Indecent Images Law and Technology: Is Reform Needed? | BSQ

Indecent Images Law – Has the Law Kept Up With Technology?

The law relating to indecent images of children is notoriously difficult to understand.

Part of the problem is that the main offences are spread across two pieces of legislation. The Protection of Children Act 1978 deals with offences including taking, making and distributing indecent images, while section 160 of the Criminal Justice Act 1988 creates the separate offence of possession.

Both Acts were enacted before the modern internet, smartphones, cloud storage, streaming and artificial intelligence.

Over time, Parliament and the courts have repeatedly adapted the law to try to keep pace with technological change. The result, however, is a legal framework which can be difficult for practitioners and particularly difficult for members of the public to understand.

A recent article by Professor Alisdair Gillespie, The conflation of images and the problem of making, published in the Criminal Law Review, argues that the law is now overdue for more fundamental reform.

His central suggestion is a simple one: the law should focus less on the technical operation of computers and more on what a person has actually done.

What does “making” an indecent image actually mean?

Perhaps the clearest example of the problem is the offence of making an indecent image.

In ordinary English, most people would understand “making” an image to mean creating it, for example by taking the original photograph.

That is not what “making” necessarily means in law.

In R v Bowden, downloading an already existing indecent image from the internet was held to amount to “making” it. The reasoning was that downloading caused a new digital file containing the photograph to come into existence on the defendant’s computer.

The courts subsequently extended that reasoning to online viewing. If opening or viewing an image caused a temporary copy to be created in a computer’s cache, that could also amount to “making”.

This creates an obvious linguistic problem.

A defendant may be accused of “making” hundreds or thousands of images even though they did not create any of the original photographs. What they are actually alleged to have done is viewed or downloaded copies of images which already existed.

The legal meaning of “making” has therefore moved some distance from the ordinary meaning of the word.

Has the law become too focused on technology?

The difficulty goes beyond terminology.

The present law can require investigators and courts to concentrate on highly technical questions about what happened inside a computer.

Was a new file created when an image was opened? Was a copy stored in a browser cache? Was an image downloaded to a hard drive? Was it accessible through cloud storage? Could a deleted image still be recovered using forensic software?

These questions can determine whether conduct amounts to “making” or “possession”, even though they may say relatively little about what the defendant actually did.

Gillespie argues that the law has increasingly concentrated on the technicalities of file creation and storage rather than the underlying behaviour.

Technology has meanwhile moved on again. Material may now be streamed without being deliberately downloaded, and files may be stored remotely in the cloud rather than on a particular device.

Trying to fit modern behaviour into concepts such as “making” and “possession”, developed in an earlier technological era, can therefore become artificial.

Could the law be simplified?

Gillespie proposes a much simpler structure based on three forms of conduct:

Accessing – intentionally viewing, obtaining or storing illegal material, whether by downloading, streaming, cloud access or another method.

Distribution – sending material to others or knowingly making it available for others to access.

Production – creating the original image, including taking a photograph or producing a new manipulated or computer-generated image.

The attraction of this approach is that it focuses on behaviour rather than computer processes.

Downloading an existing image would therefore be accessing it rather than “making” it. Creating the original image would be production. Sending it to another person or making it available to others would be distribution.

These descriptions are much closer to the ordinary meaning of the words.

The Sentencing Guidelines already take a similar approach

There is an important additional argument in favour of this proposal.

It broadly reflects the approach which the Sentencing Council already adopts.

The current sentencing guidelines distinguish between possession, distribution and production. Crucially, it recognises that conduct which technically amounts to “making” because an image has been downloaded should not be treated as production.

The guideline states that production involves taking or making an image at source, while making an image simply by downloading it should be treated as possession for sentencing purposes.

This creates a striking mismatch in the present law.

A defendant may technically be convicted of making an indecent image because downloading created a new computer file. Yet when sentence is imposed, the court is directed to treat that same conduct as possession rather than production.

The sentencing regime therefore already recognises something which the substantive criminal law obscures: obtaining a copy of an existing image is fundamentally different from creating the original image.

Gillespie’s proposed structure would bring the offences much more closely into line with that approach.

A further anomaly: different defences

Reform could also address another anomaly in the present law.

The possession offence under section 160 of the Criminal Justice Act 1988 contains statutory defences which are not available in the same form to a defendant charged with “making” under the Protection of Children Act 1978. Gillespie points out that this can produce unfairness where essentially the same conduct could be characterised either as possession or, because a digital file has been created, as making.

This is important because the problem is not merely semantic. The distinction can have a substantive effect on the legal protections available to a defendant, even where the underlying conduct is essentially the same.

If a new offence of accessing were introduced to replace or absorb much of the present distinction between possession and downloading, there is a strong argument that it should retain the statutory protections currently available for the possession offence.

That would avoid a situation in which the availability of a defence depends on the technical way in which a computer happened to create or store a file, rather than on the substance of the defendant’s conduct.

The precise formulation of any new offence, and the defences that should accompany it, would require careful consideration. A wider review by the Law Commission would therefore be desirable before any wholesale reform of this area.

Is it time to reform indecent images law?

The original purpose of the Protection of Children Act 1978 was straightforward: to prevent the sexual exploitation of children.

Gillespie argues that, as technology developed, the law became increasingly concerned with computers, digital files and the technical process by which images are created, stored and retrieved.

The legislation has also developed piecemeal. The 1978 Act has been repeatedly amended, while possession remains separately criminalised under the Criminal Justice Act 1988. There has never been a comprehensive reconsideration of how the whole framework should operate in the modern digital age.

There is considerable force in the argument that such a review is now overdue.

A framework based around accessing, distribution and production would be easier for defendants, practitioners and courts to understand. It would correspond more closely with the existing sentencing approach and could also remove some of the present inconsistencies between offences and the statutory defences available to them.

That matters because the current complexity is not simply a question of language. It can affect the legal protections available to a defendant depending on how the same underlying conduct is charged.

Most importantly, reform would reduce the need to decide criminal liability by examining the technical operation of a particular computer or device.

Technology will continue to change. Streaming, cloud computing and artificial intelligence are unlikely to be the last developments which the courts have to confront.

A law which focuses on what a person does with an image, rather than precisely how their device processes the underlying digital file, may be much better equipped to keep pace.

Specialist advice on indecent images investigations

Berkeley Square Solicitors regularly represents clients in investigations and prosecutions involving indecent images, including cases raising complicated questions about downloading, possession, deleted material and digital forensic evidence.

For more information, see our indecent images defence solicitors page and our guide to the main offences of making, possession and distribution.

If you require confidential advice about an indecent images investigation or prosecution, please contact our London office on 020 3858 0851.

About the authors:

Roger Sahota

Partner, BSQ

Patrick O’Hanlon

Senior Solicitor, BSQ