Indecent and Prohibited Images of Children
- Indecent Images of Children – The Offences
- Indecent Images of Children - The Defences
- Prohibited Images of Children
- Issues of Jurisdiction
- Selection of Charges
- Child Abuse Image Database (CAID)
- Streamlined Approach to Low-Risk Offenders
- Indictment Guidance
- Sentencing and Ancillary Orders
- Public Interest and Out of Court Disposals
- Handling Exhibits
The two main offence creating provisions are:
- Section 1 of the Protection of Children Act 1978 (PCA 1978); and
- Section 160 of the Criminal Justice Act 1988 (CJA 1988)
Both provisions create offences in respect of:
- photographs or pseudo-photographs of
- A child.
This is an issue for the tribunal of fact to decide in accordance with recognised standards of propriety (R v Stamford  56 Cr. App. R. 398).
Whilst members of a jury are representative of the public, it remains essential for them to consider the issue of indecency by reference to an objective test, rather than applying their wholly subjective views of the matter (R v Neal  EWCA Crim 461).
The issue is not to be decided by reference to the categories of image identified for sentencing purposes.
The age of the child is a relevant consideration (R v Owen (1988) 86 Cr. App. R. 291). The Judge held that “indecent” qualified the words “photograph of a child”
The circumstances in which the photograph came to be taken and motive of the taker are not relevant; it is not the defendant's conduct which must be indecent but the photograph of the child which results from it (R v Graham-Kerr (1989) 88 Cr App R 302; R v Smethurst  1 Cr. App. R. 6).
Photographs and Pseudo-photographs
Section 7 PCA 1978 defines photographs and pseudo-photographs. See this section for the variety of images that are caught by these terms. These definitions also apply to offences under section 160 CJA 1988 (s.160(4) of the CJA).
See guidance on Prohibited Images, below, for the types of material that are not caught by the provisions under the PCA 1978.
A child is a person under 18 (s.7(6) of the PCA).
A person is taken to have been a child at any material time "if it appears from the evidence as a whole that he was then under the age of 18" (s.2(3) of the PCA; s.160(4) of the CJA).
The age of a child is a finding of fact for the jury to determine. Expert evidence is inadmissible on the subject as it is not a subject requiring the assistance of experts (R v Land  1 Cr. App. R. 301).
If the "impression conveyed by a pseudo-photograph is that the person shown is a child" then it shall be treated for the purpose of the offence as showing a child. This is so where the predominant impression is to this effect notwithstanding some of the characteristics shown are those of an adult (s.7(8) of the PCA).
Section 1 of the Protection of Children Act 1978 is an either way offence punishable on indictment with a maximum of 10 years imprisonment.
There are four sub-paragraphs under section 1(1) describing the conduct that is illegal in respect of indecent images of children.
Section 1(1)(a) to take, or permit to be taken or to make.
These words are given their natural and ordinary meaning. ‘Make’ is defined as “to cause to exist, to produce by action, to bring about” (R v Bowden  1 Cr. App. R. 438).
This section requires that there must be a deliberate and intentional act, done with the knowledge that the image is, or is likely to be, an indecent photograph or pseudo-photograph of a child
“To make” has been widely interpreted by the courts and can include the following:
- Opening an attachment to an email containing an image (R v Smith  1 Cr. App. R. 13)
- Downloading an image from a website onto a computer screen (R v Jayson  1 Cr. App. R. 13)
- Storing an image in a directory on a computer (although depending on where that image is stored, this could also be a possession charge under s. 160 CJA 1988) (Atkins v DPP; Goodland v DPP  2 Cr. App. R. 248)
- Accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism (R v Harrison  1 Cr. App. R. 29)
Section 1(1)(b) Distribute or show any such photograph
- A person is to be regarded as distributing indecent photographs or pseudo-photographs if he parts with possession of it to, or exposes or offers it for acquisition by, another person (s.1(2) of the PCA 1978).
- The placing of an order in response to an advertisement offering the supply of indecent photographs of children did amount to incitement to distribute such images under common law despite the willingness of those making the offer to supply them (R v Goldman  EWCA Crim 1684). This was so even if the order was processed automatically by means of a computer for such computers merely facilitated the operation of a business by human beings (R (on the application of O'Shea) v Coventry Magistrates Court  EWHC 905 Admin). The same would apply now for offences under sections 44 and 45 of the Serious Crime Act 2007.
- In R v Price  EWCA Crim 3363 the Court of Appeal was "quite satisfied" that it was Parliament's intention to create offences of strict liability under this sub-paragraph subject to the statutory defence under section 1(4)(b) of the PCA 1978 (which applies to s.1(1)(b) and (c) only). It should be noted that the suspect does have to be in possession of the images to be able to distribute or show them. ‘Possession’ does have a mental element that needs to be proved.
Section 1(1)(c) Have in his possession any such photograph with a view to it being distributed or shown by himself or others.
- "Possession" involves both a physical and mental element. The physical element is that a person must have custody and control of the photographs in question. The mental element is knowledge – a defendant must knowingly have custody and control of the photographs. It is not necessary for the prosecution to prove that the defendant knew photographs in his / her possession were indecent photographs of a child. See section on possession under section 160 of the CJA 1988 for more detail.
- The words "with a view to" requires that the distribution or showing must be at least one of the suspect’s purposes, but not necessarily his primary purpose. In R v Dooley  1 Cr. App. R. 21 a member of a peer-to-peer file sharing network downloaded images from the network and then placed them in a folder on his computer from which they could be accessed by other members. Mere knowledge that others could or were likely to see them was not enough. He was only guilty if at least one of the reasons for him placing them there was for that purpose.
- A person who stores indecent photographs on his computer and enables others to view them via the internet by the provision of a password does possess them with a view to them being shown (R v Fellows and Arnold  1 Cr. App. R. 244).
- The anticipated showing must to be to a person(s) beyond the possessor of the photographs (R v T (1999) 163 JP 349).
Section 1(1)(d) Publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows any such photographs or intends to do so.
- The statutory defence under section 1(4)(b) of the PCA 1978 does not apply. Therefore, by analogy with section 1(1)(a), it must be proved that the defendant published the advertisement intentionally and knowingly.
Section 160 of the Criminal Justice Act 1988 is an either way offence punishable on indictment with a maximum of five years' imprisonment.
Possession is not defined in the Criminal Justice Act 1988, the Protection of Children Act 1978 or the Coroners and Justice Act 2009. Its definition has been developed through case law.
The most recent case and authority on possession is R v Okoro (No. 3)  EWCA Crim 19. The case clarified and affirmed previous case law in relation to the issue of possession. The test to determine possession was set out in the following terms:
- The images must be in the custody or control of the suspect i.e. so that they are capable of accessing, or in a position to retrieve the image(s); and
- The suspect must have known that they possessed an image or group of images on the relevant device/devices. Knowledge of the content of those images is not required – the statutory defences deal with that.
The following considerations are particularly relevant in relation to deleted images (R v Porter  1 Cr. App. R. 25; R v Leonard  2 Cr. App. R. 12):
- Where the photos are stored on the device
- The means by which they could be retrieved in the sense set out above
- Whether the suspect has the wherewithal to retrieve them i.e. the technical knowledge/software/equipment required to do so.
In cases involving live-streaming, once an image or video has been viewed, there is no forensic trace left on the device used to view that image or video. A person who has merely viewed an image or video will not have retained any copy of it on their device. Nonetheless, it is submitted that they have ‘made’ an image by causing it to be displayed on that device. See further R v Smith and Jayson  1 Cr. App. R. 13, where the court accepted that causing an image to be displayed on a computer screen amounted to making it.
In cases involving child sexual abuse, there are generally three types of methods used. Briefly, these are:
- Overseas Pay-per-View
- 'Chat Rooms'
- Self-produced by children
This usually involves an organised network. Abuse of children is carried out abroad and is streamed by offenders in the UK. This type of abuse is usually for financial gain – either by organised criminal networks and/or impoverished families. Prosecutors should consider obtaining suspects’ bank statements as small and irregular amounts paid frequently by UK-based customers to recipients in developing countries tend to be the pre-emptive signs of this type of offending.
The use of chat rooms can also have cross-jurisdictional elements but can also just be UK based. This is where specific ‘rooms’ or ‘conferences’ are set up online for the purposes of showing child sexual abuse. Offenders can join the rooms, be invited to them or search them out. Abuse can be streamed live or involve pre-recorded abuse being shown. Often offenders can interact with each other in a variety of ways including directing the manner of the abuse.
Self-produced by children
This form of offending is becoming more prevalent. Offenders are often able to exploit children who stream images between their peers for ‘likes’. They are then able to contact these children and direct forms of abuse, or distribute these images to other offenders.
As can be seen, there are a variety of ways in which live-streaming is used to facilitate child sexual abuse and it is suggested that following the rationale in Smith and Jayson, it is likely that all cases involving live-streaming will involve the ‘making’ of an indecent image (as long as the other elements of the offence are made out).
In addition there may be other offences that prosecutors should consider. It is clear that offenders could fall into three categories:
- An offender who shares and distributes images
- An offender who actively participates in the live-streaming either by conversation or by sharing pictures of themselves reacting to the material; and
- An offender who views the live-stream feed but does no more than view the images, not participating or sharing in any other manner.
Possible offences (although this is not an exhaustive list) committed could include ‘publishing’ or ‘distributing’ indecent images (as opposed to making) under s. 1 PCA 1978 and offences under sections 10 and 14 of the Sexual Offences Act 2003 (causing/inciting or arranging/facilitating a child sex offence). Careful consideration needs to be given to the most appropriate offence that most accurately reflects the criminality that has taken place and the evidence obtained.
If there is evidence that a person, by viewing live-streamed serious sexual abuse, has encouraged the commission of a sexual offence, prosecutors should consider sections 44 and 45 of the Serious Crime Act 2007 (doing an act intentionally encouraging or assisting an offence – s44 / doing an act capable of encouraging or assisting an offence, believing such an offence would take place, and that his act would encourage or assist it – s45).
In relation to whether passively viewing live-streamed abuse, with nothing more, is capable of amounting to encouraging or assisting an offence, the cases of R v Coney (1882) 8 QBD 534 and R v Mason and others  Crim LR 325 are helpful. Without more, it is unlikely that passive viewing will amount to an offence under section 44 or 45 of the Serious Crime Act. However, each case should be considered on its own facts and merits – in practice, each case is likely to have evidence indicating towards or against a person watching encouraging or assisting, for instance, the “chatroom” in which this has occurred is likely to be deliberately set up, a select audience is likely to be sought by the abuser and there may be some response or interaction between abuser and audience. An offence of ‘making’ an indecent image may, however, still be appropriate.
‘Pre-recorded’ material that is subsequently streamed or distributed would still constitute ‘making’ for the purposes of these provisions, as there is no distinction as to whether it is ‘live’ or not. However, for offences under the Sexual Offences Act 2003 and the Serious Crime Act 2007 the fact the material was pre-recorded may make a difference as to whether the offence is made out.
Where the sexual offence(s) encouraged are outside of England and Wales the Serious Crime Act 2007 provides that this may be prosecuted provided the Attorney General’s consent is obtained (Schedule 4). The conscious providing of an audience for sexual offending may amount to encouragement.
In addition, it should be noted that sections 47 to 50 of the Sexual Offences Act 2003 also deal with child sexual exploitation and the interpretation of this. Section 51 of the Act makes specific reference to ‘streamed or otherwise transmitted’ material. Prosecutors may also want to consider these provisions when dealing with live-streamed abuse of children.
Section 3 of the PCA 1978 provides that, where a body corporate is guilty of any offence under the PCA 1978, then so will any director, manager, secretary of other officer of that body or anyone purporting to act in any such capacity if the offence occurred with the consent or connivance of or was attributable to any neglect on any such person's part.
Statutory defences to s. 1(1) PCA 1978 are to be found at sections 1(4), 1A and 1B of the PCA 1978.
The defences to s. 160(1) CJA 1988 are to be found at sections 160(2) and 160A of the CJA 1988.
- Legitimate Reason
- 'Lack of Awareness'
- Marriage and other relationships
The defence is made out if the defendant proves that he had a legitimate reason for the conduct in question. This is a legal rather than an evidential burden (R v Collier  1 Cr. App. R. 9).
"Legitimate reason" is not defined in either Act. In Atkins v DPP; Goodland v DPP  2 Cr. App. R. 248 it was held that it is a pure question of fact in each case. In cases where it was maintained that the conduct was part of legitimate research, the central question will be whether the defendant was essentially a person with an unhealthy interest in indecent images acting under the pretence of undertaking research or, on the other hand, was a genuine researcher who had no alternative but to have such unpleasant material in his possession. The judgment continued to say that the courts "are plainly entitled to bring a measure of scepticism to bear upon such an enquiry; they should not too readily accept that the defence is made out".
‘Lack of Awareness’
The defence is made out if the defendant proves that he had not himself seen the photographs in question and did not know nor have any cause to suspect them to be indecent. This is a legal burden (R v Collier  1 Cr. App. R. 9).
The defence applies if an absence of knowledge and a cause to suspect is proved in respect of either the indecency of a photograph or the fact its subject matter is a child (Collier). This is perhaps not as the defence would be read literally. In Collier the defendant knew he was in possession of a CD containing indecent material featuring adults. He did not know nor had cause to suspect that there were "trailers" at the end of the CD advertising other products which included indecent images of children. The Court of Appeal held that his lack of awareness in respect of the inclusion of children on the CD enabled him to rely on the statutory defence despite the fact he knew due it was indecent.
Marriage and Other Relationships
The terms of the defence vary for each provision of the PCA 1978 and CJA 1988 but its common core requirements are:
- The defendant has to prove that (a) the photograph was of a child aged 16 or 17 and (b) at the time of the conduct in question he and the child were married or civil partners or lived together in an "enduring family relationship". This is a legal burden.
- The photograph showed the child alone or with the defendant but nobody else.
If the above applies then the defence is made out for conduct under section 1(1)(b) of the PCA 1978.
For the other three forms of conduct to which the defence may apply (ss. 1(1)(a) and (c) of the PCA 1978 and s. 160(1) CJA 1988) there is an additional requirement that sufficient evidence is adduced to raise an issue (i.e. for the defendant to satisfy an evidential burden) as to:
- Whether the child consented to the defendant's making, taking or possession (as the case may be) of the photograph or whether the defendant reasonably believed she consented;
- Additionally, in the case of section 1(1)(c) only, whether the defendant possessed the photograph with a view to it being distributed or shown to anyone other than the child.
In these situations the defendant will be not guilty unless the prosecution proves (to the criminal standard of proof) those matters on which the defendant has raised an issue i.e. that the child did not consent and the defendant did not reasonably believe that he / she did and, in the case of section 1(1)(c), that the intended audience was to extend beyond the child him/herself.
The provisions are complex, not least because they involve a mix of legal and evidential burdens. Careful directions to the jury will be required.
The defendant may rely on evidence adduced by the prosecution to satisfy the evidential burden. It might, for example, be discharged by inviting to jury to draw an inference from the child's demeanour in the photograph itself.
In R v M  EWCA Crim 2752 the defendant had a "one-night stand" with a 17 year old. They engaged in consensual sexual activity after which he took photographs of her naked, resulting in two charges of making an indecent photograph of a child. His defence was that he reasonably believed she was over 18 and had consented to the photographs. It was argued that it was irrational that a girl aged 17 years should be capable of consenting to sexual relations but incompetent to consenting to such acts being photographed unless in a marriage, civil partnership or enduring family relationship. This amounted to a breach of Articles 8(2) and 10(2) of the ECHR and the statutory defence should be read to include "one night stands".
These arguments were rejected. The Court held that the need to protect children from sexual exploitation was a "pressing social need". Whilst the defendant could engage in sexual activity with a 17 year old girl, he had no right to make her the subject of "pornography" [as the Court stated]. The United Nations Convention of the Rights of the Child and the EU Framework Decision 2004/68/JHA prescribed fundamental rights for children and the provisions of the PCA 1978 were no more than necessary to accomplish the objectives of these international obligations.
Section 1B Protection of Children Act 1978 – Criminal Proceedings and Investigations
This defence is applicable to an offence under s. 1(1)(a) PCA 1978 only.
The defence is available where a person "making" an indecent photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. This defence will also apply to defence solicitors, counsel, police officers, prosecutors, Judges and others who have to deal with indecent images of children in the course of their work etc.
The CPS and the then Association of Chief Police Officers (ACPO), now the National Police Chief's Council (NPCC), signed a Memorandum of Understanding which provides guidance to those who have a legitimate need to handle indecent images of children by setting out how the defence provided in section 1B of the PCA 1978 may be applied. The Memorandum provides guidance to the Police Service, CPS and others involved in the internet industry, in order to create the right balance between protecting children and effective investigation and prosecution of offences.
Section 160(2)(c) Criminal Justice Act 1988 - Unsolicited Photographs
This defence applies to s. 160(1) CJA 1988 only.
The defence is made out if the defendant proves that the photograph in question was sent to him without any prior request by him or on his behalf and that he did not keep it for an unreasonable time. By analogy, the burden is a legal one (R v Collier  1 Cr. App. R. 9).
The Act does not prescribe what constitutes a 'prior request' nor does it define the parameters of 'unreasonable time'. In particular, it is not clear whether time runs from when the image was received by the computer, or when it was known by a defendant to have been received. Consistent with the necessary mental element, the latter is likely. The issue of reasonableness is a matter for the jury to decide on the facts of any particular case.
Section 62 of the Coroners and Justice Act 2009 created the offence of possession of a prohibited image of a child. It is triable either way and punishable on indictment with a maximum of 3 years imprisonment.
- This offence is targeted at non-photographic images; this includes computer-generated images (CGI’s), cartoons, manga images and drawings.
- The offence specifically excludes indecent photographs, or pseudo-photographs of children, as well as tracings or derivatives of photographs and pseudo-photographs.
- Section 62(2) to (8) sets out the definition of possession of a prohibited image of a child. ‘Possession’ is to have the same meaning as s. 160 CJA 1988 and s.1 PCA 1978.
- The Act defines a ‘pornographic image’ as one which must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.
- Even if an image is pornographic, it will not be a prohibited image unless it also satisfies all the other aspects of the offence.
Grossly offensive, disgusting or otherwise of an obscene character (section 62(2)(c))
‘Grossly offensive, disgusting or otherwise of an obscene character’ are not intended to be read as three separate concepts. “Grossly offensive” and “disgusting” are examples of “an obscene character” and not alternatives to it. They are drawn from the ordinary dictionary definition of ‘obscene’ and are intended to convey a non-technical definition of that concept.
Section 64 Coroners and Justice Act 2009 provides the defences to a charge under section 62(1) of the Act.
These defences are the same as some of those under the PCA 1978 and CJA 1988:
- Legitimate Reason
- Lack of Awareness
- Unsolicited images
Please refer to the guidance above for details of these offences.
There is a further defence for this provision, in relation to classified works
Works classified by the British Board of Film Classification (BBFC)
Section 63 of the Act provides an exclusion from the offence for works classified by the British Board of Film Classification, (the BBFC), which is the designated authority under the Video Recordings Act 1984 (as repealed and revived by the Video Recordings Act 2010).
Subsection (2) defines the type of material that is excluded. An excluded image is one that forms part of a series of images contained in a recording of the whole or part of a classified work. In deciding whether an image does form part of such a series, subsection (5) clarifies that any alteration due to a technical defect, inadvertence or inclusion of extraneous material such as an advertisement is to be disregarded.
However, this exclusion for classified films does not apply if an image or images have been extracted from one or more classified films and the reason for their extraction appears to be solely or principally for the purposes of sexual arousal. This would be the case, for example, where a new video work has been created consisting of images from classified films. This question is determined by the same test as is set out in section 62, that is, by consideration of the image itself and the context in which it appears.
The exemption does not apply to films shown in cinemas (as opposed to the versions of such films which are classified for DVD or video release). The exemption ensures that members of the public are not at risk from prosecution. Possession does not arise in respect of viewing a film in the cinema. Cinema staff and others involved in the classification process will be covered by the defences in section 64.
Section 69 of the Serious Crime Act 2015 created the offence of being "in possession of any item that contains advice or guidance about abusing children sexually". This is known as a paedophile manual. If a defendant has material containing advice or guidance about how to make indecent photographs of children they will likely be committing an offence under this section.
It is an either way offence which carries a maximum sentence of three years' imprisonment and requires the DPP’s consent to prosecute.
The general rule used to be that English and Welsh courts did not accept jurisdiction over offences committed outside England and Wales (see the legal guidance on Jurisdiction). That general rule is now subject to a number of statutory exceptions, as the UK has extended its jurisdiction to become extra-territorial for specified offences, and has made special provision for the determination of where the actus reus of the offence took place.
The starting points for jurisdictional matters are the provisions of the Sexual Offences (Conspiracy and Incitement) Act 1996 and section 72 of the Sexual Offences Act 2003 (SOA 2003)
- Section 72 of the SOA 2003 confers extra-territorial jurisdiction on the courts of England and Wales in respect of offences contrary to the PCA 1978 and section 160 of the CJA 1988.
- Where images originating on foreign websites are downloaded for viewing in the United Kingdom, the act of making is within the jurisdiction of the United Kingdom - R v Waddon  All ER (D) 502. See also R v Perrin  EWCA Crim 747.
- An attempt to commit a crime is triable in England provided the completed offence would have been triable here if the attempt had succeeded: DPP v Stonehouse  A C 55.
- A conspiracy to do something in England and Wales, even if no overt act pursuant to the conspiracy is done here, is justiciable: Liangsiriprasert v Government of the United States  AC 225.
- Inciting someone outside of the jurisdiction to distribute indecent images of children within the jurisdiction of the courts in England and Wales was held to be triable in the United Kingdom because the incitement takes place in this country. The case of R (on behalf of O'Shea) v Coventry Magistrates' Court  EWHC Admin 905 is a useful example of this principle. The same would not apply to offences under sections 44 and 45 of the Serious Crime Act 2007.
Cases relying on the extension of jurisdiction will of necessity involve close CPS - police liaison from an early stage in the investigation.
Providers of Information Society Services
Section 68 and schedule 13 of the Coroners and Justice Act 2009 ensure that the Act is compliant with the e-Commerce Directive (the “Directive”). The Directive was implemented generically by the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013) (the “Regulations”).
Schedule 13 paragraph 1 extends the territorial application of the offence by making it an offence for a service provider established in the United Kingdom to possess a prohibited image of a child in a European Economic Area (EEA) state which would constitute an offence if it were to be done in England and Wales. Schedule 13 paragraph 2 excludes service providers established in an EEA state from prosecution for the offence of possession of extreme pornographic images.
Schedule 13 paragraphs 3 and 4 of the Act limits the liability of internet service providers who carry out certain activities necessary for the operation of the internet.
When indecent images of children are found on a suspect's electronic device, careful consideration is required to decide which charge is the most appropriate Such a determination will be case specific but certain themes emerge which may be of assistance.
In cases where there is evidence that the suspect has published or distributed a prohibited image, prosecutors should consider whether they are able to charge the suspect with an offence contrary to the Obscene Publications Act 1959, rather than the offence of possession of a prohibited image.
In deciding whether the image before you is a photograph/ pseudo-photograph or a prohibited image apply the following test:
- If the image was printed would it look like a photograph (or a pseudo-photograph)?
If it would then it should be prosecuted as such. For example, some high quality computer generated indecent images may be able to pass as photographs and should be prosecuted as such. The CPS has had successful prosecutions of computer-generated images as pseudo-photographs.
Prosecutors must bear in mind what needs to be proved in respect of possession of the images. Much will depend on (a) the location of the images on the device (b) how they came to be located there and (c) how accessible/viewable they are in that location without specialist knowledge or software. By way of example:
- A person who views an image on a device, which is then automatically cached onto its memory, would not be in possession of that image unless it can be proved that he / she knew of the cache.
- A person who downloads an image from the internet and then deletes it such that it is ultimately recovered in the unallocated space or clusters will not be in possession of that image unless it can be proved that he / she has the wherewithal to retrieve it.
The case of R v Porter  1 WLR 2633 supports the view that, in normal circumstances, deleting images held on a computer is sufficient to divest oneself of possession of them. An exception would be where a person is shown to have intended to remain in control of an image even though he has deleted it - that will entail him having the capacity (through skill or software) to retrieve the image. Where images have been deleted prosecutors may wish to consider whether they can charge the suspect with possession of an indecent / prohibited image on a date between either the purchase of the computer (or reformatting) of the hard drive and the date that the computer was seized.
In each example, the person would however have "made" the image in question. Subject to there being evidence of the act which constituted the making and the necessary mental element, an offence contrary to section 1 of the PCA 1978 is preferable and in most cases would suffice.
The use of section 160 of the CJA 1988 is becoming increasingly rare. It is better reserved to cases where the evidence is unambiguous in showing genuine possession, for example, where a suspect has the images in printed form or has saved them into a clearly labelled file within the hard drive of the device. The charge of 'making' also has the advantage of being widely interpreted to cover such activities as opening attachments to emails and downloading or simply viewing images on the internet. By contrast, the same conduct often cannot lead to a possession charge.
When you create a new file on your device, the operating system finds available space and allocates that space to the file. Unallocated space or ‘clusters’ is space that is not allocated to active files within a file system.
Even if an image is located in ‘unallocated clusters’ and cannot be retrieved, provided it can be proved that the image was downloaded or in some way transferred onto the device, a charge of ‘making’ an indecent image can follow. It is important that prosecutors ask the police for any evidence of the search terms used by the suspect and the dates of searches for indecent material to assist in establishing a case for the making of indecent images.
Where the decision is being made on the basis of technical evidence, prosecutors are encouraged to ask their OIC or HTCU witness for clarification.
The Child Abuse Image Database (CAID) has been created to assist the police with (1) the cataloguing and grading of Indecent Images of Children ("IIOC") and (2) victim identification.
It is a secure database of illegal images of children and holds records of child abuse images known to UK law enforcement. It has been compiled from IIOC seized worldwide, including the UK. It uses software to review the files on any device which has been seized and then compare them against known data such as keywords or meta-data.
CAID processes images using 'hash tag' values in the image metadata. Once the image has been separately graded by three police forces it will be stored by CAID as an approved 'trusted' grade. This means that there will not be a need for anybody (officer, prosecutor or judge) to view the same image again when it comes up in future investigations, as the CAID grading can be adopted.
Using CAID reduces the need for officers or prosecutors to view large numbers of images, saving time and avoiding unnecessary distress.
Having compared the images on the suspect's device(s) with those stored on CAID investigators should provide prosecutors with a Streamlined Forensic Report (SFR1) which gives the total number of CAID recognised images in each category.
Officers will also be expected to select three representative image examples from each category and include a sufficiently-detailed description of each in the SFR1. These descriptions should include any factor relevant to sentence, for example: (1) the apparent age of the victim, (2) whether there is discernible pain or suffering, and (3) whether the child appears intoxicated or drugged. Where possible the image reference number should be included to allow for any cross-referencing, or to view the selected image should there be any point taken by the defence about the officer's descriptions.
Prosecutors are reminded of the importance of reducing any agreed expert conclusions into admissions under section 10 of the Criminal Justice Act 1967. Prosecutors should also ensure that defence assist the court in identifying the real issues in a case, including what, if any, of the expert’s conclusions are disputed. This is in accordance with their obligations under the Criminal Procedure Rules.
There may be images which have not been recognised by CAID but which may nevertheless be IIOC. These images will need to be viewed separately by the police who will provide a summary of them. Such images will be added to the database and begin the process of acquiring their 'trusted grade'. Officers will be considering each image to determine whether it reveals any contact offence, or whether the suspect is close to the creation of the image (see Streamlined Approach to Low Risk Offenders below). If prosecutors are being asked to charge a suspect with images which are 'new' to the police (and therefore not on CAID) it may in some limited circumstances be necessary to view the images to ensure the correct charges. Prosecutors should exercise their judgement as to whether the summary prepared by the police suffices.
In certain circumstances a streamlined approach should be used when prosecuting IIOC offences. Such an approach has been devised in order to meet the high volume of suspects being investigated by the police. Where appropriate this approach allows prosecutors to make charging decisions based on the results of the initial CAID analysis. This does not prevent a later decision to bring additional charges (if appropriate). It is designed to achieve an expedited outcome which also meets the interests of justice.
When to Use this Approach
This approach may only be used if the following three factors apply:
- The IIOC suspect is assessed by investigators to pose a low risk in relation to children. This assessment is carried out using KIRAT (Kent Internet Risk Assessment Tool)
- The investigation is limited to offences relating to the possession, distribution or production (in the limited sense) of IIOC. The scope of the investigation may be determined by what is found on the initial searches of devices, other evidence obtained or intelligence.
- All relevant digital storage devices have been subject to 'triage' by the Child Abuse Image Database (CAID). Triage typically involves using software to review the files on the device and compare them against known data such as key words and hash-set databases in order to determine whether the device holds anything of evidential value and therefore may need full forensic examination. Note that a device which contained only first-generation images of contact abuse may not be identified by the triage process.
If these criteria are met prosecutors should apply a proportionate assessment to the number of images presented to a court in order to deal with these cases justly, efficiently and expeditiously.
The Proportionate Assessment
This encompasses the following principles:
- Each case should be decided on its own facts.
- Charges should reflect the seriousness and extent of the offence, as well as providing adequate sentencing powers for the court.
- Proportionality means that investigators, having assessed the suspect as 'low risk', then compare the time, effort and resources involved in conducting a full forensic analysis of each seized device in order to identify and categorise every indecent image against the effect this would have on the likely final sentence. This does not mean that prosecutors must charge a minimum proportion of the total number of images or require the investigators to examine a minimum proportion.
- A consideration of proportionality is not intended to curtail an investigation into other offences or the examination of images in order to identify victims. The identification of children at risk remains of paramount importance, but need not delay a charging decision for making or possession of IIOC. The investigators should continue to view images for the purposes of victim identification after a prosecutor has advised that there are sufficient images for the purposes of a making/possession charge.
- The Sentencing Guideline sets the starting points for sentences based on the category of the images. There is less emphasis than under the previous guidelines on sentencing by reference to the number of images alone. A 'high volume of images' is now only one of 18 aggravating factors.
- What constitutes a 'high volume' is not defined. However, in general, once the number of IIOC reaches a certain threshold then the presentation of additional such images will have limited effect on the final sentence, especially when other aggravating and mitigating factors are taken into account.
- The number of digital images and movies on seized exhibits is constantly increasing due to the proliferation of material on the internet, the increasing range of devices capable of storing material and exponentially increasing storage capacities and download speeds. Neither the Sentencing Guideline nor the case law indicate whether a 'high volume' is an absolute standard or is relative to the increasing size of collections generally.
- It is suggested that a 'high volume' should be an absolute standard, such that, for example, 250+ Category A images is always a high volume however many images a suspect possesses in total. Applying a relative standard leads to the perverse result that the prevalence of IIOC makes the offences less serious. An absolute standard is also consistent with a proportionate approach to charging as it supports the underlying proposition that, above a certain threshold, the sentence is unlikely to be affected.
Where this streamlined approach applies, prosecutors need not request the examination of further images for the purpose of making a charging decision where the investigators have examined and categorised:
- at least 250 images at Category A or
- where there no Category A offences, a total of at least 1,000 images.
It is hoped that the timescales for technical examinations will be considerably reduced allowing a greater number of offenders to be investigated.
Any Remaining Images
Once the CAID images have been identified, it is important that images at a higher level are not missed. Therefore if a large proportion of images identified at the triage stage are still unexamined (as they did not match known CAID images), it may be proportionate for the investigators to continue searching for Category A images even after the threshold has been reached.
Where additional IIOC are found, these must be graded and included in the schedule to avoid reflecting a disproportionate number of Category A images to the overall totals.
Where some of the devices have not been subject to full forensic analysis prior to interview, but the triage process has indicated the presence of IIOC or evidence of other offences, the defendant should be invited to tell the investigators about what might be found on those devices at the interview stage. If he refuses to make any admissions he should be warned that the remaining devices may be examined at a later date (or may still be in the process of being examined for the purposes of victim identification) and may result in further charges. This mitigates against the possibility of an abuse of process argument on the basis of legitimate expectation if the defendant is later charged with further offences based on evidence obtained from devices that were not fully examined prior to interview.
In many cases the examination of additional (non CAID recognised) images should not delay charging the suspect for making those images recognised by the database. If further images are identified careful thought will need to be given as to whether the suspect should be charged with additional offences or not. Prosecutors are reminded that the number of images found is but one of the aggravating factors on the sentencing guidelines. Unless there are a significant additional number of images found, or the additional images clearly demonstrate additional aggravating factors, prosecutors may decide not to bring additional charges. These 'new' images will assist in future cases when they are added to CAID.
Viewing the Images
As above, it is important that prosecutors are familiar with the nature of the images in a case and have a proper understanding of what comes within each category but it is not mandatory for prosecutors to view the images in all cases in order to prosecute.
In cases involving low-risk offenders it should be unnecessary for prosecutors to view the images. In low-risk cases, the SFR need only describe the selected representative images (see above). As set out above - when images falling outside of the CAID database are the subject of the proposed charge prosecutors may in limited circumstances have to view the images. In most cases the police case summary will suffice. These images may also need to be made available to the judge and defence unless agreement is reached that this is unnecessary.
In cases where the proportionate approach has been used it will be appropriate, when opening a case at trial or sentencing, to indicate this fact. This should be included in the OIC's statement. This should also cover:
- An estimate of the number of potential additional images identified in triage. Unless the defendant has made admissions it will not be possible to prove that these are indecent images of children.
- An explanation of what has not been examined.
- Parameters of the examination of the computer i.e. basis of selection of files and basis of dip checks etc.
- The fact that the defendant has been assessed as 'low risk'.
Where there is no dispute by the defence, the description in the sample charges and the streamlined forensic report ought to provide sufficient information to enable the judge to pass sentence without the images being provided to the court.
Drafting an indictment in cases involving IIOC involves careful consideration of the issues in the case - the selection of appropriate offence, whether to allege multiple incident offences or not and whether to distinguish between particular devices will all be important decisions in framing a focused indictment. Much will depend on the known issues in the case.
The Standard form and Starting Point
In many cases there will be an appropriate uniform approach to the drafting of the indictment. This should be the starting point in every case.
The images should be grouped together (see below for multiple offence commentary) depending on which of the three sentencing guideline categories apply. The indictment should therefore have a maximum of three counts; one count for category A, one for category B and one for category C.
Prosecutors should use the Streamlined Forensic Report to obtain the total numbers of images in each category, across all devices interrogated. SFRs should provide a table setting out the total numbers of images in each case.
Each count should have an ‘explanation’ of what the count represents following the particulars, for example:
[This count represents the total number of Category A still and moving images found on Exhibits JDW/1, and JDW/2].
Using Multiple Incident Counts
Using multiple incident counts removes the need to provide example images of individual images, separately particularised in stand-alone counts. It further removes the need (where there is no issue raised) to draft separate counts for each of the devices found.
Prosecutors should use the multiple incident provisions as provided for in Part 10 of the Criminal Procedure Rules.
It is important to remember the need to specify in a multiple incident count the minimum number of photographs which the prosecution needs to prove - R v A  2 Cr. App. R. (S.) 12.
It is suggested that the guidance set out in the case of R v Thompson (Richard)  2 Cr. App. R. 16 is now somewhat out of date.
Further Refinement of the Indictment
Where the issues in the case are known they should be reflected in the form of the indictment, to allow a jury to easily understand the issues in the case and for their verdicts to illustrate clearly their evidential conclusions. For example, if a defendant disputes that a proportion of the images were 'made' by him, those images can be excised from the existing counts and separately particularised in an additional count. It is good practice for prosecutors to specify within each count how many of the images relate to a ‘still’ image and how many relate to ‘moving’ images.
On 1 April 2014 the Sentencing Council issued revised guidelines for all sexual offences including those concerning indecent images of children. They simplified the images into three categories of seriousness:
- Category A - Images involving penetrative sexual activity, sexual activity with an animal or sadism.
- Category B - Images involving non-penetrative sexual activity.
- Category C - Indecent images not falling within categories A or B.
The full guidelines can be found at http://www.sentencingcouncil.org.uk/publications/item/sexual-offences-definitive- guideline/
Notification and Disqualification
Part 2 of the SOA 2003 requires those convicted or cautioned for relevant sex offences, including offences contrary to section 1 of the PCA 1978 and section 160 of the CJA 1988, to notify the police of certain personal details including name, addresses and National Insurance Number. Any change of name or address or of staying away for a qualifying period must be notified to the police within three days.
Offenders must also re-notify the police of their details annually. The police keep this information on the Dangerous Persons Database VISOR, in what has become commonly known as the Sex Offenders' Register.
Notification requirements are automatic upon conviction. The role of the court is to notify the defendant how long he will be subject to the requirements. This is best done on sentence as the period of his disqualification will often be determined by the sentence he receives.
In relation to a prohibited image of a child, prosecutors must bear in mind that in very limited circumstances people convicted of this offence can be made subject to notification requirements under part 2 of the Sexual Offences Act 2003. Offenders must be aged 18 or above and receive a sentence of two years’ imprisonment or more.
Offences contrary to either s.1 of the Protection of Children Act 1978, s.160 of the Criminal Justice Act 1988 or s. 62 of the Coroners and Justice Act 2009 will result in the defendant being automatically barred from working with children. They do have a statutory right to make representations about their continued barring. The Disclosure and Barring Service is now responsible for the oversight of this area of public protection.
Whilst the Court plays no part in determining whether a defendant is, or may be disqualified, it is good practice for a Judge to inform a defendant that he/she will be barred, subject to his/her right to make representations.
Sexual Harm Prevention Orders
For detail on Sexual Harm Prevention Orders, please see here.
Deprivation and Forfeiture
Prosecutors should always request forfeiture of indecent or prohibited images of children using s.143 of the Powers of Criminal Courts (Sentencing) Act 2000 following conviction. The section allows a court to make a deprivation order, where:
- The Court is satisfied that any property (seized from him or in his possession) has been used for the purpose of committing or facilitating the commission of any offence [s.143 (1)].
- The court is satisfied that the offence [being sentenced or taken into consideration upon sentence], consists of unlawful possession of property which was in his possession or under his control at the time when he was apprehended [s.143 (2)(b)].
It is suggested that where offences of making indecent images have been charged an application under subsection one should be made. If the indictment contains charges of possessing indecent images an application can be made under subsection two.
Prosecutors are encouraged to take a robust approach to such applications. In the first instance it may be appropriate to seek a deprivation order for the complete hard drives of any device. It may however be argued by the defendant that there are specific reasons why a comprehensive order has a particular financial or other effect [see s.143(5)]. Such disputes should be settled on a case by case basis. Any suggestion that a compromise position should be adopted and that the police can delete certain images and return the remainder of the hard drive should be avoided. This process has huge time and resource implications for the police.
In addition to the process available upon conviction, an additional procedure exists for seeking forfeiture. Section 5 of the Protection of Children Act 1978 and Schedule One to the same Act (as amended by 39 of the Police and Justice Act 2006) provides a mechanism to allow police to forfeit indecent photographs of children following any lawful seizure. Having given all interested parties notice, the property is treated as forfeited if it remains 'unclaimed'. If the defendant contests the notice of intended forfeiture there may be a hearing to determine the issue. Such proceedings are civil and are litigated in the magistrates' court.
This process may be used to forfeit images in cases where the prosecutor at court has forgotten to ask for forfeiture of the images or where there is no conviction: for example where a caution has been given or charges dropped.
This process allows forfeiture of articles that are impossible to separate from legal data on a computer hard drive. It allows police to forfeit articles they believe are likely to be or contain indecent images of children. For example this will allow police to forfeit a vast collection of discs/videos without having to go through every single item, as long as they have reasonable grounds to believe they were or contained such images.
Anonymity and Reporting Restrictions
The Sexual Offences (Amendment) Act 1992 does not apply to offences under section 1 of the PCA 1978, section of the 160 CJA 1988 or section 62 of the Coroners and Justice Act 2009. If necessary, an order under section 45 or 45A of the Youth Justice and Criminal Evidence Act 1999 should be sought.
A prosecution will usually take place unless there are public interest factors against prosecution which outweigh those in favour.
The decision by the police to administer a caution will ordinarily be made in conjunction with the CPS, although the police do, theoretically, retain a right to administer a caution.
Before offering a caution, the prosecutor must apply his or her mind to the public interest factors. Every case should be decided upon its own facts.
A caution is unlikely to be a suitable method of disposal in cases where indecent images of children are found on the suspect's device. Similarly, conditional cautions may be considered but are unlikely to be a suitable method of disposal. The lowest starting point stated in the sentencing guidelines is a high-level community order. The lowest starting point where conditional cautions are normally considered are at medium-level or below.
Prosecutors should consider whether a prosecution is required in the public interest and/or whether an out of court disposal is appropriate, where youth offenders are concerned, applying the CPS guidance on Youth Offenders. This is particularly the case where children make and/or share images of themselves, depending on the circumstances
If the defendant's solicitor or counsel or expert (for any reason) wishes to view the indecent photographs/pseudo-photographs or examine the defendant's hard drive, the prosecution should provide the defence with suitable access to the relevant material. Such access must enable the defendant to have private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS. Whenever possible, such access should take place either on police premises, or at the offices of either the defendant's solicitors or the offices of the defence or prosecution expert. The accused should only be permitted access whilst in the company of their legal representative.
Prosecutors should remember that defence solicitors have a duty to defend their clients properly, whilst law enforcement agencies have a duty to ensure that they do not unnecessarily create more indecent images of children or compromise sensitive confidential material. See the case of Crown Prosecution Service v LR  EWCA Crim 924.
When the issue arises as to the disclosure of material, in order to decide whether or not to release such material, the following approach should be adopted:
- In cases involving a request for a technical examination of the evidence, a meeting should take place between defence and prosecution technical experts in order to agree what should be supplied. If it is necessary, the defence technical witness may be given private (or controlled) facilities to examine the images at law enforcement premises at reasonable hours.
- If the person in charge of the investigation considers it necessary, then the work may take place other than at police premises if the defence technical witness signs an appropriate undertaking.
- If the defence team cannot for good reason view the indecent images at a police station, for example in cases where the defendant is in custody, the prosecution should correspond with the defence in order to agree access to the indecent images by the defence team. Such access can be at an appropriate venue for example a court, the defence solicitor's office or counsel's chambers etc.
- In situations (1), (2) and (3) above, where no agreement is reached, the case should be referred to the court to hear argument and, if necessary, issue appropriate directions.
- If the court directs that copies of the indecent images should be supplied to the defence solicitor or counsel, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the solicitor or counsel signing an undertaking as to the safe custody and control of the image etc.
- In the case of a technical witness, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the technical witness signing an undertaking as to the safe custody and control of the image etc. Breach of the undertaking may leave the signatory open to prosecution and disciplinary action from their professional body.
When viewing the photographs/pseudo-photographs, arrangements should be made with the police for such images to be viewed on the police officer's computer equipment at a mutually agreeable location. Media containing indecent images of children should not in any circumstances come into the possession of CPS prosecutors or computer equipment. The Departmental Security Unit and senior management should be consulted in any scenario where exceptionally it is proposed that such media should be provided to the CPS.