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In recent years, lawmakers in the UK have had to make difficult decisions about how to control what images people watch, possess, sell, and otherwise distribute. The emergence of the Internet and the wide availability of mobile devices with cameras has made this matter even more of a public concern than it ever used to be.
The result for the general public is that the laws on indecent images are quite complex, and if you or someone you care about has been charged with an offence related to viewing and/or possessing indecent images (or a related crime), then it stands to reason that you might be upset and confused about what it all means.
In this article, we outline the main crimes involving indecent images in England and Wales and shed light on some key issues that may affect your case. More information on where to get help with your case can be found at the end of the article.
What are indecent images?
Unfortunately, there is no simple explanation under English law as to what an ‘indecent image’ actually is. This is because the range of images that could potentially fall into this category is so diverse.
In an attempt to catch and treat different types of images appropriately, the General Sentencing Council (the body responsible for deciding criminal sentences) has created a three-tier system (which replaced the more complicated five-tier system in 2014):
- Category A images are deemed the most serious
- Category B images encompass the mid-range in terms of seriousness
- Category C images are the least serious
Figuring out exactly which category an image should below to is not always a simple task. There are detailed guidelines for each category, but the definitions are hotly debated in legal circles. Some argue the definitions encompass too much, whereas others argue they are too narrow.
What this means in practice is that in existing criminal cases, much will just come down to how the judge instructs the jury to understand the definition.
What are Category A indecent images?
Category A indecent images are deemed the most serious, and punishments for these kinds of images are accordingly the most severe permitted by the law.
Category A images typically involve penetrative sexual activity, sadism, assault, or sexual activity with an animal. Any image that shows a child being subjected to pain will also fall within this category.
What are Category B indecent images?
Category B indecent images encompass a range of images that involve children or animals involved in non-penetrative sexual assault and explicit sexual activity, such as masturbation, oral sex, sexual touching, or anything else that falls within the parameters of sexual activity.
There is no longer a requirement that an adult is present in the image, although in most cases where an adult is present in the image, the image will usually fall into this category unless it is obscene enough to be categorised as a Category A image. Images that only show children involved in explicit sexual activity also fall under Category B.
What are Category C indecent images?
Category C indecent images are those that depict some sexually suggestive content but do not fall within the seriousness of Categories A and B.
The definition is a very loose one, and technically many family photographs and editorial and artistic works would fall under this definition. Because of this, it is the intention of the person viewing or possessing the image that ultimately falls under scrutiny by the court. There is nothing wrong with a family picture of children playing at the beach while on holiday, for example, unless the person viewing or possessing the image intends that the image should depict sexual content (because the children might only be wearing minimal clothing, for example) or be shared with others who derive pleasure from indecent images of children.
Is it only still images that are restricted?
No, still images are just one small part of the wider concept of ‘image’ taken into account by the Crown Prosecution Service (CPS). The CPS understands an ‘image’ to be still images like photographs, along with moving images (namely videos), animations, video photography, and ‘pseudo-photography’ (a category that covers images that can be converted from one thing – usually innocent – into another thing – usually indecent – by computer software). Sketches, paintings, and other hand-drawn images are not covered by the definition.
What crimes involve indecent images?
Despite common parlance referring to ‘viewing’ indecent images as an offence, the law actually makes criminal the ‘possession’ of images and the ‘making’ of them. As such, there is an offence for ‘possession’ and a separate offence for ‘making’ (although these are often prosecuted at the same time in many cases).
- ‘Possessing’ indecent images means the physical or digital possession of a prohibited image. Most often, this is a file on a computer or phone, printed materials, or a form of pseudo-photography (computer transformed image) mentioned earlier. The definition of possessing gets complicated when a file has been deleted, as technically the imprint of the file still remains in the possession of the individual on their hard drive even though they might not be able to view it anymore without restoring the files.
- ‘Making’ indecent images is another complicated concept, as it does not only refer to the simple ‘making’ of images, such as taking a photograph or filming a video. Making can also relate to file-making, which occurs when an image is downloaded (a new file of the image is created locally on the computer of whomever downloads it) or otherwise saved to a device. Even those who accidentally download child pornography or other indecent images fall foul of this definition in the eyes of the law, meaning the ‘it was an accident’ excuse can be near useless in court. Again, much will come down to the intention of the person that made the image. Forensic investigators are usually able to uncover the origin and processing of files, which furnishes the court with greater context about where images came from and what actually happened to/with them once they were made. The distribution of images also falls under making, so if someone shares, sells, or otherwise ‘makes new copies’ of the images, they will also be charged with making indecent images.
So, is ‘viewing’ indecent images the same as ‘possessing’?
To give a lawyer’s answer, ‘it depends’. Viewing an image can be done in many ways, and viewing may or may not amount to possession. If to view the image a person has to download it onto their computer, then a file will be made and so viewing may equate with the more serious offence of ‘making’. If a person is found to be viewing image results only on a search engine website, the offence may be deemed one of the less serious possession. Drawing clear lines between the offences is very difficult indeed, and often there is no clarity on the point until the trial concludes and a judge gives her or his opinion on the matter.
What are the punishments for possessing or making indecent images in the UK?
For Category A offences – which, recall, are the most serious – the punishment for possession ranges from one to three years’ imprisonment, and for making indecent images can exceed six years’ imprisonment in the worst cases of production.
For Category B offences, possession can attract sentences of a minimum of 26 weeks (around six months) and making can attract sentences of between one and four years’ imprisonment.
Finally, for Category C offences, punishments range from community orders for possession and imprisonment of between one and three years for making.
What is illegal to watch on the Internet in the UK?
Most of us are – for one reason or another – well aware that the UK government censors – or tries to censor – a number of things on the Internet.
The laws providing for these restrictions are very broad and they encompass everything from restricting access to textbooks because of copyright law to banning extreme pornography in the public interest.
When it comes to pornography, many types of pornography fall under government prohibitions, including child pornography, animal pornography, ‘scat’ pornography (an extreme form of pornography involving defecation), and any pornography that shows assault or violence, or involves vulnerable individuals. Because definitions are so wide, there is no current list of exactly what is illegal to watch on the Internet in the UK.
Where to get help with indecent image charges
At Stuart Miller Solicitors, we fully understand that being accused of any offence that involves indecent images can be a highly distressing time, leaving you feeling hurt, angry, ashamed, embarrassed, and many other things in between. For a friendly non-judgemental conversation about the case against you, what might happen next, and how you can best protect yourself and your family from the stigma of an indecent image charge, please get in touch with our team today.
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