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What counts as an indecent image in 2023?

The accessibility of ‘indecent’ material has increased drastically with the growth of the internet, but not everyone is aware of how the laws around viewing ‘indecent images’ could affect them.

When a child or children are involved, law enforcement agencies and the Crown Prosecution Service will not take such cases lightly if an individual is accused of possessing, distributing, or producing indecent images.

Crimes of this nature can result in prison time, and even unfounded allegations can lead to the complete crumbling of the accused’s personal and professional life.

To help you understand what counts as an indecent image, this article explains what indecent images are, how they are categorised, and what could happen if you are accused of committing an indecent images offence.


Indecent images definition

An ‘indecent image’ is typically a sexual image of a child (under 18 years old).

While it is a criminal offence to create or share indecent images of children, there is no statutory definition of what counts as ‘indecent’ in legislation.

In a trial, the jury may be expected to decide whether an image is considered ‘indecent’ according to objective standards of propriety, regardless of the defendant’s motives.

However, it is generally understood that an indecent image is a photograph or video of a sexual nature depicting a child. This could involve partially clothed or nude children, children posing in a sexual manner, or children engaging in sexual activity.

This includes self-generated images (selfies) and any data stored electronically that can be converted into an image, in addition to pseudo-images (computer-generated or digitally altered images).


What is an indecent images offence?

Under the Protection of Children Act 1978 and the Criminal Justice Act 1988, there are several criminal offences concerning indecent images, which prohibit the taking, possessing, or circulating of indecent images of a child.

Possession of an indecent image involves having ‘custody’ of and storing the image, either physically or digitally – i.e. a printed photograph or an electronic file on a phone or computer – even if the image is later destroyed or deleted.

Making an indecent image is more complicated to define, as it does not actually mean creating an indecent image yourself. For example, an indecent image can be ‘made’ by opening or downloading it, whether accidentally or deliberately – even just by accessing a website with pop-ups.

Distribution of an indecent image refers to sharing indecent images with other people. This could be showing them in person, forwarding files for them to keep, posting the images online, or simply offering to do any of these things.

Production of an indecent image is the actual creation of an original indecent image, such as taking the photograph, recording the video, or producing the electronic file yourself. Originating indecent images is the most serious of these offences.

Under the Serious Crime Act 2007, it is also a criminal offence to encourage or assist in the commission of any of these indecent image offences. This can involve persuasion, threats, advice, or any behaviour helping the perpetrator to commit the offence or to avoid detection.

If a defendant is convicted of such an offence, the court sentence will depend on the severity of the indecent images – whether they are considered Category C, Category B, or Category A.


What are Category C indecent images?

Category C images are the least severe – broadly defined as indecent images that are not classed as Category A or Category B, but still depict ‘sexually suggestive’ content.

These can be revealing or nude images of a child involving ‘erotic’ posing, and could include family photographs or commercially published images.

The jury must objectively decide whether the image is sexual in nature, taking the defendant’s intentions into consideration when deciding whether it is indecent or not.

As the least serious category, possessing Category C images can result in a high-level community order, while distributing or producing them can result in a prison sentence of 1 to 3 years.

If the images the defendant is accountable for fall into multiple categories, the court could impose concurrent sentences, taking aggravating factors into account.


What are Category B indecent images?

Category B images are more serious than Category C, but not as severe as Category A. They typically depict non-penetrative yet still explicit sexual activity involving a child.

These images could depict an individual child, a child engaging in such activity with another child, or an adult either present with the child or touching them explicitly.

It does not matter whether the adult directly engages in a non-penetrative sexual act with the child or is simply present in the image, as it will still be a Category B offence.

Being found guilty of possession of or ‘making’ Category B images can lead to a custodial sentence of at least 26 weeks. Distribution of Category B images can result in at least 12 months in prison, while the prison sentence for producing them could be up to 4 years.


What are Category A indecent images?

Category A images are the most extreme classification, considered ‘obscene’ images that depict a child subjected to penetrative sexual activity or sadism.

These indecent images can depict gross sexual assault on a child, bestiality (sexual activity with animals) involving a child, or physical pain being inflicted on a child.

As the highest level, conviction of a Category A indecent images offence will have the harshest punishment, almost always resulting in a prison sentence.

Possessing Category A indecent images could lead to 1 to 3 years in prison, while ‘making’ a Category A image can result in at least 6 years in prison.

Sentences for the distribution of Category A images start from 2 years, and from 6 years for production, depending on the nature of the sexual activities depicted.


How do the police find indecent images?

The police and other law enforcement authorities, including Child Protection Services, frequently investigate potential indecent image offences.

They run various programmes that detect internet users searching for or accessing indecent images online, and then use legal powers to request the personal details registered to these IP addresses.

Once individuals have been identified, police will carry out intelligence checks to identify risks and gather data that could help them obtain a warrant from the Magistrates’ Court.

Evidence can be gathered from sources such as the dark web, peer-to-peer file sharing, smartphones and tablets, internal and external computer hard drives, or memory sticks and discs.

Police will analyse the contents of seized devices to recover any indecent images, which are then compared to images contained in the Child Abuse Image Database (CAID).

This database exists to ensure consistency in indecent image grading, while also saving time and limiting distress to staff caused by having to repeatedly view and classify such images.

CAID uses metadata comparisons to assign grades to images, and once an image has been graded by three separate police forces, it can be stored as an approved grade on CAID – eliminating the need for the same image to be viewed and graded again.

However, if the recovered images are not already in the database, they must be manually graded according to the latest guidance. Itemised factors include the age and vulnerability of depicted children, discernible distress, pain, or intoxication, and the number of victims.

It is common for images recovered from a defendant’s devices to belong to more than just one category, with the highest considered the ‘lead’ offence.


What should you do if you’ve been accused of an indecent images offence?

If you or someone you know are accused of an offence relating to indecent images of children, the best thing to do is to speak to a specialist defence solicitor as soon as possible.

The sensitive and complex nature of such allegations and crimes means that the case against you will be taken extremely seriously by the courts – including the court of public opinion.

With the consequences being potentially life-ruining, it is essential to have a legal expert on your side who can help you to build a strong defence for an indecent images case.

An indecent images solicitor can advise you throughout the investigation and help you prepare for the trial and its outcome – possibly avoiding a conviction or reducing a custodial sentence.