Indecent images of children

Introduction

Being accused of possessing, making or distributing indecent images of children is one of the most serious allegations a person can face. Even before a case reaches court, it can affect your employment, family relationships and reputation. Dealing with the allegations early and robustly is essential.

A conviction will usually result in a prison sentence, notification requirements under the Sex Offenders Register and restrictions on your use of the internet and electronic devices for many years.

These cases are often far more complex than they first appear. The fact that an image has been found on a computer or phone does not automatically prove that a criminal offence has been committed. The prosecution must prove that the defendant committed the alleged act and had the necessary knowledge and intention. Digital evidence, expert computer analysis and the circumstances in which the images came to be on a device can all be critical.

What does the law say?

Indecent images of children account for the largest type of offences before the criminal courts, after motoring offences.

There are a lot of potential offences that can be charged in respect of indent images of children. We can split the offences by the Act of Parliament that criminalises them:

• Protection of Children Act 1978 makes it an offence to make, distribute, publish or possess indecent photograph or pseudo photograph of children.
• Criminal Justice Act 1988 makes it a crime to possess an indecent photograph of a child.
• Coroners and Justice Act 2009 criminalises the possession of prohibited images of children.

There is a lot of overlap between these offences and there are situations where the police could reasonably choose anyone of them to charge a person with.

A photograph or pseudo-photograph includes photos, negatives, data stored on a computer, a tracing, film, video recordings and computer-generated images. A photograph will be indecent if it is offensive to the accepted standards of decency in society – that means what is indecent could change as societal norms change. It also means that what is or is not indecent is a question for the jury to answer.

It is normal for people found in possession of indecent images on a computer to be charged with making the image; however, the courts recognise that is a technicality of the law and so sentencing in those cases is always based upon simple possession of the image.

A prohibited image is one that is pornographic, grossly offensive, disgusting or otherwise of an obscene nature. An indecent photograph or pseudo-photograph cannot be a prohibited image. That suggests that the prohibited images offences are intended more to deal with generated images, such as drawing, cartoons, and AI generated content. We have guides that deal specifically with prohibited images and ‘deepfake’ images.

What does ‘making’ an indecent image mean?

Making an image includes the obvious things such as taking the photograph with a camera, but it also includes downloading an image or copying it from one device to another! Thus, ‘making’ covers a far wider range of activities than you might expect.

What must the prosecution prove?

The prosecution must prove several elements so that the jury is sure of the defendant’s guilt.

First, it must prove that the material is an indecent image of a child. Whether an image is indecent depends on the circumstances and the nature of the material. There may also be questions over the age of the person shown if their identity is not known, or is in dispute, and the fact they are a child is not obvious. In this situation, obtaining expert evidence will be very helpful.

Second, it must prove that the person charged was responsible for the relevant act, such as possessing, making or distributing the image. In other words, that the defendant is the person who downloaded the image and saved it to the device, or took the photograph, etc.

Third, the prosecution must prove the necessary mental element. In many cases, the central issue is whether the defendant knew what was on the device and whether they intentionally possessed or accessed the material. If a defendant had no knowledge of the offending image(s) and no way of discovering them then he cannot be guilty. This may be relevant where a person is sent an image unsolicited and does not know it is illegal until they open it. If they immediately delete the image then they should have a defence, even if the image remains on the device in a deleted state waiting to be overwritten. It will also be relevant to people who purchase second hand computer equipment that have indecent images stored on them as deleted files.

This is why digital evidence is so important. Investigators may examine devices, internet history, account activity, messages and other records to try to establish who accessed the material and when.

Defence strategies

Each case is different, which is why we will always tailor your defence to both the evidence in your case and your account of what happened. In the first instance, we might look to knock away particular elements of the prosecution case, e.g. by arguing that the photograph is not indecent. We will also look at specific defences to the allegations that can be deployed to defend you.

I had no knowledge of the image

This is a denial that you are in possession of the image. The prosecution needs to prove that you knew you had the image. They will usually try to do that with expert computer analysis showing that the image was accessed at some time when the device was in your possession. This can be challenged with our own experts who can confirm or deny the reliability of the prosecution expert’s work and provide their own opinion to the jury.

I was sent the image unsolicited and deleted it right away

If you are sent an unlawful image and do not keep it an unreasonable time, then you will be not guilty. This is something we can instruct a computer expert to investigate; they can look to see when the image was received and when it was deleted.

I knew about the images but did not know they were indecent

This may arise where you have a series of images, some of which are indecent and some which aren’t.

Imagine a situation where somebody sends you a large zip file with thousands of images. Unbeknownst to you a handful are indecent. If you do not know about the unlawful images and had no reason to suspect they were there then you are not guilty.

The image does not depict a child

In one case, our client was accused of making a video of himself having sex with a child. By the time of his arrest the video was over 20 years old; however, we were able to track down the ‘child’ and prove that she was an adult at the time the film was made.

I had a legitimate reason for possession

This is quite a niche defence that is typically applicable to police officers, lawyers, social workers and journalists. Courts will approach these defences with a measure of scepticism, which makes having expert legal assistance essential. Key to the defence is showing that you had no alternative but to have the images in your possession to carry out a legitimate purpose.

Issues arise where a legitimate reason for possessing the images applied when they were acquired but has since ceased to exist. For example, a lawyer who takes possession of a collection of indent images of children as they are part of a criminal case, they are handling. While the case is ongoing, he can rely on this defence. When the case ends, the lawyer should return the images to the police for them to be destroyed. If he fails to return them then he will no longer be able to rely upon the defence.

I am the child in the image

There have been the occasional news story of children taking images of themselves for whatever reason and then being prosecuted for making indecent images of a child. We believe there is case law, surprisingly from the Victorian era, that should provide a defence in such cases.

That case involved a young girl prosecuted under, what were then, new age of consent laws that had been introduced to protect underage girls. The appeal court quashed her conviction for having underage sex on the ground that the age of consent was introduced to protect a class of people that included the defendant. The court held that a person cannot be guilty of an offence that aims to protect that person and thus she was not guilty. In the same way, the indecent images of children laws exist to protect children and thus a child should not be convicted of an offence in which they would be their own victim.

Evidence that may help your case

Evidence in these cases nearly always comes from digital sources these days. It is important therefore to properly interrogate that evidence and ensure that the images depict what the prosecution allege. This means having your solicitor check the material to see that it shows what they claim.

It is also helpful to have an independent computer expert analyse the material to ensure that the prosecution experts have got their facts straight. See the case studies section below for an example of why this is useful.

Evidence showing who had access to a device, whether accounts were shared, whether malware or automatic downloads were involved, or whether another person could have accessed the material may be important.

Expert evidence may also be relevant where technical questions arise about how material came to be stored or accessed.

Common mistakes defendants make

One common mistake is assuming that because a person did not deliberately seek out illegal material, the matter will easily resolve itself. The circumstances surrounding possession and access need to be properly examined. Even if the image was downloaded accidentally, it remains an offence to possess it.

Another mistake is discussing the allegation with others or attempting to investigate the device personally. The case of police superintendent Robyn Williams is a case in point She was sent an indecent video via WhatsApp by her sister – who wanted the video investigated – but failed to delete or report it. She said that she had not watched the video. Nonetheless, the court found it would have been obvious what the video showed from the thumbnail. She and two others were convicted of possessing or distributing indecent images.

Speaking without thinking – a person who has been accused of rape is under a huge mental strain whether they are guilty or innocent. We have seen more than one defendant on the back foot at trial because they were poorly advised in the police interview or took no advice at all. You must have a clear idea of what you want to convey to the police before you are interviewed. You cannot delay the interview much if you have been arrested, but you can make sure you have a good solicitor who can help you organise your thoughts and put your side of the story clearly.

Not collecting the right evidence – it is expensive to defend yourself we can’t deny that. But failing to explore every avenue is an error that can cost dearly. It is vitally important that you have the right evidence from the right people to give you the best chance of succeeding at trial. That evidence might come from a friend, but often it will come from an expert who can analyse evidence from DNA, fingerprints, computers, and so on. Identifying the best expert and getting them on board will give you the best possible chance of acquittal.

Deleting material – if we had £1 for every time we heard a client say that they had X, Y or Z that would corroborate their account and show the other person is lying, but they deleted it, then you wouldn’t be reading this and the author would have retired years ago. Don’t delete important evidence!

Not getting advice – we know, we know, if you didn’t do it then you have nothing to fear. Well, you do. Most police officers – the overwhelming majority – are not out to frame anybody for something they didn’t do; however, they don’t know what happened. They are just people who have their own ideas and prejudices, and who will form their own opinions. Make sure that you can properly articulate your side of the story by instructing a solicitor who can anticipate police questions and help you get your side across clearly.

What happens next

Allegations often arise from other investigations that have nothing to do with you. They are frequently international in nature. For example, we have dealt with plenty of cases where a man is accused of a sex attack on a child in the USA and is arrested. His devices are interrogated and evidence of him exchanging evidence with people around the world is found. The FBI notifies local police who will launch an investigation.

Often the first you will know about it is when the police turn up to arrest you. You should assume that once you have been arrested the police will search your home to seize any evidence that might be relevant to the investigation. The police will seize any device likely to have photographs or messages on them: that’s phones and computers but they are also likely to take hard drives and maybe even smart watches.

Once an arrest has been made, the police will interview you about what happened. They want to get your side of the story, but they also want to test your account to see whether you are telling the truth. That means they will be looking for errors and inconsistencies in what you tell them – this is why getting it right early is so important.

After the interview, the police will assess the state of their evidence. They may decide there are further avenues of investigation that need to be pursued or they may conclude they have sufficient evidence to pass the matter to the Crown Prosecution Service for their lawyers to decide whether you should be charged with an offence or not. This is an important point in the case where your solicitor should be making representations to the prosecutor and submitting any evidence that might persuade them not to authorise a charge against you. Although the police are under an obligation to look at evidence that leads away from a suspect, we believe that you should be proactive and get as much evidence as possible yourself.

Hopefully, the prosecutor will decide against sending you to court. If they do charge you, then you will appear in the magistrates’ court. Depending on the charge, the case may be fixed for trial in the magistrates court or sent to the Crown Court to be dealt with. If your trial is to be heard by magistrates they will give you a trial date and bail you with any conditions they feel are appropriate.

If you are sent to the Crown Court, there will usually be two hearings: the plea and trial management hearing (PTPH) and the trial. At the PTPH the judge will make directions to ensure that the case is properly prepared and ready for trial. At the trial your barrister and the prosecution barrister will present their cases, and the jury will reach a verdict.

How Chetwode Criminal Defence can help

At Chetwode Criminal Defence, we understand that allegations involving indecent images carry a significant personal and reputational impact.

We can provide advice from the earliest stage of an investigation, including police interviews and the examination of digital evidence.

Our approach is to carefully analyse the prosecution case, examine the reliability of the evidence and ensure that any technical or legal issues are properly identified.

Indecent images case studies

The wrong date

Mr D was found in possession of a very large collection of child abuse images. It was alleged he had downloaded the images from the internet. Mr D denied any knowledge of the offending photographs. The prosecution expert provided dates for the downloads; however, a defence expert was able to show that the images were in fact downloaded some time earlier than the prosecution alleged and at a time when it was not clear who had been in possession of the device. In front of the jury, the prosecution expert had to concede that he had made a mistake over the dates. Mr D was acquitted.

The ‘rape’ video

Mr V was accused of various sexual offences including making an indecent image of a child after a search of his home on an unrelated investigation turned up a home video entitled “The Rape”. A prosecution paediatrician viewed the video and gave evidence that the female depicted in the rape scene was a child, aged no more than 13 years. At that point, the video recording was around 25 years old. We were able to locate the ‘child’ who confirmed that she was role playing, not being raped, and that she was 18 or 19 at the time it was made. The charges against Mr V were dropped prior to that matter going to trial

FAQs

Does possession mean someone intentionally downloaded an image?

Not necessarily. The prosecution must prove that the defendant knowingly possessed the material. The circumstances of how the image came to be stored can be important.

Can someone be convicted if the image was found on a shared computer?

Possibly, but the prosecution would need to prove who possessed the image and had the necessary knowledge. Shared devices can raise important evidential questions.

Are indecent image offences always dealt with by imprisonment?

Not always. The sentence depends on factors including the nature and quantity of material, the defendant’s role, previous convictions and other circumstances.

Will a conviction mean someone is placed on the sex offenders register?

Yes, convictions for most sexual offences, including many indecent image offences, can result in notification requirements.

Next steps

If you are being investigated for an indecent image offence, early specialist advice is important. The evidence in these cases is often technical and detailed, and decisions made at the investigation stage can have a major impact on the outcome.