The first thing to do if you are under investigation for possession of indecent images is to seek expert legal advice from a specialist indecent image solicitor. This article provides information and advice to those that are accused of possession, and/or the making of, indecent images. Due to the severe nature of the allegations, and the ramification that accusations can have for you, it is important that legal advice is sought at the earliest opportunity and is tailored to your individual situation.
Alternatively send your enquiry through our contact page here. For more information regarding indecent images and our services in this area, visit our indecent images solicitor page here. For a more thorough overview of related accusations, such as sexual communication with a child, visit our page here.
Being Investigated for Possession of Indecent Images
In the last 25 years the internet has changed every aspect of the world we live in. Like any dramatic change in society, it has taken time for people and governments to understand how best to govern this new world.
The growth of the internet has created a huge volume of pornographic websites, the majority of which are lawful and contain lawful content, though most remain loosely moderated. In addition to pornographic websites, the rise of the Tor network, otherwise known as the “Dark Web”, unfortunately allow illegal pornography to be distributed with relative ease.
In a similar manner to the discourse on social media and its potential for negative effects, the explosion of online pornography has led some down a dark path that they may otherwise would not have had access to. Given the lack of moderation in even the more popular websites such as Pornhub.com, it is even possible to unintentionally come across such material. This has led to innocent computer users being suspected of accessing illegal material.
What to do if you are accused of possessing indecent images of children?
There is no question that that being accused of an offence of possession of indecent images of children is a traumatic event. Whether arrested or invited to a police station to take part in a voluntary interview under caution, the accusation is enough to create a stigma towards the accused that can impact their family, friends, work relationships and all aspects of their life.
Representation at the Police Station is free under the Legal Aid scheme, there are no costs unless you wish to instruct a private client Solicitor. Therefore, there is no downside to requesting a solicitor and obtaining some advice.
There are some basic pieces of advice that we consider relevant to everyone who is arrested or interviewed for these offences:
- Do not make unsolicited comments to Police Officers without a legal representative present.
- Do not speak casually or “off the record” to Police officers regarding the offence.
- When booking into custody ask for a solicitor, either the duty solicitor or a specific solicitor you wish to represent you.
- Do not decline a solicitor because “it will take longer”, as the Police may suggest, this is not the case.
- Do not provide any passwords or pins to electronic devices until you have taken legal advice.
- If released from custody, do not send emails, letters or information to the officer conducting the investigation while under investigation. Make sure a solicitor reviews any information or communication before sent.
- Do not breach any police bail conditions, this could result in the Prosecution asking for you to be remanded into custody should the case proceed. If you have been placed on bail conditions you believe to be too onerous or unworkable contact us and we will make representations to the officer or an application to the Magistrates Court, as necessary.
- Get a notebook and make some private notes of information that may be relevant that you may forget. You may be under investigation for many months and the passage of time and stress will inhibit your memory in the future. Note times your email, PC was hacked, computer virus infections, websites visited, suspicious links etc.
The Monitoring of Technology and Becoming a Suspect
Accessing the internet in the privacy of your home gives the user a perceived anonymity which, unless the user is experienced in the use of privacy strategies such as VPNs, is simply not the case. As a society we are becoming more and more aware of the fact that we are monitored through our technology and law enforcement as well as vigilante groups are monitoring the internet for child sex offences.
If credible information is relayed to the police via law enforcement, social media companies, vigilante groups or complainants, the Police can search a suspect’s property with a warrant under S.4 of the Protection of Children Act 1978 and seize items in order to search them for indecent photographs. Most commonly this involves a forensic download of their electronic devices. A process which is deeply intrusive into all manner of their personal lives.
This is often accompanied with an arrest under suspicion of being in possession of indecent images of children. Regardless of whether this is true or not, such abrupt contact with the police is extremely stressful for an individual, making it even more important that they are accompanied in the police station by a legal representative.
It is important the suspect understands his situation from a legal perspective as well as procedurally. We have provided some information here and elsewhere on our website. However, there is no replacement for in-person legal advice on your specific circumstances.
What is the law regarding Possession of Indecent images?
Possession of indecent images is charged under S.160 Criminal Justice Act 1988. Suspects are often also arrested at the same time of making indecent images, prosecuted under Section 1 of the Protection of Children Act 1978. This can often be confusing and distressful for the suspect as they believe they are being accused of actually taking the photograph or video.
In fact, the ‘making’ of indecent images can occur in many ways, including downloading an image from the internet. The act of downloading “makes” the indecent image on the device upon which the image has been downloaded.
In law, there are three categories of indecent images of children:
- Category A – explicit images of sexual penetration
- Category B – explicit images of non-penetrative sexual activity
- Category C – explicit images of erotic or sexual posing
Category A images and videos are treated most seriously by the court, and possession of such material can result in a custodial sentence. However, the courts are duty bound to consider rehabilitation in the community under specific circumstances, so it is of vital importance that the most complete mitigation is prepared and presented to the court by the best possible advocate.
What is required to convict someone of possession of indecent images? (Evidential Burden)
There are several evidential burdens that the police and prosecution must fulfil to obtain a conviction.
The police or prosecution must prove you had knowledge of the indecent images on a device such as a computer, laptop or phone. There may be occasions when the person being investigated has ownership of the device on which the indecent images have been found, but that they may not have exclusive control of it.
Other factors that require consideration include whether there is a legitimate reason for possessing the images, and whether the images are children under the age of 18.
What are the Defences for Indecent Image possession? (Statutory Defences)
There are 3 statutory defences regarding indecent images:
- Legitimate reason – this defence requires the accused to provide a legitimate reason for being in possession of indecent images.
- Lack of awareness – the accused would have to prove they had not viewed the images and they had no reason to assume the images were indecent. Such a defence may apply if the images were ‘made’ inadvertently on the device on which they were found, such as via a pop-up or virus.
- Unwanted Receipt – that the photograph, or pseudo-photograph, was sent to the defendant without any prior request made by them or on their behalf and that they did not keep it for an unreasonable time.
It is imperative that a statutory defence is put forwards at the earliest possible opportunity.
At Reeds Solicitors we look at all aspects of your case, and often instruct experts to forensically analyse the devices and consider the prosecution’s expert evidence. We provide you with straightforward advice regarding the strength of the evidence, potential defences available, and always work towards getting our clients the best outcome possible.
It is not uncommon for a suspect to wish to plead guilty and have matter dealt with swiftly. Often such cases are linked to a severe deterioration in the individual’s mental health, as well as addiction in its various forms. We are able to refer clients to special therapists trained in dealing with people with such issues.
Such individuals are often of good character, i.e. they have never been in trouble with the law before, and they struggle to explain their behaviour. In these circumstances it is invaluable for them to have someone to speak on their behalf. An experienced advocate communicating to the Court an individual’s specific circumstances, mindset and vulnerabilities with understanding and empathy, alongside extensive knowledge of the sentencing caselaw, will often be able to have a significant effect on the sentencing outcome.
Sentencing for Possessing and Making indecent images.
Sentences for possessing and making indecent images or possession of extreme pornography will vary depending on various factors including:
- categorisation of the images
- the number of images involved.
- The content of the material
- The age of the children
- The character of the defendant
- Action the defendant has taken to address his offending.
- A reduction in sentence by way of credit for an early guilty plea
Such offences often attract a custodial sentence, though it is not inevitable. For custodial sentences under 2 years in length, the Judge has the power to suspend the sentence and order a rehabilitation course in the community. There are various factors that a judge will usually consider to be mitigating, but they are too numerous and too specific to the individual to go into detail here. What is imperative is that the accused consider potentially mitigating factors early and take the opportunity to build on them whenever possible so that the best possible mitigation is presented at the point of sentencing.
A part of any robust legal representation is to advise on and prepare mitigation thoroughly, including character references and, if necessary, medical or psychiatric reports.
If you are convicted of an offence regarding indecent images, you will be required by law to sign the Sex Offenders’ Register. In addition, the Prosecution are likely to also seek a Sexual Harm Prevention Order which will place restrictions on your online activity and contact with minors. Careful scrutiny of the order is required by a legal professional to ensure it is not too onerous, unmanageable, or oversteps what is necessary or permitted in law.
If there is one takeaway from this article, it is that someone in this situation should not bury their head in the sand. It will not assist their defence, and in nearly all circumstances it will make their position worse. It is vital that a suspect obtain advice from a specialist indecent images solicitor [LINK] as soon as possible in order to be fully aware of their position and make informed decisions. Most importantly anyone who is to be interviewed by the police for such offences should be represented by a solicitor with experience in dealing with the specific offences.
If you have been the subject of a search warrant issued under the Protection of Children Act 1978 and have had items seized or are accused of possessing indecent images, it is critical to seek expert legal advice as soon as possible, so that we are able to gather all the necessary evidence to defend your case.
If you have been invited for a voluntary interview under caution, or a follow up interview, contact a specialist solicitor and obtain legal advice before that interview. Find a solicitor you believe you can trust to give you an honest appraisal of the circumstances you find yourself in, so that with their advice you can begin to plan how to proceed. It is of vital importance that the interview with the police is managed appropriately, as cases are often won or lost at this first stage.