The law has provisions in place in respect of indecent sexual images of anyone less than 18 years of age. These images are generally accessed via the internet with this type of crime seen through the criminal courts on a regular basis.
We have represented clients at police interviews in respect of this crime. I have first-hand experience in a range of cases from a small number of images recovered from a device to the most serious of circumstances with thousands of images recovered.
The process we see happening with this type of crime forms a similar pattern whereby usually a suspects home/business premises would be searched following on from a search warrant issued by the court based on intelligence put before them by the investigating officer.
The police would then, in turn, execute this warrant at the suspect’s known addresses on the warrant and seize all electronic devices capable of storing data linked to the IP address. The police usually conduct an initial triage test to ascertain whether such content is likely to be recovered from any such device.
The suspect at this point would be either taken into police custody following on from an arrest or be invited in for an out of custody voluntary/caution plus 3 interview at a later stage. Some officers may decide there is no point in interviewing a suspect prior to the devices being examined. They then may have the information to discuss with a suspect in an interview.
In the initial police interview, the police would ask basic lifestyle questions with no actual fact-findings to put to the suspect due to pending examination of the device(s). The suspect is then either released on bail for an initial 28-day period with certain conditions or released pending further investigation.
It is usual for there to then be a break for a significant period of time and sometimes up to 12 months whilst the devices are examined at the laboratory before any images recovered are graded into categories. From the examination, experts can establish search engine information and log in details for a device.
Following on from this process, the police would generally look to re-interview the suspect to put their findings to them, giving them the last opportunity to comment before they approach the crown prosecution service for charging advice.
There are three main categories for indecent image offences: –
Category A – Explicit images involving penetration, or sexual activity with an animal or sadism.
Category B – Explicit images that are non-penetrative sexual activity.
Category C – Explicit images that involve erotic posing.
The Protection of Children Act 1978 and the Criminal Justice Act 1988 states that indecent images offences are being committed if a person takes, makes, possess or distributes sexual images of a child under the age of 18. ‘Making of an Indecent Image’ is broad in that it can cover different things as listed below in causing an image to exist.
The opening of an attachment containing images
Downloading an image from a website to an electronic device
Storing an image on a directory of a computer
Accessing a website in which images appear as part of a pop-up tool
‘Possession of an Indecent Image’ means that the image must be under the control of the accused. The accused must have known that they were in possession of such images on the relevant devices in question. ‘Distribution’ of an image has the meaning of an image being exposed or offered to another person for acquisition.
There are common defences relied upon in respect of these offences, such as legitimate reason in accessing material for the purpose of academic research. A suspect may also have a lack of awareness and had not personally seen the indecent photograph, and neither did they had any reason to suspect that it be indecent. It is also a defence if the suspect was sent the image without request, perhaps via email, text or WhatsApp message. However, it is important that the image is permanently deleted as quickly as possible.
Sexting is an increasingly common issue with school-age children, with persons under 18 sending sexual photos to each other. The person sending the image of themselves is technically guilty of distributing the indecent image, and the recipient is guilty of making or possessing the indecent image. They can then be guilty of distribution if they then forward the image to others.
These are serious offences that often result in a prison sentence and an offender being placed on the sexual offender’s register. Needless to say, this can have a very serious effect on the rest of the offender’s life.
The CPS has been instructed by the government to prosecute all such offences placing them before the court. If the offences are provable, warning/cautions are rare.
If you find yourself either invited in for a voluntary/caution plus 3 police interview or currently under investigation, please contact one of our specialist sexual offences lawyers on hand 24/7 to assist on 0800 2335822.