Have you been charged with sending inappropriate pictures to a minor? If so, you may be wondering exactly what type of offence you are alleged to have committed, and you are probably in need of some expert advice. This article explores offences that relate to sending inappropriate pictures to a minor. It looks at the laws that apply to adults who send inappropriate pictures to minors, and situations where children send inappropriate pictures between themselves. It walks you through what will happen if you are arrested and charged with this offence, and what might happen if you are later taken to trial. We then consider the sentence that you could face if you are convicted.
In this modern age of smart phones, ‘sexting’ or the sending of explicit images via mobile phones, has become a commonplace activity. Oftentimes, this happens between two people who both consent to the activity. But when does it constitute an offence?
The sharing of sexually explicit photographs of an adult between adults is not a criminal offence, unless the image is shared without the subject’s consent, in which case it would be covered by a new law that specifically criminalises ‘revenge porn’.
However, where the image is of a child (i.e. a person under the age of 18), the sharing of indecent images is prohibited, even where the child consents to the image being shared. The law that sets out this offence is Section 1 of the Protection of Children Act 1978. This applies to:
It is also a criminal offence to possess an indecent image of a child under the age of 18, under Section 160 of the Criminal Justice Act 1988.
The police have stated that where sexting occurs between children, they will not prosecute unless it is in the public interest and they will primarily regard this as a safeguarding issue.
However, in spite of this, between 1 January 2017 and 21 August 2019, 6499 children were investigated by the police for sending indecent images of themselves to another child.
What counts as an indecent image of a child?
An indecent image of a child is a photograph, pseudo-photograph, drawing or other depiction of a child under the age of 18 that displays content of a sexual nature. The definition of what counts as ‘sexual’ is not set out in the law, however the courts have taken it to mean:
The law relating to sending indecent pictures of a child is different to sending inappropriate text messages to a child. However, sending sexually explicit messages to a child may still be a criminal offence.
Section 14 of the Sexual Offences Act 2003 prohibits child grooming. This is defined as ‘arranging or facilitating something that he intends to do, intends another person to do, or believes that another person will do, in any part of the world’ that would constitute a sexual offence against a child, as set out by the Sexual Offences Act 2003. Therefore any messages that arrange sexual activity with a child would be an offence.
In addition, the Serious Crime Act 2015, Section 67 prohibits sexual communication with a child under the age of 16. This legislation was introduced to try to close the gap in the law, which previously only addressed the sending of images of children, or arranging sexual meeting, rather than addressing the sending of sexual communications, or sending indecent images to children. According to this law, a communication is sexual if it is sent for the purposes of sexual gratification, and if it is sexual or it is intended to encourage the minor to make a communication that is sexual. This could include sending an inappropriate picture to a minor. However, critics have suggested that the police have failed to bring prosecutions under this new legislation.
If you are suspected of sending inappropriate pictures to a minor, the police will arrest you and interview you. They may also seize evidence that is relevant to your case, including your mobile phone, laptop, PC, tablet, and or any other electronic devices. They will ask you for the passwords to your devices, but if you decline to provide these, the police have methods by which they may be able to access the material contained within them. They may also seize images and other information held by you in the cloud, and arrest anyone else who is suspected of committing the offence with you.
Where the police believe they have sufficient evidence against you to warrant a prosecution, the police will charge you. The custody sergeant will read out the charges to you, and hand you the charge sheet. You will then either be released on bail or remanded in police custody until your first appearance in the Magistrates’ Court. At this first appearance, you will be told what offence you have been charged with, and asked to confirm your name, address, and date of birth. You will be asked to confirm whether you intend to plead guilty or not guilty.
The next steps in your case depend on your plea, and whether the case is to be heard in the Magistrates’ Court or the Crown Court. The offence of sending indecent images to a child is an either way offence, which means that it can be heard in the Magistrates’ Court or the Crown Court (however, it is predominantly heard in the Crown Court). This means that if you plead not guilty, it is likely that your case will be heard at a trial, with a jury of ordinary men and women, who will be responsible for deciding if you should be found guilty or not guilty. If you plead guilty, there will not be a trial. Instead, the Crown Court will list a sentencing hearing to determine the sentence that you should be given.
If you are found guilty of possessing an inappropriate picture of a minor, the maximum sentence you could face is a five year custodial sentence. If you are found guilty of sending an indecent image of a child, the maximum sentence is a 10 year custodial sentence. The maximum sentence for sexual communication with a child under Section 67 of the Serious Crime Act 2015 is a two year custodial sentence.
However, for less serious offences, you may not receive a custodial sentence. You may instead be given a high level community order. There are no published guidelines on sentencing for sexual communication with a child. For indecent images offences, when deciding what sentence to give you, the court will consider which category the image fits into.
For example, an adult who shares an image depicting penetrative sexual activity involving a child, with a child, would face a custodial sentence of between two and five years. If an adult shared a picture of a naked minor with the child, they would be looking at a sentence somewhere between a high level community order and 26 weeks in custody.
Detailed sentencing guidelines can be found here.
As the above sentencing guidelines highlight, you can go to jail for sending indecent images of a child, or for other sexual communication with a child, which could include sending sexual pictures to a child.
However, in less serious cases, you may not necessarily face a prison sentence, and you may instead be given a community order. This depends upon the exact facts of your case and what level of harm was done. You should obtain the advice of a criminal defence solicitor who will be able to advise you on the specifics of your case.
If you have been charged with sending inappropriate pictures to a minor, you should instruct a criminal defence solicitor whom you trust immediately. Obtaining timely legal advice could make all the difference to your case. At Stuart Miller Solicitors, our experienced team of solicitors are ready to advise you today. We will provide you with realistic advice tailored to the facts of your case, and, if you intend to plead not guilty, we can help you in preparing the best possible defence. Call us for a no-obligation consultation today.