How are indecent images graded in UK Criminal Courts?

The internet has become a major medium for harmful behaviour by adults. Many will have heard of the "dark web" which is seen as a primary source of criminal activity online.

It refers to a collection of heavily encrypted websites, forums and social networks, providing spaces for illegal activities, such as the sharing of indecent images. According to the Association of Chief Police Officers (ACPO), 84% of the overall caseload for High Tech Crime Units (HTCU) across the UK involves indecent images and child abuse investigations.

What are 'indecent images'?

The legal term 'indecent images' can refer to photos, videos or other computer data that's capable of being converted into a photo or video. To be classed as 'indecent', the image must be of a person under 18 years old, but it can also refer to animals. Whether material is 'indecent' is for a jury to decide, but examples include:

• Nude or partially clothed children
• Children sexually posing
• Self-generated sexual images by children (selfies)
• Images depicting children engaging in sexual activity

The National Crime Agency (NCA) reported that there has been a 700% rise in allegations of abuse images since 2013, while the Internet Watch Foundation (IWF) took action over 124,605 images of child abuse (located online between January and November 2019), finding 30 per cent of indecent images (37,112) were selfies.

Chief executive of the IWF, Susie Hargreaves, stated that the number of children being tricked into generating indecent images is proliferating, becoming "a national crisis." She said:

"Today's data demonstrates the alarming rate at which self-generated imagery is increasing, especially among young girls - often in domestic settings.

Categorisation in UK Criminal Courts

Under section 1 of Protection of Children Act 1978, it is an offence to possess indecent photographs of children. Sentencing guidelines do, however, vary from possession to distribution and production, with 3 grades of seriousness:

• Category A: Explicit material involving penetration, sexual activity with an animal or sadism (deemed the most severe).
• Category B: Explicit material that is non-penetrative sexual activity (the mid-range in terms of seriousness).
• Category C: Explicit material involving erotic posing (the least severe).

Images brought before the court will only ever give an indication of the abuse suffered by the victim; however, the gravity of the sexual offence shown in the image can be an initial guide to determining the damage and suffering caused, therefore having a significant impact on sentencing.

Determining severity

In UK criminal courts, prosecutors will identify how many images fall into each of the 3 categories listed above. Offenders may have only one level of image; however, it's more likely that they possess a collection including a mixed level of images, so determining the severity can be complex. It’s likely that with 'mixed collections' the highest category of image-level present will primarily determine the appropriate starting point for prosecutors.

The court will also need to consider the activity that has taken place concerning the images. There are 3 categories:

• Possession
• Distribution
• Production

Possession

This relates to having custody and control of indecent images stored on a device. It is the least serious of the categories; however, it does require a mental and physical possession.

Distribution

This involves parting with possession of indecent images or offering it to another person. This includes allowing it to be accessed via file-sharing programmes online, such as peer-to-peer (P2P) file-sharing networks.

Production

This relates to creating the original image. It can also include downloading an image onto your device (but for the purposes of sentencing this would be treated as possession).

Sentencing guidelines

Sentencing guidelines vary depending on the category and what was done with the images. The table below shows how the court will deal with these offences.

Category	Possession	Distribution	Production
A	Starting point 1 year’s custody	Starting point 3 years’ custody	Starting point 6 years’ custody
	Range 26 weeks’ – 3 years’ custody	Range 2 – 5 years’ custody	Range 4 – 9 years’ custody
B	Starting point 1 year’s custody	Starting point 1 year’s custody	Starting point 2 years’ custody
	Range High level community order – 18 months’ custody	Range 26 weeks’ – 2 years’ custody	Range 1 – 4 years’ custody
C	Starting point High level community order	Starting point 13 weeks’ custody	Starting point 18 months’ custody
	Range Medium level community order – 26 weeks’ custody	Range Community order – 26 weeks’ custody	Range 1 – 3 years’ custody

It's important to understand that these are purely guidelines, and there are many other aspects to be taken into consideration when sentencing, such as:

• Age of the child
• Vulnerability of the child
• Any previous convictions
• Pain or distressed suffered by the child
• Duration of time in which images were possessed, distributed or produced
• Remorse
• Volume of indecent images
• Attempts to conceal evidence
• Steps taken to address offending behaviour

Noble Solicitors is an established family solicitors with multiple offices in Bedfordshire, Hertfordshire, Northampton and London. Our Crown Court & Complex Crime team, Barristers and Advocates have defended those faced with allegations of sex crimes such as:

• Prostitution
• Pornography
• Gross indecency
• Indecent Assault
• Child sex offences
• Rape

Whether you wish to learn more about our experience representing cases that relate to indecent images offences or any other sex offence, please call us today on 07000 81 82 83 or email us at info@noblesolicitors.co.uk and we'll be back in touch as soon as possible.

We will fight your defence every step of the way.

Read next article