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Criminal Defences

A Guide to Possession of Indecent Images Defences

Learn more about defences that can be used for the offence of Possession of Indecent Images

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Being charged with a crime is a stressful experience for anyone. But this is especially the case if you have been charged with the possession of indecent images of children. You are probably feeling extremely anxious and concerned and may be wondering what might happen at trial and whether you have any way to defend yourself. This article provides an overview of the offence of possession of indecent images of children. It looks at the type of evidence that the prosecution will gather in such cases, the maximum sentence that you could face if you are convicted, and the defences that may be available for this offence.

An overview of the offence of possession of indecent images of children

The offence of possession of indecent images of children relates to taking, distributing, showing, possessing, or publishing photographs or pseudo-photographs of children. Many actions are covered by this offence. The offence can involve allowing someone else to take an indecent image of a child, downloading indecent images, opening email attachments containing indecent images, viewing indecent images of children on a website, and even viewing indecent images on an advertising banner to another website. The law on this offence is set out at Section 1 of the Protection of Children Act 1978 and Section 160 of the Criminal Justice Act 1988.

In order to convict you, the prosecution will have to show that the image was:

  1. Indecent: Whether the image is indecent will be a matter for the jury to decide. However, the judge will need to direct them to make this judgment with reference to an objective test (this means asking what the reasonable person would consider to be indecent, not simply asking what their own opinions on the matter are). The age of the child in the image is a relevant consideration when looking at whether it is indecent.
  2. A photograph or a pseudo-photograph: The law says that an ‘image’ includes a photograph, a film, a negative, and data stored on a computer or by other means of storage that is capable of conversion into an image. ‘Pseudo-photographs’ are not real photographs, but they are made by computer software to look like real photographs (sometimes they are indistinguishable from real photographs).
  3. Of a child: The law says that a child is any person under the age of 18. If the image is a pseudo-photograph, the jury will be asked to consider if the impression conveyed by the image is that the person shown is a child. The jury can make a finding that the image is of a child, even if some of the physical characteristics shown are those of an adult.

What kind of evidence is used in possession of indecent images of children cases?

The prosecution will need to prove your involvement with the indecent image. If you are accused of possessing an image, the police will probably have seized your electronic devices such as computers, laptops, hard drives, and mobile phones. They will attempt to identify how you obtained the image, how long you have had it, and whether you have viewed it using forensic computing methods.

Where you have been accused of distributing images, the prosecution will need to show when and how you sent the images to others, and to whom you sent them. They will therefore search your electronic devices for emails and other communications that might reveal such information (authorities are especially interested in doing this to discover other individuals who might be involved in the illegal activities).

If you are alleged to have published images, the prosecution will need to obtain evidence of where the images were published and will need to prove it was you that did it. They may do this by attempting to link your actions with your IP address or some other identifier on your computer.

The prosecution will also need to produce evidence that the image is of a child. They may do this by obtaining identifying information in respect of the person depicted in the images or getting expert testimony as to the age of the person portrayed in the images.

What is the maximum sentence for possession of indecent images of children cases?

The maximum sentence for this offence depends on the law you are charged under. If you are charged under Section 1 of the Protection of Children Act 1978, the maximum sentence is 10 years’ custody. If you are charged under the Section 160 of the Criminal Justice Act 1988, the maximum sentence is 5 years’ custody. In either case, you are not guaranteed to face a prison sentence. In some less serious cases, you may receive a community order.

When looking at what sentence to give you, the judge will first decide the offence category. Category A offences involve penetrative sexual activity, images involving sexual activity with an animal, or acts of sadism. Category B offences are of non-penetrative sexual activity. Category C offences are those that do not fall within either of the first two offences.

Each category has a recommended sentence range, depending on whether you possessed, distributed, or produced the images. For example, for possession of a category C image you are likely to receive a community order, or up to 26 weeks’ custody. If you were involved in the making of a Category A image, you can expect to receive 6 to 9 years’ custody.

What are the applicable possession of indecent images of children defences?

With defences being such a complex area of law and so heavily dependent on the individual facts of a case, you should always consult a solicitor for specialist advice. The law sets out several defences to offence of possession of indecent images of children. These include:

  • You had a legitimate reason for having the image in your possession (this really only applies to police officers or legal professionals working on an indecent images case who have the images in their possession as part of the ordinary course of their duties at their job).
  • You had not seen the images and did not know or have any reason to believe that the image was indecent. You may be able to rely upon this defence if the image was on an electronic device belonging to you, but you were unaware of the fact that it was there.
  • The image was sent to you without any prior request made by you or on your behalf and you did not keep it for an unreasonable time. This could apply to you if you received an unsolicited email, and once realising its contents, you deleted it straight away.

The fact that images have subsequently been deleted will not necessarily provide you with a defence. The court will consider whether images were stored, how they could be retrieved, and if you were aware of the fact that they could be retrieved.

General defences

General defences might also apply to indecent images cases. A ‘general defence’ to relates to the person accused rather than the crime itself. The following general defences may apply to the charge of possession of indecent images of children:

Insanity: To succeed in this defence, you need to do more than simply show that you were suffering from mental health issues. You need to show that due to mental illness, you lacked the ability to reason such that you did not know that the act that you were doing was against the law. If the court finds that you were suffering from a recognised mental illness that caused you to lack the mental capacity to commit the offence, you may be acquitted on the grounds of insanity.

Duress: This is where you were forced by a person or a set of circumstances to commit an offence. The court will consider whether you reasonably feared death or serious injury if you did not commit the act, and whether a reasonable person in your situation would have shared those fears and responded in the same way. This could apply to you if someone forced or pressured you to become involved in making, distribution, publication or possession of indecent images.

Mistake: This defence could apply if you were mistaken as to certain factual circumstances and would not have committed the offence is you had known otherwise. For example, perhaps you downloaded a file onto your computer, or opened an email, not realising its contents.

Automatism: If you were not aware of your actions when committing the offence, in some rare circumstances, you may be able to rely upon the defence of automatism. Generally, if you were under the voluntary influence of alcohol or illicit drugs while committing the offence, you will not be able to rely on this defence.

What will a successful defence achieve?

A successful defence to a possession of indecent images of children charge may lead to you being acquitted (released with no conviction) or convicted of a lesser charge (which usually means you will receive less prison time or a community order). Remember, though, that defences are highly fact dependent and it is difficult to predict what might happen so seek advice on your case from a criminal defence solicitor.

Where to find help with possession of indecent images of children offences

If you have been accused of possession of indecent images of children, Stuart Miller Solicitors is here to help. Our team has many years’ experience defending possession of indecent images of children cases and we have expert insights into the defences that might apply to your case. To arrange a no obligation consultation, please get in touch.

(This page was last updated on November 22, 2023.)


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