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Indecent Images of Children

Date Updated: January 2012
Title: Sexual Offences
Offence: Indecent Images of Children
Legislation:

  • Possession s160 Criminal Justice Act 1988.
  • Taking, distributing, publishing or possession with a view to distribute or show - s1 of the Protection of Children Act, 1978.

Mode of Trial: Either Way
Statutory Limitations & Maximum Penalty:

  • S160 CJA  on Indictment - 5 years
  • S1 PCCA - On Indictment 10 years
  • Summary Conviction - 6 months imprisonment and/or statutory maximum fine

Culpability & Harm

The levels of seriousness (in ascending order) for sentencing for offences involving pornographic images are: Level 1 Images depicting erotic posing with no sexual activity Level 2 Non-penetrative sexual activity between children, or solo masturbation by a child Level 3 Non-penetrative sexual activity between adults and children Level 4 Penetrative sexual activity involving a child or children, or both children and adults Level 5 Sadism or penetration of, or by, an animal.

Offences involving any form of sexual penetration of the vagina or anus, or penile penetration of the mouth (except where they involve sadism or intercourse with an animal, which fall within level 5), should be classified as activity at level 4.

Pseudo-photographs generally should be treated less seriously than real photographs.

Sentences should be lower than those involving photographs of children under 16 where:

  • an offender possesses only a few indecent photographs, none of which includes sadism or penetration of, or by, an animal; and
  • the images are of children aged 16 or 17; and
  • the photographs are retained solely for the use of the offender.

The fact that the subject of the indecent photograph(s) is aged 16 or 17 has no impact on sentencing starting points where the activity depicted is at level 5.

Starting points for sentencing for possession of indecent photographs should be higher where the subject of the indecent photograph(s) is a child under 13.

Registration requirements attach to a conviction for this offence dependent upon the age of the subject portrayed in the indecent photograph(s) and the sentence imposed.

Courts should consider making an order disqualifying an offender (adult or juvenile) from working with children regardless of the sentence imposed.

Courts should consider making an order for the forfeiture of any possessions (for example, computers or cameras) used in connection with the commission of the offence. 

Aggravating & Mitigating Factors

Aggravating

  • Images shown or distributed to others, especially children
  • Collection is systematically stored or organised, indicating a sophisticated approach to trading or a high level of personal interest
  • Images stored, made available or distributed in such a way that they can be inadvertently accessed by others
  • Use of drugs, alcohol or other substance to facilitate the offence of making or taking
  • Background of intimidation or coercion
  • Threats to prevent the victim reporting the activity
  • Threats to disclose victim's activity to friends or relatives
  • Financial or other gain

Mitigating:

  • A few images held solely for personal use
  • Images viewed but not stored
  • A few images held solely for personal use and it is established both that the subject is aged 16 or 17 and that he or she was consenting.


Relevant Sentencing Council Guideline (if any)

1. Guidelines effective for offences sentenced on or after the 14th May 2007.
2. The starting points are for an adult offender, of previous good character who was convicted after trial.

1. Guidelines effective for offences sentenced on or after the 14th May 2007.

Type/nature of activity: Offender commissioned or encouraged the production of level 4 or 5 images. Offender involved in the production of level 4 or 5 images 

Starting points: 6 years custody  
Sentencing ranges: 4 - 9 years custody

Type/nature of activity: Level 4 or 5 images shown or distributed  

Starting points: 3 years custody  
Sentencing ranges: 2 - 5 years custody

Type/nature of activity: Offender involved in the production of, or has traded in, material at levels 1 - 3

Starting points: 2 years custody  
Sentencing ranges: 1 - 4 years custody

Type/nature of activity: Possession of a large quantity of level 4 or 5 material for personal use only Large number of level 3 images shown or distributed  

Starting points: 12 months custody  
Sentencing ranges: 26 weeks - 2 years custody

Type/nature of activity: Possession of a large quantity of level 3 material for personal use Possession of a small number of images at level 4 or 5 Large number of level 2 images shown or distributed Small number of level 3 images shown or distributed  

Starting points: 26 weeks custody  
Sentencing ranges: 4 weeks - 18 months custody

2. The starting points are for an adult offender, of previous good character who was convicted after trial.

Type/nature of activity: Offender in possession of a large amount of material at level 2 or a small amount at level 3. Offender has shown or distributed material at level 1 or 2 on a limited scale. Offender has exchanged images at level 1 or 2 with other collectors, but with no element of financial gain  

Starting points: 12 weeks custody  
Sentencing ranges: 4 weeks - 26 weeks custody

Possession of a large amount of level 1 material and/or no more than a small amount of level 2, and the material is for personal use and has not been distributed or shown to others  

Starting points: Community order  
Sentencing ranges: An appropriate non-custodial sentence

'Non-custodial sentence' in this context suggests a community order or a fine. In most instances, an offence will have crossed the threshold for a community order. However, in accordance with normal sentencing practice, a court is not precluded from imposing a financial penalty where that is determined to be the appropriate sentence.

Relevant Sentencing Case Law

Decided before the guidelines R v Oliver may still be useful:

R v Oliver [2003] 2 Cr App R (S) 15 - Increased access to the internet has greatly exacerbated the problem in this area by making pornographic images more easily accessible, and increasing the likelihood of such material being found accidently by others who may subsequently become corrupted by it. This additional risk adds to the culpability of offenders who distribute material of this kind, especially if they post it on publicly accessible areas of the internet. Merely locating an image on the internet will generally be less serious than downloading it. Downloading will generally be less serious than taking an original film or photograph of indecent posing or activity.

The changes made to the dangerousness provision mean the rule in R v Terrell [2007] EWCA Crim 3079 is of less relevance.  HELD Downloading indecent images perpetuated the market or distribution networks and encouraged the making of further images. Children of whom such images had been made might be harmed by the knowledge of the perverted gratification which adults gained at looking at those images of them, even if they came to realise that as they grew older. The court thought however that the link between that harm and the possible downloading was too remote and the IPP provisions did not apply even through D was a repeat offender with a continuing interest in images of young boys.

R v McGreen [2010] EWCA Crim 2776 - D 58 no previous. Convicted of making indecent photographs of children and possession of extreme pornography. There were videos at levels 1 and 4 and images at level 5. After denying the offence D accepted responsibility in the PSR. He was accessed as a low risk of reoffending. The judge accepted his remorse was genuine. HELD: These are difficult sentencing exercises. There is a need to punish offenders who commit these offences but also a need to deal with them in a way which is likely to reduce, not leave untreated, their need for this kind of imagery. For the images of children 7 months not 9.

R v Wild [2002] 1 Cr App R (S) 37 D pleaded guilty to 15 counts of taking indecent images. The judge took into account he had sent them to others and this was admitted. HELD For it to be taken into account there had to be a separate count.

R v Harries Re F [2008] 1 Cr App R (S) 47 D 25 good character worked as a teacher. A pupil found a memory stick containing indecent images. There was a file sharing programme. There were 97 images at level 5, nearly  700 at level 4, over 500 at level 3, nearly 300 at level 2 and nearly 550 at level 1.  The images included a baby rape and a sadistic rape of a 5 year old. D was assessed as a medium risk of reoffending and a low risk of reoffending. He shoed genuine remorse and had lost his career. He pleaded to 21 counts of making indecent photographs or pseudo photographs of children and distributing. Given the position of trust he occupied 42 months for the distribution and an extended licence of 5 years.

R v Wolverson [2010] EWCA Crim 2132 - D pleaded guilty to three counts of distributing indecent images of a child. . D made a number of copies of level 4 video for a friend. HELD: The offences were strict liability. As they were limited in number and not committed for gain, the starting point should have been significantly less than the 3 years provided for in the guideline. However the sentence must reflect the fact he made a number of copies. Although he thought they were for his friends use he must have contemplated the risk of further distribution. 1 year.

R v Lee [2010] EWCA Crim 1783 - Possession of a very large number of images most at lower levels. Early plea justified 18 months.

For a non custodial see R v Rollason [2010] EWCA Crim 2776 (58 images spanning levels 1 - 4 full admissions and remorse). HELD The guidelines did not compel custody in this case. Even if it were so given his good character, remorse, plea and the small number of images it should no be 6 months. He had served a short sentence it was replaced with a 2 year community order.

For making images of his step daughter as well as possessing a large amount of other image see R v AM [2010] EWCA Crim 1516 HELD on a plea 3 years.

Ancillary Orders

  • Notification (S83 to 96 Sexual Offences Act 2003)
  • Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
  • Where the defendant is aged 18 or over he or she is automatically barred from engaging in regulated activity with children and with vulnerable adults. (Safeguarding Vulnerable Groups Act 2006). 

 Consider Also

  • Dangerous Offender provisions apply. Sentences for public protection must be considered.

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