Over the last few decades, the internet has dramatically transformed almost every aspect of life as we know it. Technology develops so fast in such a short time that governments can’t always keep up with what’s happening online – which is why cybercrime is a serious cause for concern.
There are many areas of the internet that are loosely moderated, if at all – especially with the growth of the anonymous ‘dark web’. These provide places for criminals to carry out illegal activities online, including accessing illegal material, like indecent images of children.
Lots of people probably don’t realise that their online activity is typically monitored by various providers, who can report suspicious activity to the police in your area based on the IP (Internet Protocol) address of the device you’re browsing from.
Even if you were to accidentally stumble across indecent material online, you could be reported to the police, and treated as a suspect in the commission of a criminal offence.
This can be an incredibly stressful situation for someone to find themselves in unexpectedly, as offences involving children are taken extremely seriously by legal authorities, with potentially severe sentences if taken to court and convicted.
If you have never known anyone who has been investigated by the police before, you may want to know what happens when the police investigate an indecent images offence.
Here’s what can be expected from police and court procedures for indecent images investigations.
What is the definition of an indecent image?
Also known as child pornography, images depicting children under 18 years old – including photographs, videos, and digital files – are considered indecent images.
The most serious of these images will depict children being subjected to sexual acts or posing in a sexually provocative manner, but indecent images can also show others doing these things in the presence of a child.
If an indecent images case goes to court, the jury must decide whether the images are indecent according to standards of propriety. As this is an objective test, the motive of the defendant is irrelevant to this analysis.
How do indecent image investigations work?
Various law enforcement agencies, including the National Crime Agency and Child Protection Services, investigate potential criminal offences by running programmes that detect suspicious online activity, then tracking IP addresses to identify the perpetrators.
The IP address will be provided to the police in that region, who can make an application under the RIPA Act (Regulation of Investigatory Powers Act 2000) to obtain the suspect’s personal details from their internet provider and properly identify them.
The police can then gather more information on the individual to identify any further risks, and apply to the Magistrates’ Court for a warrant to search the suspect’s property.
Depending on the severity of the offence and the amount of evidence gathered at this point, the police may visit the suspect’s address to make contact and execute the search warrant, or to directly arrest them and proceed with seizing evidence from their residence.
If the suspect is arrested, the police will take them to the police station to be interviewed. Otherwise, they will inform the suspect when they must come to the police station themselves for a voluntary interview. In either case, the suspect should make sure they have legal representation.
Devices seized for indecent images
When an individual is accused of an indecent images offence, the police can act on a warrant to gather evidence from their home or place of work, including the seizure of devices such as smartphones, tablets, laptops, computer hard drives, discs, or memory sticks.
As part of their investigation, the police will examine these devices and their contents, including internet activity and ‘cloud’ storage as well as downloaded and stored files. This extensive digital forensic analysis can take several months to complete.
Many people might try to delete their online history or files, or even dispose of their devices, out of panic. However, this is one of the worst things you could do, as you may lose evidence that supports your innocence and be accused of obstructing justice.
The police have access to technology that can recover digital files, even if they were deleted, and track how, where, and when the files may have been accessed or moved. This activity can be used to prove or disprove that there was awareness and intent in possessing or viewing them.
Any indecent images that may be recovered from a suspect’s devices are run through the Child Abuse Image Database (CAID), which lets the police know whether these images have been recovered previously and which grading they were given.
The CAID assigns a category to each indecent image according to its severity and the type of activity it depicts – if it is a new image, the police must follow the relevant guidance to assign a grade from C to A. This will affect the charges against the suspect and, if convicted, theirsentence.
Indecent images police interview
Investigations do not always proceed exactly the same way. The police might interview a suspect under caution on the same day as they seize their devices, or they might analyse the devices first before arresting the suspect or inviting them to a voluntary interview, depending on their findings.
When attending an interview with the police, what you say and do will typically be recorded, which can later be used against you if you are charged and taken to court.
You will be given the opportunity to share your account, either admitting to criminal behaviour or putting a defence forward, but it may not be in your best interests to answer all of the police’s questions. It’s crucial to have an experienced solicitor to advise you through the interview.
Otherwise, you may end up saying or doing something that incriminates you by accident – whereas if you follow legal advice, it could increase your chances of avoiding a criminal charge.
Following the interview, the police will either proceed to charge and arrest the accused individual, release them on bail with specific conditions, release them with a caution, or release them and close the investigation with no further action.
What happens if you are charged with an indecent images offence?
If the police decide to take further action, they will provide the defendant with a charge sheet explaining what they are being charged with and which laws they have broken.
The Crown Prosecution Service (CPS) will make the decision on which charges are pressed, depending on which laws prohibit the specific criminal actions involved in the case.
Prosecutors must consider what proof will be required and whether there is a realistic prospect of conviction for a charge depending on the evidence that has been found.
Potential charges for an indecent images offence include:
• Possessing an indecent image (having it saved in your possession)
• Making an indecent image (downloading or accessing it)
• Distributing an indecent image (posting it online or sharing it with others)
• Producing an indecent image (creating it yourself)
• Encouraging or assisting another person with committing any of these offences
Some of these offences are much more serious than others, such as producing or distributing indecent images, which will therefore have more severe legal punishments.
The CPS will refer the case to either the Magistrates Court or Crown Court for a hearing, at which stage, you will need to have prepared a strong legal defence with the help of a specialist solicitor if you want a better chance of the charges being dropped.
Indecent images sentencing
If you are taken to court for an indecent images offence, the CPS must prove beyond reasonable doubt that your interaction with the images was deliberate – that you intentionally or knowingly accessed, possessed, distributed, or created an indecent image of a child under the age of 18.
There are a few possible defences for an indecent images charge if you did not purposefully engage with them. For example, if you had a legitimate reason, such as official research; it was an accident that you were unaware of, such as a pop-up virus; or you received an unsolicited indecent image from someone else and did not keep it.
If any of these arguments apply to your case, a defence solicitor can help you to build a statutory defence as early as possible – which could result in dismissed charges or a reduced sentence.
If you are convicted of an indecent images charge, the sentence given by the court will depend on the charge and the category of indecent images involved. The categories range from C to A, with Category A offences being the most severe and therefore carrying the highest sentences.
Producing indecent images can result in 18 months–9 years in prison if convicted, while being found guilty of distributing indecent images comes with a sentence from 13 weeks–5years.
Making (viewing or accessing) or possessing indecent images are lesser offences than production or distribution, but still very serious. Sentencing can range from a medium-high level community order or 26 weeks custody to 2 years in prison.
The court may also order you to register as a sex offender for a specified period of time and under a set of behavioural conditions, once you have served your sentence.
Mitigating factors for indecent images
When determining the sentence for an indecent images conviction, the court must consider any aggravating or mitigating factors that may apply to the case, which could result in adjusting the penalty to a higher or lower sentence.
In addition to the categorisation of the indecent images, the severity of the following factors will also affect the severity of the sentencing:
• Number of indecent images
• Content of the indecent material
• Age and vulnerability of the child(ren) depicted
• Actions taken to view, possess, share, or produce the images
• Amount of distress or pain caused to the victim(s)
Aggravating factors that are likely to increase the sentence include a high volume of indecent images, the child or children depicted being extremely young and/or vulnerable, discernible pain caused in the images, or the accused having previous convictions relating to this offence.
On the other hand, there may be mitigating factors that can reduce the sentence, such as:
• No previous, recent, or relevant convictions
• Otherwise good character and conduct
• Expressing genuine remorse for actions
• Plans to take steps to address criminal behaviour (or steps already taken)
• Age, lack of maturity, or a mental disorder or learning disability affecting responsibility
It’s imperative for the individual to seek support from a solicitor, who can identify mitigating factors in their case and build on them to present the best possible mitigation for their sentencing.
Doing so could be the difference between a community order and a prison sentence.
What to do when accused of an indecent images offence
Allegations of an indecent images offence can have drastic consequences outside of charges and sentencing – impacting your reputation, social relationships, and career for the rest of your life.
That’s why it’s so crucial to get the right legal representation as soon as possible if you find yourself or a family member accused of committing an indecent images offence.
When attending police interviews, guidance from a solicitor who has expert knowledge of the law concerning indecent images and experience in defending such cases can make all the difference.
To give you the strongest chance of avoiding charges if possible, avoiding conviction if taken to court, or reducing your sentence if convicted, the best thing to do is to contact an indecent images solicitor at the earliest opportunity to manage your case.
