What constitutes ‘making’ indecent images?

Written 25th July 2021 by James Claughton

‘Making’ indecent images

Investigations into indecent images are increasing and are now commonplace. Following developments in case law, the CPS are now often seeking to charge suspects with ‘making’ indecent images under s.1 (1) (a) of the Protection of Children Act 1978. Previously suspects were more likely to be charged with possession of indecent images under s.160 Criminal Justice Act 1988.

Section 1(1) (a) of the Protection of Children Act 1978 includes “to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child”. The maximum sentence for ‘making’ an indecent image of a child is ten years imprisonment.

Following the case of R v Bowden [2000] 1 Cr. App. R. 438 ‘making’ indecent images is defined as follows “to cause to exist, to produce by action, to bring about” indecent images.

The court’s interpretation of ‘making’ indecent images is broad and the following can amount to making indecent images; opening an email attachment, downloading an indecent image, storing an image, and accessing a website where an indecent image “pops up”.

Opening an attachment or downloading an image

The cases of R. v. Smith; R. v. Jayson [2003] 1 Cr App R 13, CA, determined that a suspect may make an image when they open an attachment from an email which includes an indecent image/pseudo image of a child. A suspect may also be found guilty of ‘making’ an image by simply downloading such an image.

The prosecution must satisfy the court that the suspect deliberately and intentionally and with knowledge knew he was ‘making’ such an image. The prosecution do not need to establish that the individual intended to save the image on his computer.

Pop ups

The case R v Harrison [2008] 1 Cr. App. R. 29, established that accessing a pornographic website wherein an indecent image ‘pops up’ can constitute ‘making’ indecent images. The court held that it was the suspect who accessed the pornographic website in which an indecent image popped up who ‘made’ the image, rather than the person responsible for creating the website.

Suspects often say that a ‘pop up’ has appeared whilst watching legal pornography. For the prosecution to secure a conviction of a suspect, the court must be satisfied that whilst accessing such pornography that the suspect had knowledge that such pop ups would like contain indecent images.

Knowledge 

The suspect accused of ‘making’ an indecent image must have the knowledge that the image is/is likely to be an indecent image or pseudo image of a child. 

Therefore, in order for a suspect to be convicted, the prosecution need to satisfy the court that the suspect had the knowledge that opening an email attachment, downloading or accessing a website with pop-ups containing images would be likely to be an indecent image or pseudo image of a child. 

A suspect who downloads, opens an attachment, or where an image/pseudo image pops-up using a device including mobile phone, laptop or computers could be found guilty of ‘making’ indecent image. If the CPS can satisfy the court that this a suspect did this intentionally and with the knowledge that the image is or is likely to be an indecent image or pseudo image of a child, then the suspect could be found guilty under s.1. (1)(a) Protection of Children Act 1978.

Defences

There are limited defences available under s.1. (1)(a) Protection of Children Act 1978. A lack of knowledge is the main defence available to suspects. A suspect accused of ‘making’ an indecent image must have the knowledge that the image is/is likely to be an indecent image or pseudo image of a child. Therefore if the prosecution cannot satisfy the court that the suspect did not have such knowledge then the suspect cannot be found guilty.

Another issue is that the prosecution often instruct police officers to examine the devices (rather than experts). These officers often have minimal training and sometimes struggle with the accuracy of the categorisation of the images. In order to mitigate this, the defence can instruct a suitably qualified expert who can verify or challenge the accuracy of the categorisation of the images.

Contact our indecent images offences team

Article written by James Claughton. If you are under investigation for offences relating to indecent images please contact Ruth Peters and we can arrange a confidential discussion as to how Olliers can assist you at this time.

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