Indecent Images Offences: Making, Possession and Distribution

Indecent Images Offences: Making, Possession and Distribution

Allegations involving indecent images can give rise to a number of different criminal offences. The most common are making indecent images, possession of indecent images and distribution of indecent images.

Although these terms may appear straightforward, their legal meaning is not always the same as their ordinary meaning. In particular, a person can in some circumstances be accused of “making” an indecent image without having taken or created the original photograph.

At Berkeley Square Solicitors, we regularly advise individuals under investigation for indecent image offences. Early specialist advice can be particularly important where the allegations concern downloaded material, deleted files, cached images, peer-to-peer software, messaging applications or unsolicited material.

What Does “Making” an Indecent Image Mean?

The offence of making an indecent photograph or pseudo-photograph of a child is contained in section 1 of the Protection of Children Act 1978.

In this context, “making” does not simply mean taking the original photograph. The courts have interpreted the concept more broadly in cases involving computers and the internet.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.

Depending on the circumstances, conduct capable of amounting to making an indecent image can include:

• deliberately downloading an indecent image;

• opening an email attachment containing an indecent image - 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;

• deliberately saving an image to a computer, phone or other device. This conduct must also be shown to be deliberate and intentional;

• printing an indecent image;

• deliberately accessing material which results in an image being created or stored on a device; and

• in some circumstances, viewing material which results in images being stored automatically in a browser cache.

• 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.

The distinction between deliberate conduct and the automatic operation of a computer can therefore be important.

Cached Images and Internet Browsing

When websites are viewed, a computer or other device may automatically store material in temporary files or a browser cache.Evidence of the making offence may be found in the automatic cached image stored by the computer when viewing an image on a webpage. Whether an offence has been committed will depend on the particular facts and, importantly, on what the user deliberately and intentionally did.

The existence of an image on a device therefore does not necessarily answer the question of how it came to be there. In an indecent images investigation, forensic evidence may therefore be important in establishing:

• whether an image was deliberately downloaded;

• whether it was generated automatically by browsing activity;

• whether it was ever opened or viewed;

• where it was stored;

• whether it was subsequently deleted; and

• whether the user knew that the image was present.

These issues can require careful consideration of the prosecution's digital forensic evidence.

What Is the Offence of Possessing Indecent Images?

Possession of an indecent photograph or pseudo-photograph of a child is an offence under Section 160 of the Criminal Justice Act 1988.

Possession generally requires more than simply establishing that an image existed somewhere on a device. Questions can arise as to whether the person knew about the image and whether they had sufficient control over it.

Deleted files can therefore be particularly important.

An image may still be recoverable by forensic software after a user believes it has been deleted. Whether that amounts to possession will depend upon the circumstances, including whether the person knew of the image and had the practical ability and knowledge required to retrieve or control it.

You can read more in our FAQ’s on Deleted Images.

What Is the Offence of Distributing Indecent Images?

Section 1 of the Protection of Children Act 1978 also creates offences relating to the distribution and showing of indecent photographs or pseudo-photographs.

Distribution can include sharing or sending images to another person. Depending on the evidence, allegations may arise from:

• messaging applications;

• social-media platforms;

• email;

• file-sharing networks;

• peer-to-peer or torrent software;

• cloud storage;

• chatrooms; or

• other online platforms.

A person may also face an allegation of possessing images with a view to distribution.

Distribution allegations are generally treated more seriously for sentencing purposes than simple possession. The offence 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

What Defences Are Available to Indecent Images Charges?

The available defence will depend on the offence charged and the factual circumstances.

Issues which may arise include:

• whether the defendant knew that the material was present;

• whether an image had been sent unsolicited;

• whether the defendant deliberately downloaded or opened the material;

• whether the prosecution can establish possession;

• whether deleted material was realistically accessible to the defendant;

• whether another person had access to the relevant device or account;

• whether the prosecution's forensic interpretation is reliable;

• whether the image falls within the relevant statutory definition; and

• whether a statutory defence applies.

The legislation itself provides specific statutory defences in certain circumstances, including where a person had a legitimate reason for possessing the material, did not know or have reason to suspect that the material was indecent, or received it unsolicited and did not retain it for an unreasonable period.

The precise defence available will depend upon the charge and evidence, and specialist advice should be obtained before any formal response is made. See our FAQs on Can I Defend Indecent Images Charges?

What Sentence Can Be Imposed?

The sentence depends on matters including:

• whether the case concerns possession, distribution or production;

• the category of the images;

• the number of images;

• whether moving images are involved;

• the period over which the offending occurred;

• whether material was shared with others;

• whether there were attempts to conceal or destroy evidence;

• the defendant's previous convictions;

• mitigation and personal circumstances; and

• any evidence of rehabilitation or treatment.

The maximum penalties differ according to the offence. Possession under section 160 of the Criminal Justice Act 1988 carries a lower maximum sentence than offences under section 1 of the Protection of Children Act 1978.

Because the sentencing exercise is highly fact-sensitive, the likely outcome cannot safely be assessed simply by counting images.

How Are Indecent Images Categorised?

For sentencing purposes, indecent images are generally divided into Categories A, B and C.

Broadly:

Category A includes images involving penetrative sexual activity, sexual activity with an animal or sadism.

Category B includes images involving non-penetrative sexual activity.

Category C comprises other indecent images which do not fall into Categories A or B.

The sentencing guideline also distinguishes between possession, distribution and production.

Importantly, the Sentencing Council states that simply downloading an image should generally be treated as possession rather than production for sentencing purposes, even though downloading may constitute “making” for the purpose of establishing the substantive offence.

The number and category of images are relevant, but they are not the only factors the court will consider.

Further information on categorisation and grading can be found in our FAQs on Sentencing and Category A, B and C Illegal Images Explained

Deleted Images and Digital Forensic Evidence

Digital forensic evidence often plays a central role in these investigations.

It is important to distinguish between:

• live files;

• deleted files;

• cached material;

• thumbnails;

• temporary internet files;

• material stored by applications;

• cloud-based material; and

• files generated automatically by software.

The prosecution's forensic report should be examined carefully rather than assuming that every recovered image was deliberately downloaded or knowingly possessed.

In appropriate cases, an independent defence expert may be required to examine the device or review the prosecution's forensic conclusions.

How BSQ Can Help

The law and procedure 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 specialises 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.

• in relation to digital forensic evidence;

• in relation to alternatives to prosecution.

• on representations seeking to avoid charge;

• following charge;

• on expert evidence;

• on plea and trial strategy

• Potential defences

• 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.
Indecent images investigations can be highly distressing and can have consequences extending far beyond the criminal proceedings.

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. 

Speak to an Indecent Images Solicitor

If you are under investigation or have been accused of an indecent images offence, early specialist advice may be important.

Berkeley Square Solicitors is a London criminal defence firm with extensive experience representing individuals in indecent images and other sexual offence investigations.

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.