Sharing Intimate Photographs or Film

Written 23rd April 2024 by Hannah Poole

Section 66B (1) – (4) Sexual Offences Act 2003

As of 31st January 2024, Section 188 of the Online Safety Act 2023 incorporated four new offences which were to be inserted as section 66B into the Sexual Offences Act 2003.  The introduction of these new offences and how they can be interpreted will undoubtedly prove to be a challenge particularly for those defending allegations of this nature.

Those offences include;

Section 66B (1)

(1) A person (A) commits an offence if

  1. A intentionally shares a photograph or film which shows, or appears to show another person (B) in an intimate state
  2. B does not consent to the sharing of the photograph or film and
  3. A does not reasonably believe that B consents
  4. An offence of this nature if likely to appear regularly particularly when the partiers involved need to bear no relation to one another and it simply covers the transfer of images from one to another.

There is no requirement for the Prosecution to prove the sharing of the photograph or film has been for any particular reason or motive.  To the effect, “appears to show” will allow the offence to be made out and that will be sufficient enough for the Prosecution to prove which in turn for those defending this type of offence makes it a difficult barrier to cross.

For consideration by the defence, the photograph or film that was taken, if this happened to be in a place to which the public or a section of the public had access to, that sharing does not constitute the offence under section 66B (1).  Each case arising will therefore need to be surveyed meticulously on a case by case basis.

Section 66B (2)

(2) A person A commits an offence if

  1. A intentionally shares a photograph or film which shows or appears to show another person (B) in an intimate state
  2. A does so with the intention of causing B alarm, distress or humiliation and
  3. B does not consent to the sharing of the photograph or film

To differentiate, a private intimate photograph must be the subject here but this in turn raises the question to what is defined as intimate and ought to be explored further in Section 66D (5).

Section 66B (3)

(3) A person commits an offence if

  1. A intentionally shares a photograph or film which shows or appears to show another person B in an intimate state
  2. A does so for the purpose of A or another person obtaining sexual gratification
  3. B does not consent to the sharing of the photograph or film
  4. A does not reasonably believe that B consents

With consideration to both section 66B (2) and (3), what motivates the offence, all depends on the sender of the photograph or film’s intention which will inevitably present uncertainties and challenges for both those defending and the Prosecution.

Threatening to Share Intimate Photographs or Film

Section 66B (4)

(4) A person A commits an offence if

  1. A threatens to share a photograph or film which shows, or appears to show, another person B in an intimate state
  2. A does so
  1. With the intention that B or another person who knows B will fear that the threat will be carried out or
  2. Being reckless as to whether B or another person who knows B will fear that the threat will be carried out

The challenge which will present itself here, the offence under section 66B (4) can be made out even if the object to that fear i.e. the photograph or film is fictitious.  Should the photograph or film exist, the Prosecution are not required to prove that the material sent appears to show a person (B) in an intimate state which leaves this open-ended for the defence in terms of how they can contest this.

Sentencing Guidelines intimate photograph offences

As it stands there are no sentencing guidelines or case-law for the offences outlined above.  It is inevitable that cases of this nature will crop frequently but what will prove vital will be turning to both section 66C exemptions and 66D for interpretation to each of the offences given the wide spectrum the four offences cover.

How can Olliers help if you are accused of intimate photograph offences?

At the pre-charge investigation stage, we can communicate with the police on your behalf. We can prepare representations in relation to either mitigation if the offence is admitted, or setting out your case if the offence is denied.

If you are charged with this offence, we can represent you at court, with one of our specialist solicitors presenting your case. We will advise you on the strength of the evidence and the sentencing guidelines in the context of your case. If you are entering a guilty plea, we will do our very best to ensure you receive the lowest sentence possible. If you are entering a not guilty plea, we will put forward your case to the court, ensuring you have the best chance possible of the desired outcome.

Need a solicitor for communication allegations?

Contact Olliers to arrange advice and representation in relation to intimate photograph allegations by completing the form below, telephoning 0161 8341515 or by emailing info@olliers.com.

Hannah Poole

Hannah Poole

Solicitor

Manchester

Head Office

London

Satellite Office

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