Specialist defence solicitors for Indecent Images offences
Olliers’ team of specialist lawyers can assist you if you are under investigation for indecent images offences.
We have many years of experience of dealing with allegations of indecent images and understand that for many individuals it may be their first involvement with the criminal justice system. We understand how daunting the situation may be for you. We promise not to judge and seek to work together to achieve the best outcome for you. We aim to explain the process and procedures to you in clear and unambiguous language whilst at the same understanding the anxiety you face at the situation ahead.
What are indecent images?
With the advent of the internet and social media the nature of these offences has changed over the years and the courts now grade the images from Category A (most serious) to Category C and whether such images were simply in possession or were distributed. The sentences vary depending on the categorisation and number of images.
What are the categories of indecent images?
There are three categories imposed in relation to indecent images:
- Category A: Category A images are considered the most severe as they involve penetrative sexual activity.
- Category B: Category B images include explicit material that is non-penetrative sexual assault and explicit sexual activity
- Category C: category C images includes explicit material involving erotic posing, either indicatively or in a nudist environment
Click here to read more about categories of indecent images.
What is possession of indecent images?
Possession of indecent images means that the image(s) must be in the control or custody of the individual so that they are capable of accessing or in in a position to retrieve the images(s). In addition the individual must know that they possess the image or group of images on the relevant device(s). However, knowledge of the content of these image(s)is not required.
What does ‘making’ indecent images mean?
The CPS now often seek 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. Making is often misunderstood and doesn’t mean an individual ‘made’ or ‘took’ the original image. It involves the viewing of an image which results in the image being downloaded to the device on which it is viewed.
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.
‘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
- accessing a website where an indecent image “pops up”
Click here to read more about ‘making’ indecent images.
Opening an attachment or downloading an image
An individual may make an image when they open an attachment from an email which includes an indecent image/pseudo image of a child. An individual 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
Accessing a pornographic website where an indecent image ‘pops up’ can constitute ‘making’ indecent images. The court have 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.
Those under investigation may 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 the suspect had knowledge that such pop ups would like contain indecent images.
Knowledge
To be convicted of ‘making’ an indecent image an individual 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 a mobile phone, laptop or computer 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. 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/challenge the accuracy of the categorisation of the images.
Have you had electronic devices seized?
Few things can be more stressful for an individual than to have the several police officers attend at their home address armed with warrants for the seizure of computers, tablets and mobile phone. The police will have obtained a warrant for the seizure of equipment believed to contain indecent, prohibited or extreme pornographic material. They will be gathering evidence in connection with making and/or possessing indecent images of children and the possession of extreme pornographic material.
Attendance at a property is without warning and may take place in front of family members and be witnessed by neighbours and in some case by work colleagues. In some circumstances the police carry out an arrest, although not always. A person is frequently left in limbo, awaiting the outcome of the analysis of seized items – a process that can take between six and 12 months.
Sexual communication offences
It is quite common for those under investigation in relation to indecent images to often have allegations of sexual communication with a child against them as well. Olliers can assist in relation to these matters as well.
How can Olliers help me?
At Olliers we regularly speak to clients who have had computer equipment and phones seized by the police. On the one hand it is a waiting game but there is still a lot that can be done.
We always ensure that we make early contact with the police. We will confirm the anticipated timeframe for the investigation with the police and obtain an assurance that any further contact will be through Olliers, ensuring that there is no embarrassment caused by a police visit to home or workplace.
We can discuss with our clients the circumstances that may have led to their material being seized. We will give our clients an opportunity to discuss any anxiety they may feel. Many want to discuss worst case scenarios and we can advise on the different offences of possessing, distributing and producing indecent images. We can also explain the different categories of offences as well as current sentencing guidelines.
Instruction by third parties
We understand that for many clients who have recently been arrested or have devices seized they may be extremely apprehensive about discussing their case with a solicitor that they have never met. We understand how anxious you may feel and that investigations impact upon the wider family and not just the individual under suspicion. We are frequently contracted in the first instance by third parties on behalf of a loved one including by parents in relation to their children, a partner, another family member or close family friends.
We are happy to discuss how instructing Olliers can assist with third parties and to be instructed by third parties (subject to a client confirming they are content for this to happen). In cases where a client would prefer communication to be via a third party we are happy to facilitate this subject to receiving authority from a client to do so.
What can be done at this stage?
Olliers can assist with mitigating features, which can include;
- previous good character and/or exemplary conduct
- age and/or lack of maturity
- remorse
- mental disorder or learning disability
- evidence of steps taken to address offending or seek help
If a client recognises that they may need help we can point them in the direction of organisations that can help at a very early stage. If a client is charged and is ultimately advised to plead guilty, evidence of any early help sought can be powerful mitigation.
Will I be charged with an offence of indecent images?
In some circumstances, images may be of low level category and we may look to argue that a prosecution is not in the public interest. This may be particularly relevant to a case where a client may have sought help for a problem and where there is other, powerful mitigation. The best time to do this is before charge but it can also be done after charge.
I have already been charged with indecent images
If you have already been charged with indecent images or received a postal requisition we advise that you seek advice and representation from a specialist solicitor on an immediate basis. We can obtain the initial evidence from the prosecution and advise you immediately in relation to the strength of the evidence and sentencing powers available to the court.
Olliers Solicitors cover all courts across England and Wales.
Costs
If you have had computer equipment seized and are under investigation for indecent images offences, there is only extremely limited public funding available. However this is a crucial time and action taken at this stage can make a fundamental difference to the outcome. Our lawyers try to be as transparent as possible in relation to fees. We will charge fees based upon an hourly rate as agreed from the outset and provide estimates as to total likely costs. These estimates will be regularly updated. Alternatively, we may agree a fee for representing you either in respect of a particular stage of a case or for the case in its entirety. We do not undertake such cases on a legally aided basis.
Some Frequently Asked Questions
An investigation concerning indecent images can be a lengthy process, causing worry and stress to both the individual under investigation and their family. At the outset of an investigation, you would usually expect the police to attend at your address with a search warrant and seize those devices which they wish to analyse for indecent material. They may arrest you and take you to the police station for interview or invite you to a voluntary interview on a set date. It is important to remember that you are entitled to legal advice at this stage and may wish to consult a solicitor.
Once devices have been seized, it can take a while for them to be analysed and for the results to be reviewed by the police. It may be that the police wish to re-interview you further down the line if more evidence has become known. For a charging decision to be made the police will send their file to the Crown Prosecution Service who will decide whether:
– There is a realistic prospect of you being convicted; and
– Whether it is in the public interest to prosecute.
If you, or a close friend or family member, has been arrested or charged in connection with indecent images offences, you will inevitably be feeling stressed and anxious about what is to come. You may also be concerned about how your friends, family and colleagues will perceive you and feel afraid that the nature of your situation will become public.
The details of the investigation against you are unlikely to come to light until you have attended an interview. This is because the police will want to question you under caution and ensure that a record of your answers is obtained. All police interviews are recorded so that a transcript/tape of the evidence can be produced.
It is essential that you engage the services of an experienced indecent images solicitor to assist you throughout the investigation. Engaging them at an early stage is imperative, as they will then be on board to protect your interests and liaise with the police on your behalf. They will be able to provide the necessary expertise and support from the outset and monitor the investigation on your behalf. They can also provide guidance as to how best to deal with your case and the steps you can take to mitigate your circumstances.
Having the police search your home and seize your property can be a particularly stressful experience. They can search your home if they have obtained a search warrant authorised by the court.
It is common that home searches will be conducted as part of an indecent images investigation. During these searches, devices such as mobile phones, laptops, computers, tablets and hard drives may be seized. The police will then forensically examine these devices to recover any evidence of indecent material upon which they can build their case. They may also request access to email accounts and social media accounts which may have been used to view and share indecent images.
It is possible for a person found guilty of indecent images offences to go to prison. This does not necessarily mean that if you are found guilty, you will definitely face time in custody. There is in fact a range of options available to the court when sentencing someone who has been found guilty. This range will depend on what category the offence falls in to i.e. the level of seriousness of the material found.
On this basis, the court will use a set of guidelines to determine an appropriate sentence. They will take in to consideration both aggravating and mitigating factors which will differ depending on each individual case. Aggravating factors, which can adjust the sentence upwards, may be that the individual has relevant previous convictions, has abused a position of trust or has a large volume of images. On the other hand, mitigating factors could be that the individual has shown genuine remorse and has taken steps to address their behaviour, all of which can contribute to a reduction of sentence.
The least serious offences i.e. possession of category C images, are usually dealt with by way of a community order. Otherwise, those of a more serious nature are typically dealt with by custodial sentences, which can range from a number of weeks, for example 26, to a starting point of 6 years’ for the most serious offences. It is important to note that the court will look at each case on an individual basis, taking in to consideration an person’s background, personal circumstances and any applicable aggravating and mitigating factors.
If you have been released under investigation, it means that you have been released from police custody without charge but the investigation the matter that you were arrested for is still ongoing. You have no bail conditions or date to attend the police station but you may, eventually, still be charged with an offence.
There is no time limit for being under released investigation by the police. You will know that you are no longer ‘released under investigation’ if you receive a notice of no further action or alternatively a notice that you are to be charged with an offence. A solicitor may be able to assist you with making enquires with the police as to the progress of their investigation and/or make representations that you should not be charged.
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 or accessing a website where an indecent image “pops up”.
Contact our indecent image offences lawyers
Please contact Ruth Peters if you would like to arrange a confidential discussion as to how Olliers can assist you if you are under investigation for indecent images offences.
