It is generally accepted, and understood, that indecent images of children are unlawful. The definition of such images is equally as clear, with most people understanding that any sexualised photograph of a person under 18 years of age amounts to an indecent image. But more frequently we are seeing people being investigated for, or prosecuted over, possession of ‘prohibited images’. So what exactly is a prohibited image?
What are ‘prohibited images’?
Under the Coroners and Justice Act of 2009, it is an offence to possess any prohibited image. Such an image is described as one which is ‘pornographic’ and ‘grossly offensive, disgusting or otherwise of an obscene character’. It must also satisfy further criteria which is detailed within the Act itself. In short, the image must either concentrate on the genitalia of a child, or show a sexual act, whether it be masturbation, penetration by way of a penis or any other object, oral, vaginal or anal sex, or sex with an animal, which either actively involves a child, or a child is shown to be present during the act.
Prohibited images, however, cannot be photographs or pseudo-photographs (photos which have been amended or photo-shopped for example). They cannot show a real-life image of a person. They are, therefore, sketches, paintings, cartoons or any other unreal ‘depiction’ of a person.
It is interesting to note that in order for such an image to be deemed as ‘pornographic’ it must ‘reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal’. A meme, therefore, that is clearly generated for the purpose of humour alone, arguably would not fall under the definition of a prohibited image.
In the majority of cases involving prohibited images, the authorities’ attention has been drawn to the alleged perpetrator as a result of intelligence relating to indecent images being downloaded. This does not mean, however, that a prosecution will only follow if other indecent images were ultimately found, nor that prohibited images alone will not be investigated fully by the police.
One of the most frequently found example of prohibited images tends to be along the lines of Manga films and comic books, and similar styles of artwork. Such films often show sexually explicit images and scenes that are not ordinarily seen or expected in animation or ‘cartoons’, and, of course, assuming the characters involved are adult and of the same species, this is completely legal. Numerous examples have been found where the characters are very clearly under the age of 18, often pre-pubescent, and it is films and images of this nature that cause the greatest concern. Whilst arguably there are no ‘victims’ in these animations, such images are seen to ‘normalise’ and ‘publicise’ indecent images and the sexual abuse of children, which clearly goes against the ethos of the criminal justice system.
Do I have a defence?
There are defences to the possession of such images. As detailed above, the starting point is that it must be legally correct to identify any image found as ‘prohibited’. It must satisfy all of the criteria that is outlined by law, and cannot simply just be ‘offensive’ or be an image considered to be ‘pornographic’. The subject must clearly be someone under 18, or involve bestiality, which is often harder to establish when considering ‘artwork’ or cartoon characters.
Furthermore the same defences that apply to the possession of indecent images also apply to prohibited images. There may be a legitimate reason for the possession of such images (academic research for example) or the image may never have been viewed and therefore the suspect may have no knowledge whatsoever of its existence. Finally, if an image is received without there being any request or search for the same, assuming it is then deleted within a ‘reasonable’ time, it can amount to an ‘unsolicited image’ which again, provides a defence. Of course the more images that are received, and the longer they were retained for, the less a Court is likely to believe that they were unsolicited.
Can I go to prison for possessing a prohibited image?
The offence of possession of indecent images is an ‘either way’ offence. This means that they can be dealt with in the Magistrates’ Court, where the maximum sentence for one offence is six months, or in the Crown Court. The maximum overall sentence for an offence of this nature is three years, and therefore you can go to custody following a conviction for such an offence.
There are, however, various other sentences that the Court can consider following a conviction for an offence of this nature which do not involve immediate custody. It is important to make sure that you are properly represented if you should find yourself before the Court in respect of such matters as the right legal advice and support can make the difference between a prison sentence and a community based disposal.
Is it in the interests of justice to prosecute me for possessing a ‘cartoon’?
Of course, when determining whether to prosecute a case of prohibited images, the Crown Prosecution Service must not only consider whether there is a realistic prospect of conviction, but whether it is in the interests of justice to prosecute such a case. Of course a conviction for any offence of this nature has a potentially enormous impact upon the accused, not just by way of sentence, but also due to the possible social stigma attached.
In cases where indecent images have also been found a prosecution is far more likely. Dependent upon the number of images located, a charge for prohibited images is unlikely to make a material difference to any sentence imposed, but is certainly an aggravated feature and suggests a greater interest in sexual abuse on the part of the defendant. If no other images are found, however, it may well be that representations against a prosecution could be properly made on the basis of this second hurdle.
It is important to get specialist legal advice at the outset if you are under investigation for allegations of this nature. At Olliers we have an excellent, experienced team of lawyers who are able to offer specialist advice throughout every stage of such investigations, and who work hard to secure the greatest possible outcome.
Article written by Laura Baumanis
If you face investigation for prohibited images or indecent images please contact Ruth Peters on 0161 834 1515 or by email to firstname.lastname@example.org to discuss how Olliers can advise and represent you.