Needless to say, being accused of possessing indecent photographs or pseudo-photographs of children is an incredibly serious offence. If you’ve been found to be in possession of indecent images the police may confiscate the images, including technology they may exist on such as mobile phones and computers and you may face prosecution.
What Constitutes Possessing Indecent Images?
If you’ve been accused of possessing such images it’s best to familiarise yourself with what the offence actually covers. Although possessing indecent images sounds pretty self-explanatory, certain legal jargon can cause confusion.
For a person to be found guilty of an offence the Prosecution must be able to prove:
1.That the person deliberately and/or knowingly either –
made, took, or permitted to be taken, or distributed or showed indecent photographs or pseudo-photographs,
or
Possessed indecent photographs or pseudo-photographs with a view to them being distributed or shown, published or caused to be published an advertisement for indecent photographs.
2.The photograph or pseudo-photograph was indecent.
The phrase ‘indecent photograph’ includes an indecent film, or a copy of a photograph or film, or computer data capable of conversion into a photo a copy.
The test for indecency is for the jury to decide based on what is the recognised standard of propriety.
The circumstances and motive of the person are not relevant to the question of indecency, although they may be relevant to the question of whether the photograph was deliberately taken or made.
‘Pseudo-photograph’ means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.
3.The photograph or pseudo-photograph was of a child.
The definition of a child is a person under 18 years of age (formerly 16 before the section 45 of the Sexual Offences Act 2003). The jury have the final decision on the age of the child in question.
What are the Defences for Possessing Indecent Images?
There are four different types of defences covered by the Criminal Justice Act 1988 which are reasons as to why the defendant can’t be found guilty of possessing indecent images. These include:
-The accused has a legitimate reason for possessing the particular images found. This covers legal defence of either party to whom it is an absolute necessity they have the images in relation to a current case. If they’re found to possess the images for an unreasonable amount of time however, this defence is void.
-The defendant hasn’t viewed the photographs/pseudo-photographs and had no reason to believe they were indecent. This could involve a hidden file being included in a download under a non-suspect title.
-The defendant obtained possession of the indecent photographs without request, nor did he retain them for an unreasonable length of time.
-The child in the photographs was married to/in a civil partnership with the defendant at the time of the possession and was aged 16 or over at the time of possession.
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What Factors Affect Sentencing?
The severity of the offence and, in turn, the extent of punishment depends on a number of aggravating and mitigating factors. The mode of trial is determined by grading the offence according to the Sentencing Council’s sentencing guidelines which depend on the nature of the material. The guidelines are graded level 1 to 5 with 5 being the most severe.
-Level one – suggestive images involving erotic posing but no sexual activity;
-Level two – non-penetrative sexual activities between multiple children or masturbation by a solo child;
-Level three – non-penetrative sexual activities involving both adults and children;
-Level four – Penetrative sexual activity involving one child, multiple children or both children/child and adult(s);
-Level five – Covers sadism or penetration of, or by, an animal.
The age of the child is now also an aggravating factor; if you’ve been accused of possessing indecent photographs the arresting officer should inform you that the age of the child/children can influence the sentencing of your offence. Indecent images containing child/children under the age of 13 are the most severe, followed by 13-15 year olds and then 16-17 year olds.
If convicted of the offence you can face up to ten years imprisonment and being a signatory on the Sex Offenders Register and face other peripheral Orders such as Sexual Offences Protection Orders (commonly referred to as SOPO’s) which can significantly restrict your life.
Being in alleged possession of indecent images is an incredibly serious offence and, if you’re found guilty, can sabotage your reputation and hinder future career opportunities. If you’ve been accused of being in possession of indecent images it’s highly advisable you seek professional legal advice from a sexual offence solicitor.
Here at Gray and Co Solicitors, we have extensive experience of handling such cases in a sensitive manner. We provide legal defence from the moment of arrest and throughout the trial. To speak to one of our legal experts contact us now on 01244 344299 or via our contact form.