GQS Solicitors

Indecent Images

Making or Distribution of indecent images of children

This offence involves the accused to have deliberately made, taken or permitted to be taken, distributed or showed indecent images or pseudo photograph of children.

Section 1 of the Protection of Children Act 1978: it is an offence for a person –

  • to take, or permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or
  • to distribute or show such indecent photographs or pseudo-photographs; or
  • to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or
  • to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

An allegation under this section can be dealt with in the magistrates or crown court. Upon conviction, the maximum sentence for making is 10 years imprisonment (offences committed on/after 11/01/01). However, the sentencing guidance equates making to that of possession. Ergo, 5 years.

Contact us - If you are worried that you might be arrested, under suspicion or investigation, we are specialist sexual offence solicitors, advising on these cases day in day out.

Possession of indecent images of children

The most common offence is under section 160 of the Criminal Justice Act 1988 ( s62 Coroners And Justice Act 2009 – ‘creates’ ):

  • It is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.

Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove -

  • That he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
  • That he had not himself seen the photograph or pseudo-photograph and did not know, (nor had any cause to suspect), it to be indecent; or
  • That the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

An allegation under this section can be dealt with in the magistrates or most commonly in the crown court. Upon conviction, the maximum sentence is 5 years imprisonment (offences committed on/after 11/01/01).

Pseudo-photographs are defined as ‘an image, whether made by computer graphics or otherwise, which appears to be a photograph'. These are treated the same as an actual photograph Section 160 of the Criminal Justice Act 1988 extended the offence to pseudo-photographs. Common names are: 

  • Cartoon
  • Manga
  • Anime

Anxious about what you have seen? Contact us.

In order to be considered as a prohibited image, it has to be the following:

It is pornographic i.e: for the sole purpose of sexual arousal. It must be obscene, grossly offensive or disgusting.

The image focuses on the child’s anal or genital zones. It must portray any of the following:

  • Sexual intercourse (including oral) with or in the presence of a child.
  • Masturbation involving or in the presence of a child.
  • Penetration of the child’s vagina or anus.
  • Penetration of a person’s anus or vagina in the presence of a child.
  • Child on animal sex, even if the animal is dead, alive or just imaginary.
  • Performance of sex on an animal, whether dead, alive or imaginary, in the presence of a child.

In cases of publication or distribution, there may be the extremely rare offences under the Obscene Publications Act 1959. Excluded are works classified by the British Board of Film Classification (BBFC).

Possible defences for possession of indecent images

There is a legitimate reason for being in possession of the image.

The computer / device in question was used by more than one person. The images were not viewed and their presence was unknown.

Temporary. Although viewed, the image(s) were sent via an unrequested email attachment and once discovered were not contained for an unreasonable time (e.g. found and deleted).

Pop-ups. When searching for adult pornography a pop-up emerges. Such pop-up images can then be stored on the computer as a temporary internet file. Probably legitimate but strictly limited reason for possessing the images in question. Often issues relating to allocated and non-allocated files.

The person has not seen the image and did not know or have cause to suspect they were prohibited images.

There are often several avenues to explore in relation to possible defences or mitigating factors for being found in possession of indecent images. We can instruct our own computer expert to examine and report on the police / prosecution expert’s findings. This often has an effect and we have successfully defended in crown court trials when disputing the prosecution case. Also, there are beneficial actions we can take on behalf of clients.

Categorisation of indecent images

Historically known in the profession as the ‘Oliver Scale’ after the 2002 case of ‘Oliver’ and based on the originally therapeutic ‘Copine Scale’ from Eire. Images were graded on the following basis:

  • Level one: Images of erotic posing, with no sexual activity;
  • Level two: Non-penetrative sexual activities between children, or solo masturbation by a child;
  • Level three: Non-penetrative sexual activity between adults and children;
  • Level four: Penetrative sexual activity involving a child or children, or both children and adults;
  • Level five: Sadism or involving the penetration of, or by, an animal.

However, the above grades have been altered to A, B & C:

Category A is the most serious and includes images showing penetrative sexual activity with a child. This includes vaginal, anal or fellatio. Also images depicting sadism or sexual activity with an animal.

Category B involves non-penetrative sexual activity.

Category C includes other indecent images of children, such as erotic depictions. In this context we have had discussions with experienced officers on the naturist, historical art and “innocent” family images. It seems that there is some difference of opinion in this regard and especially throughout the different police forces we deal with on behalf of clients in England & Wales.

Our Solicitors and Barristers can help

You are not alone, we can help. You may feel that you are spiralling downwards and that no one is available for you. That is not the case, we can make the difference.

Contact us as soon as possible for legal advice and assistance.

In your defence, it’s what we do.


 


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