Indecent Images Solicitors

Few criminal allegations are as disruptive and potentially damaging to the accused as the possession of indecent images, with the investigation itself often bringing significant personal, professional and reputational consequences. Seeking specialist legal advice at the earliest possible stage is therefore vital to ensure you have the appropriate guidance from the outset, such that your legal position is properly protected any wider ramifications can be minimised.

What Are Indecent Images?

Indecent images are photographs and videos of children under the age of 18 that depict them in a sexual context, as well as computer-generated files that represent images of this nature. The seriousness of indecent images offences is assessed using the following categories established by the Sentencing Council, which distinguish between material according to the type of sexual activity or conduct being depicted:

• Category A (Penetrative sexual activity): This is the most serious category and includes material depicting penetrative sexual activity, sexual activity with an animal or acts involving serious sexual violence or sadism.
• Category B (Non-penetrative sexual activity): Material in this category depicts sexual activity that does not involve penetration, but is nevertheless considered sufficiently serious to entail significant criminal penalties.
• Category C: This category covers other explicit material involving children that does not depict the forms of sexual activity included within Categories A or B, but is still considered indecent under relevant legislation. This can include nude or partially nude images and erotic posing. 

What Constitutes Possession of Indecent Images?

Possession of indecent images is an offence under Section 160 of the Criminal Justice Act 1988, where an individual is found to have an indecent photograph or pseudo-photograph of a child in their possession. Whether an individual can be charged with possession will depend on the circumstances in which the material came into their hands and the nature of their interaction with the material:

• Custody or control: An image may be considered to be in your possession when it is stored on a device you control, or in another location where you can access it, rather than simply being present somewhere on a device without your knowledge or ability to retrieve it.
• Knowledge of possession: The prosecution must prove that you knew that the image was in your possession, but they do not necessarily need to prove that you were aware that the image was indecent or that it contained illegal material.
• Requesting and retaining images: Where an image was sent to you, evidence that you requested then subsequently retained it for a reasonable period may support the case that you knowingly possessed the material, rather than receiving it accidentally or without solicitation.

What Constitutes Making and Sharing Indecent Images?

The term ‘making’ indecent images is commonly misunderstood, as an individual can be convicted of a making indecent images offence without having taken or created the original image themselves. Under Section 1 of the Protection of Children Act 1978, making an indecent image is defined as “to cause to exist, to produce by action, to bring about”, which means that this offence can apply in circumstances where the accused causes an existing image to be copied onto a device or otherwise brought into existence. These circumstances include:

• Opening an email attachment: Where an attachment automatically creates a copy of an image on a device when opened, the act of opening it may be sufficient to establish that the defendant caused the image to exist there.
• Downloading an indecent image: The act of downloading material can create a new copy on the device, which would mean that the individual caused the image to exist even though they were not responsible for creating the original.
• Storing an image: Moving or saving material into a particular folder or location can result in a new copy being created, which may bring the conduct within the legal definition of ‘making’ even where the image was originally received from another source.
• Accessing websites with indecent ‘pop-ups’: Where an image appears as a pop-up and automatically downloads to the device when the website is purposefully accessed, the court may consider this a making indecent image offence even if the individual did not deliberately download the image themselves.

The same legislation applies to sending indecent images offences, where sharing or distributing material ‘made’ by these means can result in a separate criminal charge.

Prohibited Images and AI-Generated Indecent Images

Prohibited images refer to non-photographic images depicting children in an indecent manner, including computer-generated images, animations, drawings and Japanese manga. Under Section 7 of the Protection of Children Act 1978, these images can be treated as pseudo-photographs where their predominant impression is that the person depicted is a child. This means that an image may fall within the legislation even where some physical characteristics have been altered to make the person appear older, provided the overall impression is that they are a child.

AI-generated indecent images similarly constitute prohibited images, even where they have been created entirely artificially. As a result, possessing, creating or distributing AI-generated material depicting children in an indecent manner can constitute a criminal offence, regardless of whether real children were involved in their production.

What Happens When You Are Accused of Indecent Images Offences?

Being accused of an indecent images offence can be an extremely distressing experience, particularly where an investigation affects your family life, employment and wider reputation. Police investigations can sometimes be conducted with little warning or consideration for the impact on the accused and those around them, but understanding what to expect can help you prepare for each stage and take steps to minimise the damage to your personal and workplace relationships.

• Police seizure of electronic devices: The police may arrive at your home or place of work with a warrant and without prior warning to seize computers, phones and other electronic devices in the presence of family members or colleagues. While an arrest may take place, it can take several months for forensic examinations to be completed and the investigation to progress.
• Sexual communication investigation: Alongside an indecent images investigation, the police may examine your devices for evidence of sexual communication with children and consider whether separate offences have been committed. This can increase the stress and complexity of the investigation, particularly if you are subsequently questioned about these allegations and require additional legal representation.
• Sentencing: The sentence for an indecent images offence will depend on the nature and seriousness of the conviction, with possession carrying a maximum sentence of five years’ imprisonment while making or distributing indecent images carries a maximum of 10 years.

Defences for Possession of Indecent Images

Being investigated for possessing, making or sharing indecent images offences can be an extremely distressing experience, particularly where the allegations threaten your relationships, employment and future prospects. In addition to the substantial prison sentences and immediate reputational damage that can result from an indecent images conviction, these offences can place individuals on the Sex Offenders Register, which can continue to complicate their personal and professional lives after their sentence has been served. 

For this reason, instructing specialist indecent images solicitors is essential to ensure that allegations are properly investigated and any available defence is identified and effectively presented. Some defences your solicitor may be able to explore include:

• Brief or accidental viewing: Where an indecent image has appeared on a device unexpectedly or was viewed only briefly without being deliberately retained, this may provide grounds to challenge an allegation of possession of indecent images.
• Lack of knowledge: In circumstances where the accused downloaded, transferred or stored indecent images without knowledge or suspicion of their contents, their solicitor can similarly challenge whether there is sufficient evidence to establish that they knowingly possessed them.
• Shared devices: Where a computer, phone or other device is used by multiple people, the presence of indecent images does not necessarily establish that they were knowingly possessed by the accused. Evidence showing who had access to the device, which user accounts were involved and how the material came to be stored can be examined to determine whether the accused had knowledge, custody or control of the images.
• Malware or viruses: Malicious software can cause files to be downloaded or stored on a device without the knowledge or intention of its owner. By ordering forensic examinations on the device, solicitors may be able to establish whether the material was introduced by malware or another external process, rather than being deliberately downloaded or retained by the accused. 
• Incorrect categorisation: In some cases, the classification of material may be challenged where there is uncertainty about what is being depicted in the image and whether it falls within categories established by the Sentencing Council. Expert examination may be required to determine the nature of the material and whether it meets the relevant legal definition. 

Specialist Support from Indecent Images Solicitors

At Newtons Solicitors, we understand the immense pressure that an indecent images investigation can place on those facing allegations, especially when digital forensics continue for months, prolonging uncertainty surrounding the outcome. From the moment we are instructed, we support our clients through every stage of the investigation, providing advice on their available options while ensuring that their legal rights are properly recognised and protected. Our trusted indecent images solicitors can provide support with every aspect of an investigation, including:

• Representation at the police station: Whether you have been arrested or invited to attend a voluntary interview, having legal representation is crucial to ensure you understand the allegations against you and the potential consequences of your answers. 
• Scrutinising evidence: Digital evidence can be extensive and technically complex, particularly where investigators have seized multiple devices that were accessible to more than one user. Our indecent images lawyers can scrutinise the evidence presented by the prosecution, considering how the images came to be present, who else may have accessed the device and whether the evidence is sufficient to establish the alleged offence.
• Expert consultation: Where specialist knowledge is required to understand the forensic evidence, we can work with appropriate independent experts to identify how files were created, downloaded or stored and whether factors such as malware or other technical issues could provide an alternative explanation for their presence. 
• Support with communication: These investigations can involve communication with the police, employers and other organisations, which can be difficult to navigate. Our solicitors can advise on how and when to communicate with relevant parties, such that you can address important matters appropriately while avoiding unnecessary disclosures.

To learn more about the scope of our legal services, or to share some important information about your case that could provide some clarity on your possession of indecent images, please do not hesitate to contact us today so that our team of sexual offence solicitors can start preparing your defence. 

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