Indecent images of children
Since the arrival of the internet, the appearance of websites containing illegal pornography has served to both corrupt people who otherwise would never have even thought about such material, and also led to suspicion falling on innocent computer users. Either way, the fact that this material is now so freely available, with governments apparently unable to stop its distribution at source, is something that brings people to the criminal courts who would never expect to be there.
Allegations involving indecent images can be particularly distressing. People who are accused can face social services involvement, impacting access to their own children, and the stigma of being accused of a criminal offence, often for the first time, can itself be a massive shock. We understand the trauma this can cause, and our specialist criminal solicitors take a non-judgmental approach to helping our clients achieve the best possible result.
We have included a guide to the common issues in this type of case below, and a case study of a recent case where we successfully represented our client. If you or a family member are worried about an investigation or prosecution for indecent images or pornography charges, contact us.
Our solicitors’ case studies
Any lawyer can claim to have expertise in different types of criminal case. We have included here some case studies to give some idea of how we prepare our cases.
Case study 1
Our client was an industry consultant on IT, who was also a published academic. He was charged with four counts of possession and making indecent images, in this case child and extreme pornography. The images were largely in temporary internet folders on his computer, or on a part of his hard disk where remnants of deleted files were stored. While he had accepted in interview that he had viewed legal pornography on his computer, he denied ever viewing any child pornography.
The prosecution served a brief forensic report and schedules containing all of the relevant technical data recovered from the computers. We instructed a specialist forensic expert on our client’s behalf, asking him to provide an analysis of the images retrieved. Our expert was able to determine that there was no evidence that these images had been at any time actually viewed or retrieved by our client.
A war of forensic expert reports with the prosecution then followed, this lasting several months. Our client retained a specialist QC barrister who was recommended by us for the trial itself. The prosecution opened its case but on the second day of the trial threw in the towel, and the judge directed a verdict of not guilty. The client was able to apply for his defence costs to be repaid.
So what are ‘indecent’ images?
‘Indecent images’ is a legal term which actually includes indecent video files, copies of photographs or video files, and computer data capable of conversion into a photo or video file.
The test for indecency is something a jury decide based on the recognised standard of what is acceptable.
In a child pornography case, a person in an indecent image is considered to be a child if he or she is less than 18 years old.
Making indecent images
The law on so called ‘making of indecent images’ is contained in the Protection of Children Act 1978.
This makes it an offence to take, be allow to be taken, or to otherwise make indecent photographs or pseudo-photograph. A pseudo photograph is an image which looks like a photograph but was not made using a camera.
‘Making’ an image includes downloading an image from a webpage to a computer screen.
It is also an offence to distribute or show such images.
Possession of images with a view to later distributing or showing them is also covered by the legislation.
It is also illegal to advertise to others about the distribution or making of images.
To secure a conviction against a person, the prosecution has to prove to the jury that the possession or making of the images was deliberate and knowing. This means that accidental downloading where the person did not know they had been downloaded may not be an offence.
The prosecution also has to prove that the image was an image of a child, and ‘indecent’.
The word ‘making’ in this area of law can be somewhat confusing. The courts actually regard the act of voluntarily downloading an indecent image from a web page on to a computer screen as ‘making’ an image.
Defences to indecent images allegations
The main defence for someone who has in their possession or shows indecent images is that there was a legitimate reason for the possession. ‘Legitimate reasons’ include when the possession include for the purposes of law enforcement, or in the context of criminal legal proceedings.
Another defence is available where the person has not seen the images in question. This may be relevant where the images appear in a computer cache among many legal images, and could have been downloaded without appearing on a computer screen. If the defendant did not have cause or suspicion that the images were indecent, there may also be a defence.
If the image was of the partner or spouse of the person accused and over the age of 16, the person in possession of it has a defence.
If the image was sent to the defendant without having been requested, and not kept for ‘an unreasonable time’, he or she may have a defence. This typically might mean somebody who is sent an image by somebody he or she knows maliciously or as a practical joke, and deletes it pretty much immediately.
Indecent images cases can be dealt with in either the Magistrates or the Crown Court. However, it is unlikely unless the number of images is very small and they are a low level of seriousness that magistrates would consent to the case being heard in the lower court.
Every indecent images case is of course different. That said, there are some basic procedures which a competent defence lawyer will take in the preparation of the case, which are necessary most of the time.
In the majority of cases the defence solicitor should arrange to view the relevant images with the client. This is necessary to assess the likely age of the subject of the images and to assess the category of the images.
When investigating the category, description, and origin of the images, the defence team should make a particular note of the following:
- The content of the images
- All relevant technical data relating to each file
- Whether any production company logos or watermarks are visible, which may indicate that the pornography is in fact legal
- Whether any of the images are duplicates
In cases where the possession of the images is denied by the client, the legal team should look immediately at instructing a forensic computer expert. The standard of such experts varies widely, and care should be taken to find an expert with advanced knowledge and experience of this area.
The things that an expert should be asked include questions as to evidence of identity of the user who viewed images, evidence of whether active searches were done for the images, whether the images can be proved to have been viewed, and whether there has been any deliberate editing or saving of the images, or whether images are stored as a result of automated processes. The issue of remote access of a computer by a third party should also be considered. The location of images, for example in a temporary internet file folder, may also be relevant if it shows that an item was not easily retrievable to the user.
Using a specialist lawyer
It is no secret that law is a profession which is slow to catch up to changes in technology. To suggest that there is a 20 year delay in adopting new technologies is probably not unfair. In this context, easily finding a lawyer with specific understanding in the law and technology relevant in images cases is not a foregone conclusion. Both the solicitor and the advocate should be aware the technical forensic areas mentioned above, but also be reluctant to just accept what the prosecution says about the strength of the case without doing their own investigations. Proactively defending, rather than simply going with the prosecution, is the way these cases should be prepared.
Sentences for indecent images cases
Of course, in many cases, the client will have to plead guilty. This may be the case if admissions have been already made in the police station interview, for example if the client declined to have a solicitor present.
The sentencing will be based broadly on two areas, these being number of images and the category of the images. Until recently these were graded as levels 1-5 (1 being the least serious, and 5 being the most serious). A simpler system now exists, using category A, B and C, A being the most serious.
- Category A images include penetrative sexual activity, possession of images involving sexual activity with an animal, or sadism.
- Category B images are of non-penetrative sexual activity.
- Category C images are ones involving erotic posing.
The more level A and B images are present, the greater the chance on conviction of a custodial sentence.
The main source for information on sentencing is the Sexual Offences Definitive Guideline, released in 2013, which gives guidance on sentencing for every type of sexual offence.
In cases where possession, making or distributing indecent images is alleged, it is important to retain specialist advice as early as possible. If you or a family member are worried about an investigation or prosecution for indecent images please contact us.