The short answer is yes. Under the Protection of Children Act 1978 and the Criminal Justice Act 1988, taking, possessing, or sharing sexualised images of any person under the age of 18 is a criminal offence. This is true despite the age of consent for having sex being just 16, and unfortunately the fact that the young person either consented to the pictures being taken, or took the pictures themselves, is not a defence.
In the UK it is not only an offence to take an indecent image of a minor, but also to possess one or to distribute it. These cases are more often than not dealt with severely by the Courts, with those guilty of such offences being made subject to notification requirements, in some cases Sexual Harm Prevention Orders also, and being at risk of a custodial sentence being imposed. Whilst youths are usually dealt with more leniently by the Courts, the impact of any such conviction upon their future is undeniable.
That in itself is extremely concerning for anyone with responsibility for a young person. The reality is that for many teenagers, sharing explicit pictures of themselves has become a normal means of expressing themselves sexually . Sexting has become a normal part of life for a large proportion of youths. A report from the NSPCC has indicated that 14% of young people in the UK have taken a naked or partially naked photo of themselves; it went on to say that a vast number of these images were then forwarded to one or more people. Most youths doing this do so with no knowledge that they are actually breaking the law, and no thought to the implications this could have for them.
Although there is a lot of criticism of the law in this area -with people arguing that it is outdated and entirely unfit for purpose -there has been an increase in police investigations around sexting, from only 183 a month in 2017 to 241 by August 2019. 6,499 of these cases related to children under the age of 14.
What can be done to prevent a prosecution?
The police were issued with guidance in 2016 highlighting how offences of this nature should be dealt with. It was noted that, in many cases, sending experienced first responders, safer school officers or neighbourhood teams can be a better way of dealing with the issue, rather than arresting and criminalising youths. They can, and should, consider interviewing youths voluntarily, rather than arresting them. An arrest would result in details of the allegations, regardless of the outcome, remaining on the youth’s police record Even if a matter is not prosecuted, an enhanced DBS check in the future could result in information relating to the investigation being disclosed to prospective employers. The police therefore need to be mindful of this when investigating ‘sexting’ amongst youths.
In order to secure a charging decision, the police must refer their file to the Crown Prosecution Service. The CPS must look not only at the strength of the evidence and whether there is a ‘realistic prospect of a conviction’ (a test which is almost always satisfied by offences of this nature), but at whether it is in the interests of justice for the case to proceed to Court. The reality is that by prosecuting youths for sending of images of themselves, the law is criminalising the very people the legislation seeks to protect. There is a strong argument, therefore, to say that the majority of these cases are not in the public interest to pursue.
What should I do if my child is being investigated by the police?
It is important to seek legal advice as soon as you become aware that there is a suggestion that you or your child have been involved in the taking or sending of indecent images. At Olliers we pride ourselves on our pro-active approach and our experienced team can assist with:
- Urging the police to conduct any interview on a voluntary basis;
- Taking steps to avoid an arrest being necessary;
- Offering support and assistance throughout;
- Making representations against a charge being authorised;
- Drafting post-charge representations against the continuance of a prosecution;
- Getting the best possible outcomes for cases that have to proceed to Court;
- Applying to the police to have evidence relating to an arrest removed when no further action was taken;
- Advising re the ramifications of a caution or conviction
Contact our indecent images team
Article written by Laura Baumanis.
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