BSQ Briefing – Sexting, Children and the Law

In January 2016 the Home Office introduced a new type of disposal for cases where young people were accused of sexting i.e. distributing sexual imagery by social media or some other form of electronic communication. This article examines how the new disposal - known as outcome 21 has worked in practice - and what the law holds for young people who engage in sexting.

Distributing indecent images by sexting, even when the offences are carried out by a child under the age of 16 is a criminal offence. Strictly enforced, the law criminalises this type of behaviour even where it concerns teenagers sharing sexual images. Possession of these images is also an offence.

Sexting offences in general are on the increase – according to data released this week 6238 sexting offences were registered by the police in England and Wales during 2016-7, a 30% increase on the previous year.

The Home Office took the decision to introduce a new outcome code for sexting offences in response to a number of high profile prosecutions which resulted in criminal cautions or convictions for children as young as 14.   There was widespread criticism of the criminalisation of young people who share sexual images often as the result of curiosity and exploration. It was felt that laws that were introduced to protect children were instead unnecessarily stigmatising them, leaving many with a criminal record that often had a profound impact on their future career and employment prospects.

The new outcome code– known as Outcome 21 -  allows the police to take no further action in the public interest in a sexting case even where there is sufficient evidence to justify a prosecution.  It therefore allows for young people who engage in sexting to be diverted away from prosecution.  It also introduces safeguards which means that a police investigation into sexting should not show up on their criminal record in later life.

Outcome 21 stipulates that “further investigation, resulting from the crime report, which could produce evidence sufficient to support formal action being taken against the suspect is not in the public interest. This is a police decision.”

According to the police and Home Office guidance, outcome 21 disposals will only be used however in cases where there is no evidence of exploitation or malicious intent.

Where outcome 21 is deployed, any record of a police investigation should not show up on a young person’s DBS check in future years, even on an enhanced DBS check, although this will be subject to a risk assessment.  It should not feature in a standard DCS check.

The outcome 21 disposal also means that young people investigated for sexting offences will no longer have to sign on the sex offenders register. Previously anyone cautioned or convicted for sexting had to sign on the register.

Outcome 21 has been broadly welcomed by the police and children’s agencies and charities and has been widely used since it was implemented. More than 2000 such disposals have been registered since January 2016, according to data released earlier this week. The number of children facing sexting charges has also dropped dramatically since outcome 21 was introduced– the number of prosecutions of children in these cases has halved in the same period.

But, these figures must be seen against a more worrying trend that suggests that the number of cases involving children sexting has more than doubled in the past two years.

Against this background, Parents and young people involved in a sexting investigation should seek specialist legal advice.  In cases where sexting involving young people is alleged schools and colleges should also seek guidance on whether they can best protect children without notifying the police and by responding to incidents informally.

Roger Sahota is an expert in advising individuals in indecent images investigations and prosecutions.  Contact our London offices if you require advice on this or any other criminal matter.