In England, it is a crime to access an indecent image or have an indecent image in your possession – in addition to more severe offences, such as producing or distributing indecent images.
These actions are criminal offences under theCriminal Justice Act 1988 and the Protection of Children Act 1978, and individuals who are prosecuted and found guilty could face a community order or prison sentence, plus several years on the Sex Offenders’ Register.
As these are serious crimes involving children, the police will investigate any allegation thoroughly – even if the accused person did not seek out the indecent images themselves.
This is why it is essential to ensure you have a strong defence if you are accused of committing an indecent images offence, especially if the images involved were unsolicited.
What is classified as an indecent image?
An indecent image is typically a photograph or video of a child under 18 years old that depicts them in a sexual manner – whether this includes partial or full nudity, sexualised posing, or sexual activity.
Any image that depicts this could be considered an indecent image, including self-generated photos or videos (selfies) and pseudo-images (computer-generated or altered images). Electronic data or files that can be converted into images are also included.
Accessing an indecent image, such as by downloading or opening a file, is considered to be the offence of ‘making’ an indecent image. Therefore, if someone sends you an indecent image and you access it, even unintentionally, you are committing a crime.
Of course, the person sending the indecent image is also committing the offence of distributing indecent images – and if they created it themselves, they could also be committing the crime of producing an indecent image.
If you do not report the indecent image to the authorities, you could also be committing further offences under the Serious Crime Act 2007, which prohibits assisting perpetrators to commit an offence or to avoid detection and justice.
The possible charges for such crimes depend on the content and severity of the indecent images involved, which will be graded through the Child Abuse Image Database (CAID). There are three categories – A, B, and C, with A being the most obscene and resulting in the most severe sentences.
Is there a defence for unsolicited indecent images?
‘Making’ or accessing an indecent image can happen in various ways, and is not always done deliberately. For example, someone could open an attachment to an e-mail, instant message, or text without knowing what it contains, or accidentally click on a pop-up or link that downloads a file to their device or cloud storage without realising.
Therefore, if someone is charged with ‘making’ or possessing an indecent image in such a situation, the prosecution must prove to the court that the accused person intentionally viewed or saved the image with full knowledge that it was an indecent image.
In a scenario where you were accused of possessing an image that you had no idea about, you could present a ‘lack of awareness’ defence, which would require proving that you did not view the image and were either unaware of the file’s existence or what it depicted.
If you did briefly view the image, but without requesting it to be sent to you or having prior knowledge of its content, you could defend yourself against the accusation of ‘making’ an indecent image by proving that the images were unsolicited and you did not keep the file or access it again.
In a trial, it is typically left to the jury to decide what counts as a prior request for indecent images and how long is considered an unreasonable amount of time to keep them.
Whether you reported the unsolicited indecent image and the sender to the police as soon as possible after receiving it, or not, will also be a significant factor in mounting a successful defence.
Speak to indecent images solicitors
If you or a member of your family have been accused of an indecent images offence, the first thing you should do is contact a specialist solicitor for professional advice.
These types of crimes and this area of law are especially sensitive and complex because they involve children, so it is crucial to seek expert support immediately to ensure that these allegations are dealt with as quickly and definitively as possible.
In many cases, the consequences of indecent image charges can be life-ruining, but experienced indecent images solicitors can provide a strong defence that could help you to avoid conviction or reduce any applicable sentence.