What does the criminal law say about the receipt and solicitation of sexual images from young people?

In recent weeks, the media has been engulfed with stories about alleged sexual misconduct involving media personalities. Firstly, a BBC presenter, now revealed by his wife to be the news broadcaster Huw Edwards, was alleged by The Sun to have paid for images of sexual nature from a young person.  The Sun initially seemed to imply that this occurred when the young person was 17, but they have since resiled from this position.

It is important to note that the story was published by The Sun based on information given by the mother of the person who had sent the images.  The young person in question has stated the allegations are false, and the true picture is unclear.  Our media and communications blog covered prospective libel and privacy claims Edwards might pursue.

Huw Edwards is currently unwell and has not been in a position to defend himself. The Sun did publish further allegations of a similar nature. Another 17-year-old claimed he had received messages on Instagram from Mr Edwards containing love hearts. A 23-year-old said that Mr Edwards had breached lockdown rules to meet with him. There is much contention about the truth of all of these allegations and the police have already concluded that there is no criminal case for Mr Edwards to answer.

This week, the GB News presenter (and former Sun journalist) Dan Wootton has also been under the spotlight for allegedly paying colleagues large sums of money for images of themselves performing sex acts. This is an allegation which Mr Wootton denies although he admits to having made “errors of judgment”.

The allegations about Mr Edwards and Mr Wootton can be loosely described as 'sexual misconduct’ but what is the position in the criminal law? Does the law provide adequate protection to alleged victims of sexual misconduct and what is the position regarding those under 18?

Sexual activity with minors

The age to consent to sexual activity is 16. This means that a person over the age of 18 can lawfully engage in consensual physical sexual activity with a 16 or 17-year-old.  The Sexual Offences Act 2003 created specific offences for adults engaging in sexual activity with those under 16-years-old, as well as preparatory style offences such as grooming.  This is a complex area of law that is outside the scope of this article. For our purposes, the Act also creates offences for certain kinds of sexual activity with those aged 16 and 17 in circumstances where there has been an ‘abuse of position’ or where there has been ‘sexual exploitation’. Again, these are complex legal concepts which are probably not applicable to this situation. But what about images of a sexual nature?

Sexual images of children

The key factor in whether a criminal offence has been committed is the age of person in the image and whether what is depicted is ‘indecent’.

Significantly, although the ‘age of consent’ is 16 and a child of that age can consent to physical sexual activity, they cannot consent to the possession of indecent images of themselves save in the circumstances described below.

In the allegations that were asserted against Mr Edwards, it was suggested that there had been payment to a 17-year-old for images of a sexual nature. Although this is denied by the young person, if it were to be the case, the requestor of those images may have committed criminal offences.

These are examined below:-

• Under section 1(1)(a) of the Protection of Children Act 1978, it is an offence for a person to take, or permit to be taken or to make, any ‘indecent’ photograph of a child.  Under this offence, the “making” of an indecent photograph can be as simple as opening an attachment containing that image. It is a defence that the child or young person consented to the possession or transfer of the image, but only where they are married or living together as partners in an enduring family relationship.
• Similarly, under section 160(1) of the Criminal Justice Act 1988, it is an offence for a person to have any indecent photograph of a child in his possession.  This section tends be used only sparingly in prosecutions of this nature and there is a similar defence of marriage or co-habitation. There is a further limited defence of ‘consent’ which is applicable here although rarely in practice.

Thus, in circumstances where a 17-year-old person has sent sexually implicit images of themselves to an adult (or even another young person) a prima facie offence has been committed unless the recipient is married to them or living with them. To be clear, we do not know that this has happened in Mr Edwards’s case or that of Mr Wootton, both of whom deny any criminal wrongdoing.

Other potential offences

Sexually implicit images of adults do not contravene the criminal law per se unless they involve ‘extreme pornography’ albeit in circumstances where such material is demanded, or even requested repeatedly there is a possibility that offences may have been committed.

It is an offence under the Protection of Harassment Act 1997 to pursue a ‘course of conduct’ that amounts to the harassment of another person. To repeatedly contact a person, whether a child or an adult, demanding sexually explicit images for example, may be an offence if such contact is unwanted and repeated.

Similarly, it is an offence under the Malicious Communications Acts 1988 and Communications Act 2003 to send a message which is threatening, offensive or grossly indecent.

Commentary

It can be dangerous to speculate about consenting sexual activity without knowledge of the full facts and there is no suggestion that any criminal activity has taken place in the cases referred to in this article. Nevertheless, demands for, and the possession of, material of a sexually explicit nature from adults and young people alike may involve transgressions of the criminal law and attract the interest of police and Crown Prosecutors. Convictions for such offences may attract sentences of imprisonment and lifelong reputational damage. This is why there is a growing trend towards privacy for suspects in such investigations (whether conducted by the police or an employer) and control of salacious media reporting even in circumstances where those suspects have always advocated for such intrusion.

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