Defending Against Charges of Indecent Images and Sexual Offences

Defence of Indecent Images and Sexual Offences

If you have been accused of a sexual offence, it’s normal to feel scared, upset and confused. You will no doubt have so many questions to ask; how, what and why, but the best advice right now is an answer to the question, how do you defend yourself against this accusation?

Even if you’ve accidentally accessed indecent images, you may still be in trouble, so we are here to offer support and advice in what is a stressful time. Old Bailey Solicitors is a team of expert defence solicitors specialising in possession and distributing indecent images, and indecent images offences overall.

Whether you have previous convictions, are charged with possession or distribution, are concerned the police have cause to suspect you, if you downloaded an image for a legitimate reason, have a large volume of images or have questions about computer graphics, we can answer all your questions and help you.

As stated in the Criminal Justice Act 1988, the law relating to indecent images is as follows:

‘The taking, making, sharing and possessing indecent images and pseudo-photographs of people under 18 is illegal.‘

As the internet has developed over time, accessibility to indecent material has increased dramatically, and it unfortunately affects individuals greatly. Law enforcement teams and specialist police units are internationally using technology to catch people who are making, distributing and accessing this illegal material. When a photograph of a child is involved, the crown prosecution service needs to ascertain the level of indecency.

Categorisation of indecent images

Indecent images are categorised into three groups, which are:

• Category A – most severe – these are the most serious of offences and carry a maximum custodial sentence of three years for possession, and a minimum of six years for production.
• Category B – these images carry custodial sentences of between twenty-six weeks and four years
• Category C – they are the least severe and can result in anything from high level community Service to three years in prison.

There are also 3 broad categories of offending:

Possession is having custody and control of the photographs stored on a device (often referred to as “making” due to the image being reproduced every time it is downloaded).

Distribution is sending or forwarding on an image you have in your possession, or showing, or offering it to another person for them to have. If you “forward” an email with an indecent image, for example, you are distributing it.

Production relates to making the original image (for example, taking the photograph).

Possession of Category A images – meaning in law

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 portray a child subjected to pain.

Sentencing Guidelines for Category A images

Possession (including “making” or reproduction) has a starting point of a year’s custodial sentence, extending to a maximum sentence of 3 years.  Starting points for distributing category A images involve a sentence of 3 years’ imprisonment, and sentences for production of category A images start at 6 years in custody. The sentencing for these types of offences will vary depending upon the aggravating factors and mitigating factors the court identifies.

Possession of Category B images – meaning in law

Non-penetrative sexual activity is classed within category B.

Non-penetrative sexual assault refers to acts such as mutual masturbation or any, non-penetrative, oral sexual activity.  In most cases, but not all, this definition involves the presence of an adult.

Sentencing Guidelines for Category B images

If you’ve been charged with possession of a category B photograph this offence often carries a sentence of more than 26 weeks’ custody.  Distribution offences start at 12 months’ and production offences carry a 2 year starting point, with a range up to 4 years’.

Possession of Category C images – what this means in law

Indecent images in the C category are generally images depicting some sexually suggestive content or posing, 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 in issue, as images are not necessarily sexual in nature.

Sentencing Guidelines for of Category C images

Possession of Cat C images offences are usually dealt with by the courts by way of a community order, although there are situations that can result in a prison sentence of up to 6 months.

Distribution or production of even category C images will normally result in a prison sentence but call us before you panic, and we can advise.

Prohibited images

Prohibited images are indecent images which are pornographic, images of a child’s genitals or anal region or are grossly offensive, disgusting or otherwise of an obscene character and which generally amount to sexual abuse.

Pseudo-Photographs

A Pseudo-photograph is an image, whether made by a computer graphic or otherwise, which appears to be a photograph. These are treated the same as an actual photograph and are contrary to section 160 of the Criminal Justice Act 1988.

Possession of indecent images of children

Possession of indecent images is not the most serious of these types of offences, depending on circumstances. Again, possession is split into three categories: A, B, C:

• Category A: Possession of images involving penetrative sexual activity. Possession of images involving sexual activity with an animal or sadism
• Category B: Possession of images involving non-penetrative sexual activity.
• Category C: Possession of other indecent images not falling within categories A or B

In most cases the intrinsic character of the most serious of the offending images will initially determine the appropriate category. If, however, the most serious images are unrepresentative of the offender’s conduct a lower category may be appropriate. A lower category will not, however, be appropriate if the offender has produced or taken images of a higher category.

Distribution or making of indecent images of children

Indecent photographs of children, and the distribution or making of them holds a statutory maximum ten years’ imprisonment.

Distribution includes possession with a view to distributing or sharing images. In most cases the intrinsic character of the most serious of the offending images will initially determine the appropriate category.

Have you had electronic devices seized?

In some cases, the police will arrest you, interview you at the police station and then bail you for months on end while they examine your computer equipment.  Your devices will not be returned to you until the forensic examination is complete and, if unlawful images are discovered, the device will not be returned at all.  The police may interview you when they first seize your devices and they will definitely interview you after they receive the results of the forensic computer examination.

What happens at this stage?

If indecent images are discovered on your laptop, desktop, phone or tablet, then you will probably be charged and bailed to attend court.  In some cases, suspects will have been Released Under Investigation for many months.  In those cases, a Postal Requisition may be sent, summonsing the suspect to court.   The Magistrates’ Court is the first port of call, but the majority of indecent image criminal cases will then be sent to Crown Court.

(Read our blog: What does being Released Under Investigation Mean?)

I have already been charged with indecent images

Defences will vary depending on the specific circumstances of your case and our advice is quality and bespoke because of this. We can look at the aggravating and mitigating factors surrounding your case.

Some possible defences may include:

• Legitimate reasons for having the indecent image in your possession
• You hadn’t personally seen the indecent image and did not know, or have any reason to suspect it to be indecent
• The indecent image was sent to you without any prior request made or on your behalf and you did not keep it for an unreasonable time
• The computer or device in question was used by others

We advise that you seek advice and representation immediately. We can obtain initial evidence from the prosecution and advise you in relation to the strength of the evidence, the pleas you should enter and the sentencing powers available to the court.

Penalties:

If you have been arrested, charged or interviewed by the police in relation to indecent images, it is likely that the police will provide you with information regarding the Stop It Now campaign and the Lucy Faithfull Foundation.

If you are convicted of any offence relating to indecent images, it is likely that the court will impose a Sexual Harm Prevention Order (SHPO) which will regulate your future access to, and use of, the internet.

The conviction will also require you to comply with the notification requirements of the Sexual Offences Act 2003, otherwise known as the Sex Offenders’ Register. The length of this requirement will depend on the sentence imposed and the period the SHPO will remain in force.

If you have been arrested or you are facing an investigation in relation to offences of this nature, you will need legal advice. Old Bailey Solicitors will provide you with non-judgmental advice, assistance and

How long can you be released under investigation for?

There is no time limit for being under released investigation by police.

You will receive a notice of no further action or alternatively a notice that you are to be charged with an offence once you are no longer ‘released under investigation’

What should I do if I’m accused of downloading indecent images?

If you have been arrested or charged in connection with indecent images, you will understandably be feeling stressed and anxious about what is to come. You may also worry about how the people closest to you will view you and feel afraid that the nature of your situation will become public knowledge.

The details of the investigation against you are unlikely to come to light unless and until you are charged with an offence.  Even then, a local report may only follow after the first court hearing.  The Police will only inform your employer of the situation if your job involves working with children or vulnerable people.  A risk assessment will be carried out before any disclosures are made.

Accused of making indecent images?

You need to contact a solicitor to discuss implications of what you are potentially being charged with.

During a police investigation, electrical devices belonging to the person who’s been accused will then be taken and examined. By this, we mean that the contents of their devices will be thoroughly analysed for any traces of indecent imagery.  The police are able to trace imagery from images saved in the “cloud” too, not just the hard drive.  Deleted images may also still be stored on the device cache.

The legal system is in a constant state of change when it comes to technology. Online access is easier and more popular in modern times. It is important that we ensure those accused of such offences can also have their rights protected, alongside a fair hearing.

The Protection of Children Act 1978 makes it an offence for a person to:

• Take, permit to be taken or to make any indecent photographs or pseudo photographs
• To distribute or show such indecent photographs or pseudo photographs
• To possess such indecent photographs or pseudo photographs with a view to their being distributed or shown by himself or others
• To publish or cause to be published any advertisement likely to be understood conveying that the advertiser distributes or shows such indecent photographs or pseudo photographs
• The act of downloading an image amounts to “making” the image.  So this offence is often charged in relation to images which have since been deleted.

The Criminal Justice Act 1988 makes it an offence for a person to possess any indecent images of a child.

Any offences committed under section 160 of the Criminal Justice Act 1988 are either way offences. This means that they can be dealt with in either the magistrates’ court or the crown court depending on the level of seriousness.  If dealt with in the magistrates’ court, a maximum term of 6 months’ imprisonment can be imposed and/or a fine.  Alternatively, if dealt with in the crown court a maximum term of 5 years’ imprisonment can be imposed for offences committed under section 160 of the CJA 1988.

Old Bailey Solicitors’ recent sentences involving Indecent Images

R v C – Kingston Crown Court

Possession Cat A images – 10 months’ suspended for 18 months’.  100 hours’ unpaid work, iHorizon programme, 30 days Rehabilitation Activity Requirement

R v F – Lewes Crown Court 

Possession Cat A images – Community Order 18 months.  200 hours’ unpaid work, 30 days Rehabilitation Activity Requirement

R v L – Reading Crown Court 

Possession Cat A images – 20 months’ suspended for 2 years.  40 days Rehabilitation Activity Requirement

R v P – Ipswich Crown Court 

Possession Cat A images – 8 months’ suspended for 20 months.  30 days Rehabilitation Activity Requirement

We have also successfully negotiated Police Cautions for some clients in cases involving very few numbers of images and we have managed to persuade the police / CPS to discontinue other cases where images had been received via social media but had not been requested by our client.

Old Bailey Solicitors is regulated by the Solicitors Regulation Authority.  The Sentencing Council has more information for further reading here.