Sentencing and Category A, B and C Illegal Images Explained 

Sentencing in Indecent Images Cases

The “Making” Offence contrary to Section 1(1)(a) of the Protection of Children Act 1978 carries a maximum sentence of 10 years imprisonment if tried on indictment, six months imprisonment and /or a fine if dealt with Magistrates Court.

The “Possession” offence contrary to Section 160 of the Criminal Justice Act 1988 has a lower maximum penalty of five years imprisonment if tried on indictment and the same maximum penalties as per the making offence if tried in the Magistrates Court.

Generally speaking, maximum sentences are very rarely applied in indecent images cases. If you want advice in this area you should speak to a lawyer and obtain specific advice based on the circumstances on your case.

The Sentencing Guidelines

The Sentencing Guidelines Council has established three different levels of offence with increasing seriousness for sentencing purposes in cases involving indecent images of children. These guidelines were revised on April 1, 2014, and replaced the previous scheme defined by the Sentencing Advisory Panel.

The Old Guidelines

Prior to April 1, 2014, the Sentencing Advisory Panel had identified five levels of seriousness for sentencing in indecent images cases, as follows:

1. Level 1: Images depicting erotic posing with no sexual activity.

2. Level 2: Non-penetrative sexual activity between children or solo masturbation by a child.

3. Level 3: Non-penetrative sexual activity between adults and children.

4. Level 4: Penetrative sexual activity involving a child or children or both children and adults.

5. Level 5: Sadism or penetration of, or by, an animal.
   

It is important to note that these previous guidelines are no longer in effect and have been replaced by the scheme outlined in the current Sexual Offences Definitive Guidelines. These new guidelines are applied to all illegal images.

The New Guidelines

These guidelines apply to the making and possession offences.

• Category A: Possession of images involving penetrative sexual activity and 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  
  

Under the new Definitive Guidelines, Category A is consistent with previous Sentencing Advisory Panel (SAP) levels 4 & 5, Category B is equivalent to SAP levels 2 & 3 and Category C is the same as SAP level 1.

How the Guidelines Are Used in Court

The sentencing guidelines specify starting points, sentencing ranges, and aggravating and mitigating factors for each of these categories. Due to the complexity of how these guidelines and categories are applied, BSQ advises individuals to seek legal advice on how they may apply to their specific cases.

Straying Outside the Guidelines

The Court of Appeal emphasised in the case of R v Pinkerton that the guidelines established by the Sentencing Guidelines Council (SGC) resulted from thorough research and consultation. Straying beyond these categories could lead to inconsistency and subjectivity.

Erroneous Categorisation

It is not uncommon for the Prosecution’s experts in indecent images cases to make errors in their categorisation of indecent images – see our FAQ’s on Understanding the Child Abuse Image Database (CAID) and Grading and the case of J in our FAQ BSQ Case Studies.

How BSQ Can Help

The law and procedures in indecent images cases is far from straightforward. Most of our clients - who are mainly working professionals but can be drawn from every walk of life - find themselves in a situation they never imagined. Seeking guidance and legal advice from an experienced professional who specializes in indecent images cases becomes critical.

At BSQ, we provide an initial post-police interview consultation to our clients. During this consultation, we outline the following:

• What to expect in the upcoming legal process.

• Potential defences and alternatives to prosecution.

• Worst-case scenarios and possible outcomes.

Our goal is to ensure that our clients have a clear understanding of their situation and the legal options available to them.

If you are worried about your partner or a close friend or family member who has recently been arrested in an indecent images investigation, we would be happy to speak to you. As long as certain rules are complied with, we are permitted to taking instructions from third parties. 

You can find more information about our indecent images solicitors defence services, see our practice page.

 If you are accused of an indecent images offence and require legal representation, please contact our London offices on 020 3858 0851.