How indecent images are ‘graded’ in UK criminal courts

23rd July 2019 | Sex Offences|
Nick Titchener headshot

Nick Titchener

Director & Solicitor Advocate

In Brief

An indecent image refers to a sexual image of a child (under 18) which includes nude or partially clothed children as well as children posing sexually in self generated images. Offences concerning indecent images are divided into ‘possession’ and ‘making’, and the latter is the more severe. Sentencing depends upon the content of the images. Category A images are the most obscene, and carry a maximum custodial sentence of three years for possession and a minimum of six years for making. Category B images carry custodial sentences of between 26 weeks and four years, while Category C images, the least severe, can result in anything from a high level community order to three years’ imprisonment.

How indecent images are graded

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 in order 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:

  1. Category A  – deemed the most severe
  2. Category B  – the mid-range in terms of seriousness
  3. 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) describes 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.

How are indecent images graded under UK law?

Indecent images are graded into one of three categories:

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 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 types of offences will vary depending upon what 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 images

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 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 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.

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 images 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 co-operating 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 case.

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.

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