The Main Offences – the Making, Possession & Distribution of Indecent Images

When trying to understand the law on indecent images, three primary offenses exist: Making, Possession, and Distribution

The Making of Indecent Images Offence

The most commonly charged offence is that of “making” indecent images, by Section 1(1)(a) of the Protection of Children Act 1978.

The legal definition of “making” in this context is somewhat different from the ordinary English language meaning of the word. In legal terms the act of "making" an indecent image was defined in R v Bowden [2000] 1 Cr.App R.438 when the law was updated to combat the proliferation of illegal images on the Internet. “Making” encompasses actions that result in the creation or production of illegal images.

Activities that fall under the "making" offense include:

• Opening an email attachment containing an indecent image. This is also potentially an offence as defined in the case of Smith and Jayson [2003]. To establish guilt the user need not intend to save the image but must have acted deliberately and intentionally when making the image.

• Downloading an indecent image onto a disc or printing it. The same test as above would apply.

• Storing an image in a computer folder. This conduct must also be proved to be deliberate and intentional.

• Accessing pop-up messages containing indecent images on a website. This will constitute ‘making’ as per the decision in R v Harrison [2008] 1 Cr App R.29. The conduct musty be shown to be deliberate and intentional.

• Cached Images on Web Pages. Furthermore, the making offense can occur when an individual views an illegal image on a website. Evidence of the making offense may be found in the automatic cached image stored by the computer when viewing an image on a webpage.
  

The Possession of An Indecent Image Offence

Possessing an illegal image is an offence under Section 160 of the Criminal Justice Act 1988. To be considered in possession of an image, it must be demonstrated that the user has the capability to retrieve it, even electronically. For instance, if images are deleted, a user may have a defence if they can prove they lacked the technical knowledge to retrieve them. See our FAQ’s on Deleted Images.

The Distribution of Indecent Images Offence

Distributing an illegal image is also an offence, as per Section 1 of the Protection of Children Act 1978. This offence is more serious than the making and possession offenses and carries harsher penalties upon conviction, including a higher starting point and category range. See our FAQs and Sentencing and Category A, B and C Illegal Images Explained

Defences

See our FAQs on Can I Defend Indecent Images Charges?

Sentencing

The Sentencing Guidelines Council has formulated sentencing guidelines for the making, possession, and distribution offenses. These guidelines take into account the specific offence and the categorisation of the images involved. Further information on categorisation and grading can be found in our FAQs on Sentencing and Category A, B and C Illegal Images Explained

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.

Enquiries from friends and family

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.