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In an ideal world, the idea of indecent images is repulsive whether or not its production involved the abuse of real children. Regrettably in reality indecent images - visual representations of child pornography in the form of, for example, photographs, pseudo-photographs and videos are all easily accessible. Now you may expect that only those not in the right state of mind would access and possess such images. However, those with high profiles have also been accused/ cautioned/ charged with possession of indecent images. For one to be guilty of the offence of possession of indecent images, not only must they be in possession of such images but there needs to be evidence of knowledge. How do we define indecent images? - An image of a child under the age of eighteen portraying erotic behaviour.

Facebook, Snapchat, Instagram, Twitter, we are everywhere on the Internet today, posting everything on social media without taking caution! But have you ever come across a website with indecent images? Suppose you download it and send it to your mate for a laugh. This would constitute an offence of possession of an indecent image. By downloading such images with a guilty knowledge, you would be committing the offence of possession of indecent images. In today’s generation, not only adults but also children are being accused of offences involving indecent images. An example would be a schoolgirl sending nude photographs to a schoolboy. The schoolboy may be accused of possession of indecent images.

Do I have a defence to such an offence?

There is an increasing number of websites with illegal contents causing innocent users to be suspected of accessing illegal images. A lot of us are not even aware of this offence until we are arrested and taken to a police station for an interview under caution. Some defences include the following:

• You have been sent an indecent image without requesting it but you deleted it and it was not kept for an unreasonable time;
• You were not aware that you were downloading an indecent image and you deleted it;
You have a legitimate reason for the possession of indecent images;
• You have not seen the image but the images were saved on a web browser cache on your computer and you did not have knowledge of this;
• Indecent images have been downloaded unintentionally with other pornographic material.

What about freedom of speech and an individual’s privacy? Unfortunately this is not a defence! The tension that exists over the criminalisation of possession of indecent images is the violation of one’s freedom of speech and right to privacy under Article 10 and Article 8 of the European Convention of Human Rights Act 1998. Some argue that it is an individual’s liberty to possess and look at such images in the privacy of his or her own home and that the freedom of thought must be respected unless it causes harm to others. However, some state that prohibiting such images protects children by reducing the risk of these ‘fantasies’ being practiced in the real-world in the future. Unfortunately, some of you might find yourself at the police station for allegations of possession of indecent images of children and argue that it was for your private and personal use and that you have not harmed anyone. Well, whatever your thoughts are the law states that it is a criminal offence and an individual’s privacy will not be a defence.

I would stress the importance of having representation at the police station for such an allegation in order to obtain expert advice on any defences available. The courts take these types of cases very seriously and a prison sentence is a starting point unless the image is classed as a category C image.

Prison Sentence for this offence?

If you are found guilty of this offence, the sentence imposed will depend on the severity of the image and the number of images found. Images are categorised as either A, B or C with A being the most serious.

1. Images include penetrative sexual activity, sexual activity with an
   animal or sadism;
2. Images involving non-penetrative sexual activity;
3. Images of erotic posing.

Most offenders found guilty of this offence are in possession of a mixture of images categorised from A-C. The starting point for images classed as category A or B is custody. Category C images have a starting point of a community order. However, bear in mind that the court will also consider additional aggravating factors, such as abuse of position of trust, or mitigating factors, such as mental disorder, before considering a starting point for sentence. The maximum sentence for possession of indecent images is five years’ imprisonment.

The majority of those who are under investigation for such an offence will have their computer or phone seized. A common question that most people under investigation raise is when will they get their belonging back. Unfortunately, you may never get it back unless the police take no further action and decide to return your belongings.

Every case is different and will require consideration of every issue in detail, including viewing the images. If you are facing an allegation of this nature, make sure you have representation from the very start of the investigation to avoid incriminating yourself.

The author, Shanthiny Selvarajah, is a trainee solicitor in the Duncan Lewis Crime department.

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