Sexual Offences

WHAT HAPPENS IF YOU ACCIDENTALLY VIEW CHILD PORNOGRAPHY IN THE UK?

man porn laptop

It can happen innocently enough: a person can be browsing the internet and searching for any number of things when a pop-up or website redirect flashes up a pornographic image or website. For many people, this can be disturbing in and of itself. But if those images involve children, the viewer may be extremely worried about the consequences of that material being on their device. So, what happens if you accidentally view child pornography in the UK?

If it is really an accident, then you likely do not have anything to worry about. A single image or website being viewed by a person by accident is not what the law is looking to prosecute. The courts want to prosecute cases where people are blatantly exploiting children for their own sexual gratification, especially where there is documentation of those experiences that are shared on the ‘dark web.’ Read on to discover more about what to do if you have accidentally viewed child pornography and how child pornography cases are usually put together.

What is the definition of child pornography under English law?

Child pornography is any sexual images or videos of children, i.e. persons under the age of 18. The images that are considered pornographic are generally those that include children with their genitals exposed or in provocative poses. Videos that have explicit content of children would also be considered child pornography. Usually the images and videos depict children being abused sexually, including rape by adults. The law defines indecent images as child pornography, and prohibits them, if the images:

  1. are sexually provocative or pornographic in nature;
  2. focus primarily on the child’s anal or genital areas; and
  3. are extremely obscene or offensive.

In day to day internet usage, most people do not have to worry about ‘stumbling upon’ these types of images and videos. In the vast majority of cases, it would take a specific search term to have these images show up on a device. If you happen to find an image on your device and you are the only one using said device, be aware that sometimes malware will download such images with seemingly unrelated apps or other downloads. For the most part, you are safe to delete these images and move on with your life normally.

How is intent determined when someone has viewed child pornography?

If through whatever circumstances you are concerned about the police finding out about you having accidentally viewed child pornography, remember that the police need to prove that you knew that you were viewing these images and that you deliberately continued to view them for you to be charged with an offence. For most people who accidentally view such images, their first response is to click off an image or close the website. This activity demonstrates no intent to view the images.

More complex are the cases where you are in possession of indecent images on your computer, phone, laptop or other device, as to a third party, this suggests that you downloaded the image. If truly unintentional and you suspect the image came from malware or a virus, you can safely tell this to the police and they can check your device for evidence of such (such as malware in a recent download). If you have no explanation and searches on your device suggest you did intentionally download the image, however, the case – understandably – is very different, and the police are likely to ask a number of questions to determine why the images were on your device in the first place. This is where they will pay much more attention to figuring out the intent behind your possession of the images.

If it is unclear to police why you possess such images, or if you have a number of them and some suspicious searches, you can expect your devices to be seized and searched by police officers. A forensic expert would look for images and videos that might be considered child pornography.

Use of forensic evidence in child pornography cases

Forensic experts who specialise in child-related crimes are aware of the more popular images and videos that are traded between child pornography collectors. In addition to their being certain images or videos that are widely known as coming from a particular source, there are certain indicators in the files themselves that the images came from a particular place. Experts can tell, for example, that certain files come from membership sites or password protected areas of the dark web, and in these cases, having evidence of membership or secret passwords indicates the requisite intent to view and possess such images. If there is no intent and the viewing was purely accidental, such indicators will not be present.

Similarly, forensic experts are able to determine from your device usage and search history if you came across images by accident or if you actually searched for them, then viewed them, shared them, stored them, put them into a file, renamed them, or did some other action to show that you knew exactly what you were doing. A forensic expert’s report will be used in court by the prosecution to show how the images were handled. There will be details in the report which explain:

  • whether material was searched for or otherwise requested by the person under investigation
  • the approximate age of the children depicted
  • the number of images that are saved to the device and the period of time where they were collected and viewed
  • whether there is any good reason why the images should be in the possession of the person whose device they are discovered on (if, for example, the images are on a lawyer’s computer and they are being used to prosecute someone else).

Is viewing the same as possessing in the UK?

English criminal law categorises actions involving indecent images of children and treats them differently. These actions include:

  • Possession, where a person possesses indecent images in physical or digital format
  • Distribution, where a person sends or shares digital files through chat rooms, social media or by using a file sharing programme where it can be established that distribution was intentional
  • Production, where a person creates, edits, or otherwise produces indecent images

Indecent images are graded according to their severity. Category A includes images that are sexually explicit and involve penetration or sadism with an animal or a child, which also depicts the victim being in pain. Category B includes images of non-penetrative activities including masturbation. Category C includes erotic images or sexually explicit posing.

Are there any defences for offences involving child pornography?

Two statutory defences exist under pornography laws in the UK, and it can be useful to know about these defences if you are worried about any accidental viewing of child pornography:

  1. There was a legitimate reason why the defendant possessed this indecent material, such as being stored for use as evidence in an unrelated crime. Given the limited number of cases in which this might reasonably be the case, not many defendants use this defence.
  2. The defendant was unaware that there were images or videos of such a nature on their device, which could occur if a pop-up or other malware deposited images onto a device.

Sentences for viewing and/or possession of child pornography

Any crime involving the sexual abuse of children is a very serious one indeed, and the courts take such offences equally seriously in sentencing. The maximum sentence available for possession of indecent images is five years’ imprisonment and 10 years’ imprisonment for distribution and production. There are several factors that play into decision-making around sentencing, and judges will often spend considerable time weighing up both aggravating and mitigating factors to ensure an appropriate sentence for the offender.

According to a government consultation on these cases, aggravating factors might involve: previous convictions, having regard to a) the nature of the offence to which the conviction relates and its relevance to the current offence; and b) the time that has elapsed since the conviction, the offence being committed whilst on bail, age and/or vulnerability of the child depicted, visible physical pain suffered by child depicted, period over which images were possessed, made or distributed, there being a large volume of images possessed, distributed or

produced/taken, placing images where there is the potential for a high volume of viewers, and the collection including moving images.

On the other hand, mitigating factors might involve: no previous convictions or no relevant/recent convictions, remorse, previous good character and/or exemplary conduct, determination and/or demonstration of steps taken to address sexual behaviour, age and/or lack of maturity where it affects the responsibility of the offender, and mental disorder or learning disability, where linked to the commission of the offence.

What do next if you have accidentally viewed child pornography in the UK

If you find yourself in the unfortunate position of being accused of an offence regarding child pornography, it is important to get in touch with a legal expert immediately. You may find it helpful to discuss a situation with a criminal law solicitor even if you accidentally viewed an image but managed to exit the website immediately. For more information about child pornography offences and what you must do to protect yourself from prosecution in accidental cases, contact Stuart Miller Solicitors today for a no-obligation consultation.

 

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