Prohibited Images of Children

Introduction: What this allegation means for you

Many people are unfamiliar with the offence of possessing prohibited images until they are arrested and are often surprised to learn that the law criminalises certain images even where they are not photographs of real children.

Unlike offences involving indecent photographs, this offence is aimed primarily at pornographic images that depict children, but which are not themselves photographs or pseudo-photographs. They may include computer-generated images, cartoons, drawings, manga or other fictional depictions. Although no real child may have been involved in creating the image, Parliament decided that some types of material are so extreme that possession alone should be a criminal offence.

These cases are often far more legally complex than they first appear. The prosecution must prove several elements before a person can be convicted, and each element may be open to challenge. Whether an image is "pornographic", whether it depicts a child, whether it falls within one of the statutory categories and whether it is "grossly offensive, disgusting or otherwise of an obscene character" are all matters that may be disputed.

If you are under investigation, obtaining specialist legal advice at an early stage can make a significant difference to the outcome of your case.

What is a prohibited image of a child?

Section 62 of the Coroners and Justice Act 2009 makes it an offence to possess a prohibited image of a child. The offence was introduced because existing legislation relating to indecent photographs only applied to photographs and pseudo-photographs. An influx to the UK of Japanese-style Manga graphic novels depicting seemingly very young characters engaged in sexual activity coupled with advances in computer technology meant that increasingly realistic sexual images could be created relatively easily without using an actual child led Parliament to decide that many of these images should also be criminalised.

A prohibited image does not have to be a photograph. It may include:

• computer-generated images;
• digital artwork;
• cartoons;
• manga or anime illustrations;
• drawings or paintings; and
• other fictional visual depictions.

To be prohibited an image must have three essential characteristics, each of which the prosecution must prove so that the jury are sure they are correct.

First, the image must be pornographic. This means that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Context can be important. Where an image forms part of a larger series, the court may consider the surrounding material when deciding whether the image is pornographic.

Secondly, the image must fall within one of the categories defined by the Act. These include images focusing principally on a child's genitals or anal region or depicting certain specified sexual acts involving a child.

Thirdly, the image must be grossly offensive, disgusting or otherwise of an obscene character. This is an additional requirement which distinguishes prohibited images from many other forms of fictional artwork or animation.

If any one of these elements cannot be proved, the offence is not made out.

Unlike the law relating to indecent photographs of children, the Coroners and Justice Act 2009 does not create a separate offence of making prohibited images. Instead, it criminalises possession of certain prohibited images. A person who creates such an image will immediately commit the possession offence. This does seem like an oversight by Parliament. We have searched Hansard for an explanation but none can be found. We can only assume that Parliament was more concerned with the possession of material coming into the UK from abroad than it was with home grown creators.

How are prohibited images different from indecent images?

Although the offences are often mentioned together, they are legally distinct.

The offence of possessing indecent photographs of children criminalises photographs and pseudo-photographs of children which are legally regarded as indecent. A pseudo-photograph is an image that appears to be a photograph, even if it has been digitally created or manipulated.

By contrast, the prohibited images offence is designed to capture material that is not a photograph or pseudo-photograph. It typically applies to fictional or artistic depictions that would otherwise fall outside the earlier legislation.

The legal tests are also different.

For indecent photographs, the central question is whether the image is indecent according to recognised standards of propriety.

For prohibited images, the prosecution must establish that the image is pornographic, is grossly offensive, disgusting or otherwise obscene and that it shows one of a list of specific things, e.g. the focus of the image is principally on a child’s genitals, it shows the child masturbating, engaged in sexual intercourse, and so on. Because this offence was originally sparked into life by concern over depictions of children in Manga graphic novels, the law specifically prohibits images showing children engaging in sexual activity with animals, whether they be dead, alive or imaginary!

Because the legal tests differ, an image may fall within one offence but not the other. Careful legal analysis is therefore essential before assuming that a criminal offence has been committed.

What must the prosecution prove?

The prosecution bears the burden of proving every element of the offence beyond reasonable doubt.

Possession

The prosecution must first prove that you possessed the image. Possession is wider than physically holding a device. Images stored on a computer, mobile phone, tablet or cloud storage may amount to possession if you knew they were there and had the ability to access or control them.

However, digital possession is not always straightforward. Modern devices automatically create temporary internet files, caches and backups without the user's knowledge. Images may also remain in deleted or unallocated areas of storage which cannot be accessed without specialist forensic software. This can create situations where somebody buys second hand computer equipment that contains prohibited images as deleted or temporary files that the new owner knows nothing about.

Whether a person genuinely possessed a particular image is often one of the most important issues in the case.

The image depicts a child

The prosecution must prove that the image depicts a child.

Where the image is fictional, particularly where they show non-realistic figures, questions may arise about whether it is actually depicts a child at all. In some cases, age may be ambiguous and become a significant issue at trial.

The image is pornographic

Not every explicit image is pornographic within the meaning of the Act. The prosecution must establish that the image was produced solely or principally for the purpose of sexual arousal.

Images forming part of a wider artistic, educational or narrative work may require the court to consider their context rather than looking at the image in isolation.

The image falls within one of the statutory categories

The legislation only criminalises certain categories of image.

Broadly speaking, these include images concentrating on a child's genital or anal region or depicting specified sexual acts involving children. If an image falls outside those statutory categories, the offence cannot be proved regardless of how offensive some people may consider it.

The image is grossly offensive, disgusting or otherwise of an obscene character

This additional requirement is an important safeguard within the legislation.

Many fictional images may be sexual in nature but still fail to satisfy this part of the legal test. Whether an image reaches this threshold will depend upon its content and is ultimately a matter for the jury to decide upon.

Common defence strategies

Every case depends upon its own facts, but a number of defence arguments regularly arise.

Challenging possession

Digital forensic evidence is rarely as straightforward as it first appears.

A defence may arise where images were automatically downloaded into internet cache files, existed only in deleted areas of storage or were otherwise inaccessible without specialist software. This overlaps with the defence that you had no knowledge of the images.

Similarly, where several people had access to a device, proving who actually possessed particular files may be difficult.

Lack of knowledge

In some cases, a defendant may genuinely have been unaware that the images existed.

This may arise where files have been downloaded automatically, stored by malicious software or placed on a shared device by another user or previous owner of the device.

Knowledge alone is not always enough to determine the issue, but the surrounding evidence may cast significant doubt upon whether possession can properly be established.

The image is not a prohibited image

The prosecution must satisfy every element of the statutory definition, which is set out above.

A defendant may reasonably argue that an image does not meet the statutory definition of a prohibited image and thus he cannot be guilty. We’ll deal with whether the image depicts a child in a moment, but if the image is not pornographic or is not grossly offensive then it cannot be prohibited.

The image does not depict a child

Particularly in relation to cartoons and manga artwork, there may be genuine disagreement about whether the character depicted is intended to be under 18.

Where age cannot be established beyond reasonable doubt, the prosecution will fail.

Challenging the forensic evidence

Many prosecutions depend heavily upon digital forensic examination. The defence should always instruct its own expert to examine the prosecution evidence, review how files were located and assess whether the conclusions reached by investigators are justified. There are frequently questions that can be asked about the justification of conclusions that have been reached, which may undermine the strength of the prosecution evidence.

Sentencing

Possession of prohibited images of children is a serious criminal offence and can result in imprisonment.

The court will consider numerous factors when deciding sentence, such as the nature and number of images, whether the images of been distributed to others and whether the defendant created the image or merely possessed them.

Not every conviction results in immediate imprisonment. Depending upon the circumstances, sentences can range from a community order through to a substantial custodial sentence.

Each case is assessed individually, and the court will consider both the seriousness of the offending and the personal circumstances of the defendant before deciding upon the appropriate sentence.

How Chetwode Criminal Defence Solicitors can help

Allegations involving prohibited images of children require specialist legal knowledge. They involve detailed statutory definitions, complex digital forensic evidence and difficult legal questions that do not arise in many other criminal cases.

At Chetwode Criminal Defence Solicitors, we carefully examine every aspect of the prosecution evidence. We work with experienced digital forensic experts where appropriate, scrutinise the police investigation and identify whether the prosecution can genuinely prove each element of the offence.

We will prepare your case thoroughly and challenge the prosecution's evidence robustly. Where the evidence is overwhelming, we will advise you honestly about your options and present the strongest possible mitigation to achieve the best available outcome.

Being investigated for this type of offence can have profound personal and professional consequences. Early specialist legal advice is often one of the most important steps you can take.