What Does a Custodial Sentence Mean?
by Kelsey Reid | Court Sentencing
Old Bailey Solicitors
Understanding Indecent Images: Laws, Offences & Defences
What are indecent images ?
The word ‘indecent’ is not defined in legislation. An indecent image refers to an image of a child (under 18) which is sexual in nature and may include images of nude or partially clothed children, or children posing in a sexual manner. Indecent images can also involve animals. While indecent photographs can be in physical or digital possession, they are often accessed online. Law enforcement teams and specialist police units are internationally using technology to identify people who are making, distributing and accessing indecent images of children on the internet.
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.‘
Indecent images offences can be extremely serious. Even if you’ve accidentally accessed indecent images of children, you may still be guilty of an indecent images offence, so we are here to offer support and advice at what is a stressful time. Old Bailey Solicitors is a team of expert defence solicitors specialising in possession of indecent images and distributing indecent images, and indecent images offences overall.
What is a Pseudo-Photograph?
A pseudo photo is an indecent image which has been made by computer-graphics software or otherwise and has the appearance of a photograph. A pseudo photo of a child would be anything that has been produced and depicts a child who is posed or pictured indecently, for example, in a sexual way. This can also include pseudo photographs which depict an adult involved in an indecent act with a child or animal, or are involved in an indecent act with a child present.
Indecent Image Laws in the UK
There are 3 broad types of offending in relation to indecent images:
Possession of indecent images refers to being in physical or digital possession or control of indecent images. The images are most commonly stored on a device (often referred to as “making” due to the image being reproduced every time it is downloaded). To be guilty of possession of indecent images offences, it is not necessary to have physically or intentionally saved an indecent image to your computer or electronic device; the mere fact that it has been accessed may be sufficient for the prosecution to prove the offence, even if the image is no longer accessible to the user.
Distribution of indecent images refers to the sending or forwarding on of indecent images in your possession. It includes showing, or offering indecent images 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 indecent photograph).
What must the Crown Prosecution Service prove?
The law on indecent image offences is set out at Section 1 of the Protection of Children Act 1978 and Section 160 of the Criminal Justice Act 1988.
The Crown Prosecution Service must prove the following elements of an offence involving indecent images:
- You deliberately and/or knowingly either made (to include downloading on a computer), took, or permitted to be taken, distributed or showed indecent photographs or pseudo-photographs, or possessed them with a view to their being distributed or shown, published or caused to be published an advertisement for indecent photographs.
- The photograph or pseudo-photograph was indecent. Whether any photograph of a child is indecent is for the jury or magistrate or District Judge to decide based on what is the recognised standard of propriety. The circumstances and motive of the defendant are not relevant to the question of indecency.
- The photograph or pseudo-photograph was of a “child”. A child is a person under the age of 18 years. The age of a child shown in a photograph is ultimately for the jury to decide.
In order to prove that a person is guilty of this offence the prosecution must prove all of these “elements” of the offence to the requisite standard – this is “beyond reasonable doubt”, or so the jury are “sure”.
Categorisation of Indecent Images
How indecent images are categorised depends on a number of factors.
Category A images
Images classed in this category depict gross assault, sadism or bestiality – obscene images involving penetrative sexual activity. This category represents the most serious offences involving illegal images and extends to all images and indecent photographs that portray a child subjected to pain.
Category B images
Non-penetrative sexual activity is classed within category B images.
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.
Category C images
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 Indecent Images
Indecent images sentencing guidelines relate to the different categories into which indecent images fall; these determine the appropriate sentence.
Sentencing Guidelines for Category A Images
Possession (including “making” or reproduction of indecent images) has a starting point of a one year custodial sentence, with a rnage of up to 3 years imprisonment. The starting point for distributing category A images is a prison sentence of 3 years, and the starting point for production of category A images is 6 years in custody. The sentencing for these types of offences will vary depending upon the aggravating factors and mitigating factors the court identifies.
Aggravating factors include:
- Relevant previous convictions
- Offending behaviour – including offences committed while on bail.
- Deliberate or systematic searching for indecent photographs portraying young children
- Attempts to dispose of or conceal evidence
- Age and vulnerability of the child depicted
Mitigating factors include:
- Personal circumstances such as age and lack of maturity
- Mental disorder or learning disability
- Demonstration of steps taken to address offending behaviour
Sentencing Guidelines for Category B Images
If you’ve been charged with possession of category B images this offence often carries a starting point of 26 weeks’ custody. Sentences for category B Distribution offences have a starting point of one year and production offences carry a 2 year starting point, with a range up to 4 years’.
Sentencing Guidelines for Category C Images
Possession of category C images offences can attract a community order by way of punishment, although there are situations that can result in a prison sentence of up to 6 months. Distribution or production of even category C images can result in an immediate custodial sentence.
Penalties:
If you have been arrested, charged or interviewed by the police in relation to making, distributing or possessing 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.
Defences for Possessing or Making Indecent Images
There are 2 statutory defences to offences relating to indecent images:
- Legitimate reason – requires the individual to provide a legitimate reason for being in possession of indecent images offences
- Lack of awareness – the individual accused would have to prove they had not seen the images and they had no reason to assume they were indecent. This defence may apply if the images were ‘made’ inadvertently on the device on which they were found, or were accessed by another user of the device
What do I do if I have been Arrested for Indecent Images?
Indecent images allegations can have a devastating effect on the lives of anybody who is involved, and so seeking specialist legal advice is vital. Old Bailey Solicitors is a team of expert defence solicitors specialising in indecent image cases, possession and distributing indecent images, and indecent images offences overall.
Not only will we provide you with access to the most current laws and defence strategies, but you will be given supportive guidance to get you through this challenging time in your life. You’ll be supported throughout the entire process and a competent lawyer who specialises in indecent image offences will ensure that you get the best possible outcome.
What do I do if I have been accused of a Sexual Offence?Read more
Sexual offence cases are more emotive and personal than any other type of allegation. We promise to handle your case sensitively, confidentially and pro-actively. We will never pre-judge you and we will assess the case against you, help you to gather the evidence to support your case and provide you with clear and honest advice. Old Bailey Solicitors have significant experience in successfully defending allegations of sexual offences and will fight your corner from the very first stages of the investigation.
Some cases will involve a simple factual dispute whilst others will require expert evidence: whether computer evidence in an internet pornography case, psychological evidence in an allegation of childhood abuse, or straightforward forensic evidence in a stranger rape case. We will look to challenge the prosecution case in accordance with your instructions.
Old Bailey Solicitors have enjoyed notable successes on behalf of clients facing serious sexual allegations in recent years. Rod Hayler has saved many of his clients from prison where lengthy sentences seemed inevitable. We have also enjoyed a significant run of acquittals on behalf of clients falsely accused of rape or other sexual assaults. As one of our specialist, in-house trial advocates, Brian Aldred has secured against-the-odds acquittals in a number of difficult and tense rape cases.
We know that a conviction for a sexual offence can have life-changing consequences for our clients and that even the most minor of allegations can result in stigma or a client being forced from their home. Social Services may become involved in cases where children are at home and, if convicted, the Sex Offenders’ Register will become relevant, sometimes for life. Also, the court will consider imposing a Sexual Harm Prevention Order (SHPO) which may have a dramatic impact on a client’s ability to access the internet and to associate with certain members of their family. At all stages, we look to safeguard your interests and to defend your case robustly.
Contact one of our specialist team by giving us a call or emailing [email protected].
What do I do if I have been accused of Rape?Read more
At Old Bailey Solicitors we understand that rape cases are very rarely straightforward. The vast majority of allegations are made by a complainant who is known to the accused. Many cases involve married couples or people in long-term relationships. Others involve people who have only just met or historic allegations of incidents years ago.
If you have been accused of rape, specialist legal advice is essential at an early stage in the case. Old Bailey Solicitors will not shy away from asking difficult, and sometimes, uncomfortable questions. We know that it is your life and future on the line and we will defend your case vigorously.
Your case will be handled by one of our senior lawyers and we will instruct a trial advocate with a proven track record of experience and success in cases of this nature. We understand that chances cannot be taken when you’re facing this kind of allegation which is why we aim to get it right the first time.
For specialist advice and assistance about allegations of rape, without delay, email us at [email protected].
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