuals (and family) are seized for review. Their contents will be analysed for traces of indecent images, and with the recent uptake in remote (‘cloud’) storage, online accounts are analysed, too. Images that are recovered are compared to those already recovered and contained on the CAID, if they are not on the CAID they are graded according to the current guidance, for more information see ‘How Indecent Images Are ‘Graded’ in Criminal Courts.
The defining lines between the three separate indecent images offences (possession, distribution and ‘making’) are now more blurred than ever before. Cases involving the use of technology have made the legal definitions less clear.
The broad definitions provided by the Crown Prosecution Service, despite their lack of clarity, are still applied by the police and crown prosecutors in every investigation into indecent image offences.
Prohibited activities are labelled ‘making’ and distribution, and the legal definitions for each are as follows:
- Making – “To take or permit to be taken or make any [indecent images].”
- Distribution – “Distribute or show any [indecent images]”
These definitions pose more questions than answers. As case law evolves to address the subject matter of individual cases, the blurring of definitions has still not been addressed with regards to internet-connected devices and new technology.
Making Indecent Images
In 1995, as internet access grew, Parliament added the term ‘make’ to indecent images charges in response to the new trend of technology. This escalated less severe offences into the same category as offences involving production from source (i.e. taking indecent photographs of a child).
The Crown Prosecution Service have described prohibited ‘making’ offences (under Section 1 of the Protection of Children Act 1978) as:
- To cause an indecent image to exist
- Produce an indecent image through action
- ‘Bring about’ an indecent image (a particularly unspecific and wide-reaching definition)
In reality, these definitions include everything from forwarding an email of an indecent image, to unknowingly downloading an image to a hard drive. Storing a prohibited image in the cloud (a feature enabled by default in most modern mobile phones) could even be classed within this most severe category of offence.
The ‘making’ of indecent images can occur in a variety of ways. Whilst legislation used to try and keep up with new technology, courts play a fundamental role in ensuring the law is applied fairly and justly. This is exemplified by the way that the courts deal with the issue of “pop-ups”, which is where someone has accessed a website and an image “pops-up” and, by doing so – without then any further action by the user – a trace of that image is then saved on the computer’s hard drive without the user being aware of it. In these cases, which have been increasingly common, the law protects the “user” by affording a defence. For the CPS to secure a conviction, the court would have to be satisfied that the accused knew that accessing the website would generate “pop-ups” and that those “pop-ups” would depict, or be likely to depict, indecent images of children
Distributing Indecent Images
Much like ‘making’ charges, the offence of distributing an indecent image holds no consideration for individual intentions. This is termed a ‘strict liability’ offence, albeit there are statutory defences which need special consideration and are a topic in their own right. The statutory defences apply to the individual circumstances of a case and often go to the heart of what the accused knew or was aware of. In any case involving allegations of distributing indecent images, careful consideration needs to be given to how that may have taken place.
If an individual were to “part possession”, “expose” or “offer an image for acquisition”, they are engaging in prohibited activity. This causes further complexity when it comes to the very nature of digital images.
Possessing a digital image could leave an individual susceptible to charges for distribution depending on where and how it is stored and who then receives or has access to it. Prosecutors can argue images accessible via a shared computer are exposed, and therefore fall under the description of distributing indecent images.
Peer-to-peer file sharing is a frequent topic in indecent image distribution, individuals involved in the peer-to-peer sharing of a file, even if the contents of the file is unknown, can still be liable to charges. However, as with all things, it isn’t as simple as this. For example, if someone were to exchange a film and that film contained indecent images of adults, on the face of it, they wouldn’t be committing an offence. The courts’ have had to decide a case where the film in question also then had a ”trailer” at the end in which indecent images of children were also present, in this case, it was accepted that the accused hadn’t been aware of the “trailer” and so couldn’t be held responsible for distributing indecent images of children given that fell outside of what he knew. As with all cases of complexity, the facts of individual matters need to be given careful consideration and as this case illustrates.
New technologies and innovations have added further complexity to this already confusing aspect of the law. If you, or someone you know, is facing these charges it is vital that they seek the assistance of an expert criminal defence lawyer. One not only experienced in defending indecent images cases but one that can call on the knowledge of cyber experts and expert computer witnesses to help form a strong defence case.
It is unfortunate that indecent image offences are so broadly defined; it now means indecent image offences can be unnecessarily escalated, even if an individual’s intention was completely innocent. This makes the need for expert advice even greater – and it is advisable to do so at the earliest indication a charge may arise, for the best chance of achieving a positive outcome.