Indecent Images, Porn and Computer related crime
Being suspected of possession of indecent images, especially indecent images or photographs of children is extremely serious. General criminal defence solicitors may not have the specialist knowledge or resources to actively defend against allegations of possession of indecent images.
If you have been contacted by the police to discuss this, request a call back today and we will advise you of your options in this complex area of law. It is likely that the police have information about you or a computer that you have access to which and may want to formally interview you about potential criminal offences such as possession of indecent material.
You should not wait to “see what happens” or think that you don’t need a solicitor because “you have done nothing wrong”. Some of the most important and significant decisions made during a police investigation can be made during the initial police station stage. Equally, some of the most catastrophic errors can be made during a police station interview and you should only attend a police station with an expert solicitor with a profound knowledge of computer related crime and possession of indecent image laws. Our cost to provide you with active and effective defence representation during the police investigation will be free to you. Request a call back today.
If you have already been interviewed by the police, it may not be too late to repair any damage done during the police interview. Contact us today, so that we can make an early appraisal of your case and advise you of the options.
If you have been charged, you will need to attend court. Contact us today, so that we can begin the active defence of allegations of possessing indecent images. Subject to your income and expenditure, you will qualify for Legal Representation – Legal Aid. We can make the application for you. Request a call back .
Investigating offences of indecent images
The government’s continuing plans to extend surveillance of our communications to cover email, the web and social networking means that investigating authorities have a plethora of information available when investigating on line child pornography. Simple methods of scanning search terms to more complex infiltration of internet groups and criminal forums are simply some of the methods used by investigators.
Using search terms that clearly relate to images of children are likely to result in investigation.
What do the prosecution have to prove?
The Protection of Children Act creates a number of offences relating to indecent images. The starting point of every good defence to possession of indecent images, is to understand the legal framework creating the offence of possession and other offences relating to indecent images.
The offences relating to possession of indecent images, can be summarised as follows:
Under the Protection of Children Act, it is an offence to:
i. Take, permit to be taken, or to make any indecent photographs or pseudo-photographs of a child
ii. Distribute or show such indecent photographs or pseudo-photographs
iii. have in his possession such indecent photographs or pseudo-photographs with a view to their being distributed or shown by himself or others
iv. publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so
In order to prove an offence relating to indecent images, under Section 1 of the Protection of Children Act the prosecution must establish, beyond a reasonable doubt the following elements:
That you did one of the following:
i. Made an indecent image; or
ii. That you took a photograph which was indecent; or
iii. That you permitted and indecent image to be taken; or iv. That you distributed or showed to others an indecent image; or
v. That you published an indecent image; or
vi. That you allowed or permitted an indecent image to be published
It is important to remember that an indecent image includes:
- an indecent film,
- a copy of a photograph or film,
- computer data capable of conversion into a photo or a copy.
The Criminal Justice Act (S160), illegalises the offence of possession of an indecent image of a child. This offence requires no intention or motive in making or distributing the image. The fundamental requirement is that the indecent image was in their possession.
What does possession mean for the purposes of indecent images?
There is a distinction between possession for the purposes of drug offences, firearms offences and indecent image offences. In the majority of cases, the difficulty is where the “possession” is in relation to images that are held on the hard drive of a computer, tablet or mobile device.The notion of possession requires that a person has or had custody and control over the image at that time. The issue usually comes down to whether at the time of possession the image was beyond his control. If so, he cannot be deemed to be in possession of it.
Before attending court, you should Contact us to arrange representation for you. Our experienced lawyers and solicitors in computer related crime and allegations involving indecent images will discuss matters with you in detail. We will explain the Magistrates’ court procedure in detail and answer any questions that you may have. Our aim is to ensure you are as prepared as you can be for your day in court.
During the course of the first hearing itself, the court clerk will usually ask you to identify yourself by your name and address. If there is any reason why your address should not be stated in open court, then we can advise the magistrates of this in advance and usually avoid the need for you to announce your address in open court.
The procedure in respect of allegations of possessing indecent images will begin in the Magistrates Court. Depending on the nature and circumstances of the allegation, possession of indecent images can be dealt with in the magistrates’ court or the crown court, depending on the seriousness and nature of the circumstances leading to the prosecution.
In the first instance, the court will determine where they think your case would best be heard. One of the considerations the court will have is whether they would have sufficient sentencing powers if you were convicted (or pleaded guilty) of the allegation of possession of indecent images. In order to determine this, the magistrates would be told of the nature and circumstances of the allegations and would be appraised of the aggravating and mitigating features of the circumstances of the allegation.
In particular, the Magistrates will be told of the “grading” of the indecent images according to the Sentencing Council’s sentencing guidelines on possession of indecent images. The sentencing guidelines require the images to be graded from Level 1 to Level 5. Level 5 indecent images are the worst and are considered to be the most serious and carry the highest penalty.
Indecent Image levels
Level one indecent images
These are indecent images which depict suggestive images involving erotic posing but no sexual activity.
Level two indecent images
These are indecent images which depict non-penetrative sexual activities between multiple children or masturbation by a solo child.
Level three indecent images
These are indecent images which depict non-penetrative sexual activities involving both adults and children.
Level Four indecent images
These are indecent images which depict Penetrative sexual activity involving one child, multiple children or both children (child) and adult(s)
Level five indecent images
These are indecent images which depict sadism or penetration of, or by, an animal.
Inadvertently stumbling across child porn pictures by accident
We understand that there are circumstances in which you may have inadvertently stumbled across child porn pictures by accident. Some so called experts may advise you that you are not committing a crime because it was not deliberate. This is not completely accurate and is an oversimplification of the law and how it applies to cases of possession of indecent images of children. You will require the assistance of expert defence solicitors to consider all of the circumstances as to how you came about the images, what you did with the image, what search criteria had been applied for you to have stumbled across the image, whether the image is still stored in your computer memory and the extent of your knowledge in dealing with computers. Contact expert computer and porno and indecent image specialist who can advise you on these and other issues that could affect your liberty.
I was sent indecent images of a child by someone
Again, some so called experts may advise you that you are not committing a crime because although you have viewed it, provided you deleted it. Again this is not completely accurate. Contact us today, to begin the active preparation of your defence.
What is meant by a child?
Legally, a child is someone under the age of 18. This means someone aged 17 or below. Prior to 2004, a child was defined as a person under the age of 16, but this was changed by Section 45(1) of the Sexual Offences Act 2003. For the purposes of determining the age of a child within an image or indecent image of an alleged child, see below.
How can the age of a child be determined from a photograph?
Legally, the age of the child shown in an indecent image is a factual issue which must be determined by a Jury. The jury must make the determination on the question of how to determine the age of a child in an image or photograph. It is not open to expert interpretation and the jury must make an assessment of what they consider the age of a person to be and whether they consider the image to be of a child, without a requirement for assistance by expert reports or expert evidence. It is said that the jury should take a common sense approach to the issue. In many cases, the photographic evidence may be tainted by other information and circumstances surrounding the case. For example, where images may be borderline in terms of age, if there is evidence of search terms relating to children, this may taint the issue over the age of those depicted in the indecent image.
What are Pseudo photographs.
These are generally images where the image or photograph gives the impression that the person shown in the picture is a child. Where this is the case, then the pseudo-photograph will be treated for the purposes of the law as showing a child. Even if there are some physical characteristics that can be shown to be adult, if the predominant impression of the image or photograph is that the person shown is a child the pseudo-photograph will be treated for the purposes of the law, as portraying a child.
What is the defence or are there and defences to offences in relation to indecent images offences under the Protection of Children Act?
If you are facing charges under the Protection of Children Act, then the following defences can be explored:
I am married and we took pictures of each other and she was 16. Images are of my partner?
Where you have been charged with taking the photos or publishing advertisements for the photos, it would be a defence to show that at the time you obtained the image that you and the child were married or civil partners in an enduring family relationship.
Could there be a Legitimate Reason for having indecent images?
The defence is very limited and applies to charges or offences of distributing the photographs or possession with intent to distribute indecent images. Those with legitimate reasons for distributing or possessing indecent images with intent to distribute may be a policeman investigating a case, a barrister conducting a defence or an expert witness preparing files for their court appearance. As we have said, the circumstances of legitimate reason are very narrow.
What if I did not see the photographs or indent images?
Where you had not seen the photographs and did not know them to be indecent and did not have cause to believe them to be indecent, a defence may be available. Care should be taken when considering this as a defence. Officers, investigators and the police will routinely send computer equipment to forensic specialist for examination. Hard drives will contain a plethora of information recording all kinds of data which could show that the images were downloaded following specific search criteria.
What if I came across the images by accident
It is often the case that whilst searching or viewing standard pornography, sites may contain indecent images of children or that indecent images of children will “pop up” usually to entice the user to other sites. Defence forensic analysis may assist in proving this line of defence. We work with some of the countries leading forensic experts. Contact us today or request a call back and we will call you at your convenience.
What if other people who had access to my computer downloaded the images?
It is very common that there will be a number of users of a computer. Where others have accessed your computer, it is quite possible that someone else had downloaded indecent images to your computer or the computer which you also share. Evidence of password use may not be conclusive given the ease by which passwords can be by-passed. Our expert defence solicitors have some of the best computer forensic experts in the world at their disposable and can use their expertise to demonstrate and prove your defence. Contact us today or request a call back and we will call you at your convenience.
What is the defence or are there and defences to offences in relation to indecent images offences under the Criminal Justice Act 1988
In addition to the defences of marriage, legitimate reason and knowledge as described above, it would be a defence if you were able to show that the photograph was sent to you without any prior request on your behalf and that you did not keep it. The Criminal Justice Act does not define the meanings of “prior request” and “reasonable time”. Of particular note is the fact that the Act does provide whether the time for the purposes of “reasonable time” runs from when the image was downloaded by the computer or when it was known by the user to have been downloaded by a computer. We would strongly argue that it would be when the user knows it to have been downloaded by the computer. This is the only option that would sit well with the concept of the mental element required to be proven by the prosecution in these cases. Contact us today or request a call back and we will call you at your convenience to begin the preparation of your active defence.
SEXTING, SELFIES AND THE LAW ON INDECENT IMAGES
The growing trend by young people to take and share indecent photos of themselves, friends and partners as posed considerable problems. In a traditional sense, all of the users or sharers would be guilty of some offence.
As a result of the inherent problems posed by sexting and sharing indecent selfie images, the Association of Chief Police Officers have issued a “position statement”. The full statement is titled “ACPO CPAI Lead’s Position on Young People Who Post Self-Taken Indecent Images.”
Part of the problem that is recognised is that it can be difficult to distinguish between indecent selfie images taken by young people pushing boundaries, trying new things and experimenting with their friends and partners and at the sinister end, where the images are a result of grooming or facilitation by adults having a sexual interest in children.
A prosecution for any of these offences would have far reaching consequences and could be life changing. Offenders would be placed on the sex offenders register and lead to a criminal record. As a result, defence solicitors must be mindful of the guidance and that in general:
- First time offenders would not usually be prosecuted for such activities;
- Following a finding of such behaviour an investigation should commence to ensure that the young person is not at any risk and the use of established education programmes should be utilised.;
- Where there are persistent offenders, the approach may be more robust (e.g. reprimands).
- Prosecution options should be avoided, in particular the use of legislation that would attract sex offender registration.
For more information Contact us today or request a call back and we will call you at your convenience.
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