‘Making’ Indecent Images: the law

The spotlight has been cast on the law on indecent images, following Huw Edwards being charged and pleading guilty to making indecent images of children this week.

However, ‘making’ indecent images has a wide meaning in the law, and does not just cover the ordinary meaning of the word.

The offence

Under section 1(1)(a) Protection of Children Act 1978, it is a criminal offence for someone:

to make, take or permit to be taken or made
an indecent photograph or pseudo-photograph
of a child

‘To make’ has been widely interpreted and can include:

opening an attachment to an email containing an image (R v Smith; R v Jayson [2003] 1 Cr App R 13);
downloading images from the internet and storing or printing them (R v Bowden [2001] QB 88). This means that anyone who received images from another person over the internet whose device then automatically ‘saves’ or ‘downloads’ the images is guilty of making indecent images of children, even if they themselves have not technically made (in the ordinary meaning) the original photograph;
accessing a pornographic website in which indecent images appear by way of automatic ‘pop-up’ mechanism (R v Harrison [2008] 1 Cr App R 29);
receiving an image via social media, even if unsolicited and even if part of a group (although if the accused can prove that the image was unsolicited and they did not keep it for an unreasonable time, they would have a defence (R v Collier [2005] 1 Cr App R 9)); and
live-streaming images of children

The test for whether something is ‘indecent’ is an objective one, that the Court will consider if necessary (R v Neal [2011] EWCA Crim 461), taking into consideration the age of the child. The circumstances in which the photograph came to be taken and the motive of the taker are not relevant, as it is the photographs of the child which must be indecent, as opposed to the defendant’s conduct (R v Graham-Kerr (1989) 88 Cr App R 302; R v Smethurst [2002] 1 Cr App R 6).

A photograph includes a film (any form of video recording), a copy of a photograph or a film, and an indecent photograph comprised in a film.

Photographs also include:

the negative as well as the positive version
data stored by any electronic means which is capable of conversion into a photograph
a tracing or other image, whether made by electronic or other means (of whatever nature):
- which is not itself a photograph or pseudo-photograph; but
- which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and
- data stored by any electronic means which is capable of conversion into the above tracing or image

A pseudo-photograph is an image, made by computer graphics or any other way, which appears to be a photograph. The test is whether the image, if printed, would look like a photograph/pseudo-photograph. If the impression conveyed by a pseudo-photograph is that of a child, the pseudo-photograph shall be treated as showing a child (regardless of whether it is of a child or not).

A child is anyone under the age of 18. Notably, whilst the age of consent in the UK is 16 and consensual sexual activity with 16 and 17 year olds can be technically legal, the possession of images of such individuals (even if consensual) is not.

Indecent images are categorised as follows:

Category A: showing serious abuse including penetrative sexual activity
Category B: involving non-penetrative activity
Category C: covers other indecent images.

Even if the photograph has since been deleted and cannot be retrieved, if it remains in the device, if it can be proved that the image was downloaded or in some way transferred onto the device, someone can still be guilty of making an indecent image.

If the images are “hosted” outside of the jurisdiction, ie they were originally created/produced outside of England and Wales, if they have been downloaded in England and Wales, someone can still be prosecuted in this jurisdiction (R v Perrin [2002] EWCA Crim 747 and R v Waddon [2000] All ER (D) 502).

Anyone found guilty of this offence is at a high risk of receiving a custodial sentence, with the maximum sentence being one of 10 years’ imprisonment.

Comment

The strictness of the law in this area can sometimes have harsh results. See for instance, our blog on the case of Robyn Williams who was convicted in respect of a video she neither requested or watched, despite the prosecution acknowledging that neither she nor the sender had any sexual interest or motivation. Ms Williams was a senior police officer and her her sister had sent her the video in an attempt to report a crime. The Court of Appeal upheld her conviction.

The law on indecent images is complicated, and often there is scope for legal argument in respect of what the correct offence is for someone to be charged with. It is also a serious offence that can carry a heavy penalty. Therefore if facing such charges, obtaining legal advice at the earliest opportunity is crucial.

If you are facing investigation or prosecution, send us an email, complete our online enquiry form or call us on 020 7183 8950 to find out how our specialist criminal solicitors can help you. If emailing or using the online form, please provide a short outline of your situation.