Understanding indecent images investigations

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Andrew Ford

October 12, 2022

Frequently, those who are being investigated for indecent images offences (and other online sexual offences) have never been subject to a criminal investigation before. They are therefore somewhat in the dark when it comes to what happens in the investigations. Add in to the mix the nuances of this area of law and it can be a stressful and confusing time for those subject to the investigation and their family.

Within this piece I intend to answer some of the commonly asked questions by those subject to investigations of this nature. I have intentionally not included references to the legislation as I am conscious that this means very little to those subject to such an investigation.

What is the age of a “child” for the purposes of indecent image offences?

For the purposes of indecent image offences, a “child” is defined as being under the age of 18. This is surprising to some given that the age of consent in England and Wales is 16.

What does “making” an indecent image mean?

People, including legal professionals, often confuse “making” with “producing”. Making means “to cause to exist, to produce by action, to bring about”. This can therefore include causing a digital file to exist on an electronic device ie. by downloading an image or even, potentially, by opening an attachment. There is a requirement for the suspect/defendant to have knowledge that a link/pop up/attachment contains, or is likely to contain, indecent images of children.

Categorisation of indecent images

  • Category A – These are the most serious images and depict penetrative sexual activity, sexual activity with an animal or sadism.
  • Category B – Images involving non-penetrative sexual activity.
  • Category C – Indecent images falling outside of category A and B such as provocative nude posing

When looking at sentencing there are aggravating and mitigating factors to consider within each of these categories, examples of these are provided below;

Aggravating factors

  • High volume of image
  • Moving images
  • Discernable pain
  • Age and vulnerability of the child depicted

Mitigating factors

  • Remorse
  • Age/lack of maturity of the defendant
  • Steps taken to address offending behaviour

Is accidentally viewing indecent images a defence?

It is a commonly raised defence for people to say that they accidentally viewed indecent images – this could be by clicking on a pop-up for example. Sometimes the evidence will support this, for example of there is an absence of other indecent images or relevant search terms. It is therefore important to consider the evidence in its entirety.

If one were to click on a pop-up, link or attachment not knowing that it would contain indecent images, or that it was likely to do so, then this would amount to a defence.

What is a sexual harm prevention order

A sexual harm prevention order is an ancillary order that is typically imposed alongside a sentence. It is a restrictive order that, in a case of this nature, targets and controls the internet and electronic device usage of the defendants. The imposition and duration of such an order is at the discretion of the sentencing tribunal.

As example term might be;

“The defendant is prohibited from using or possessing any computer or other device capable of accessing the internet unless the device is fitted with risk management software installed by the offender manager.”

It is possible to resist the imposition of such an order and negotiate the terms. This is usually important where a defendant’s occupation would be impinged by such an order.

What is the “sex offenders register”?

Many clients are confused by the term “sex offenders register”; specifically, what it is and what it entails. The answer is that this is simply a colloquial term for a notification requirement. There is no “list” available of convicted sex offenders.

Upon conviction for a relevant offence ,of which indecent images is one, a Court must impose a notification requirement on the defendant. This order required action from the defendant in relation to providing information to the authorities regarding their movement. Some example of when a defendant would be required to notify the authorities are as below;

  • If you change your name
  • If you change your normal home address
  • If you have a usual home address but stay at another address for 7 days or longer

You are required to first register within 3 days of the date of conviction/release from custody providing the police with a number of pieces of personal information.

Andrew Ford

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