Written 1st April 2020 by Lily Grundy

Over recent years, there has been a surge in the prosecution of sexual offences, including offences relating to possessing, downloading and distributing indecent images. According to the Office for National Statistics, there were 2,881 “obscene publications and protected sexual material” offences recorded by the police between April 2003 and March 2004, a category of offences which includes the making and distribution of indecent images of children.

In contrast, between April 2018 and March 2019, there were nearly 24,000 offences recorded; more than an eight-fold increase over the space of only 15 years. The growth in these types of offences has shed light on the complexities involved in prosecutions of this kind and the associated evidentiary issues. Such growth is largely due to the development and increased use of the internet alongside shifting public attitudes towards sexual offences.

There are potential consequences associated with receiving unsolicited images over instant messaging/social media platforms. With the rising popularity of electronic messaging, pictures and videos can be easily exchanged with either individuals or whole groups of people. An individual could therefore receive an indecent image of a child without requesting it, given that the sender has the ability to share any content they wish. The recipient is then at risk of committing an indecent images offence, despite the fact that they have expressed no desire to possess, distribute or show the image to another.

The law in relation to indecent images

There are two pieces of legislation which create offences for possessing indecent photographs, or pseudo photographs of children (anyone under the age of 18):

Section 1 of the Protection of Children Act 1978 (PCA 1978)

This makes it an offence for a person to possess any indecent photograph or pseudo photograph of a child with a view to it being distributed or shown by himself or others.
This is less relevant here given that we are considering the position of someone who has received an indecent image of a child without requesting it.

Section 160 of the Criminal Justice Act 1988 (CJA 1988)

This makes it an offence for a person to possess any indecent photograph or pseudo photograph of a child (images made by computer graphics, or otherwise, which appear to be photographs.)

Defences to possession of indecent images

There are three defences which apply to an offence committed under section 160 of the CJA 1988.

A person would have to prove one of the following:

That he has a legitimate reason for having the photograph or pseudo photograph in his possession;
That he had not himself seen the photograph or pseudo photograph and did not know, nor had any cause to suspect, it to be indecent; or
That the photography or pseudo photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

The defence set out at point 3 above is particularly relevant to indecent images received within a group chat. No clear definition of ‘prior request’ is given in the CJA 1988 meaning this is determined as a matter of evidence. The court may look at the series of messages sent before the indecent image, or, if there are no messages, any contact made outside of the instant messaging app which constitutes a request (note that a request can be ‘made by him or on his behalf’).

On a practical level, it would be necessary to delete the image as soon as possible, ideally immediately after it has been received. It is important to remember to check the camera roll of an electronic device as often images are saved automatically to this. An individual may think that they have deleted an image to later find that it had been automatically saved elsewhere. This could then create problems if the image has been kept for an ‘unreasonable time’, a matter of fact to be decided by the jury in court.

Note than an offence committed under section 160 is an either way offence. This means that it can be dealt with in either the magistrates’ court or the crown court depending on the level of seriousness. If dealt with in the magistrates’ court, a maximum term of 6 months imprisonment can be imposed and/or a fine. Alternatively, if dealt with in the crown court, a maximum term of 5 years imprisonment can be imposed and/or a fine.

What do I do if I receive an indecent image?

The law surrounding indecent images is complex. Individuals who finds themselves caught up in such matters can find it hard to cope with. Once suspicion has been aroused, it can be difficult for individuals to extradite themselves from it and unearth the true factual circumstances of a case. This is especially true of cases, for example, involving group chats, accidental viewings and shared computers.

It may be that you have received an indecent image within a group chat, whereby another member has sent it to all of the members of the group. If the group has a high number of members, the sender of the image may be unknown to you. It is important to remember in these circumstances that you have not deliberately sought or searched for these images, nor have you shared them with others. You may not have actually ‘clicked’ on the image itself nor attempted to view it. Lack of awareness in these circumstances is also a defence if you can prove that you did not know, nor have any cause to suspect, that the image was indecent.

If you are aware of unsolicited images being shared in a group chat of which you are a member, you may want to consider removing yourself from this group. This will ensure that you avoid receiving any indecent material which you have not requested. It is then essential to check your device for any images that may have been automatically stored.

It is important to seek legal advice early on in the process if you are being investigated for indecent images offences. If you are concerned this, please do not hesitate to contact us at Olliers Solicitors where we can provide specialist knowledge and expert advice.

If you are under investigation in relation to an allegation of possession of indecent images read here for more information.