In a previous article I examined offences relating to “Indecent” and “Extreme” images. Both offences are 'triable either way' (in the Magistrates Court or Crown Court) and could result in serious consequences should someone be convicted.
If someone is charged under the Protection of Children Act 1978 (“PCA”), then a conviction for indecent images could result in 10 years’ imprisonment as well as registration on the Sex Offenders’ Register. If someone is charged under the Criminal Justice Act 1988 (“CJA”) then, upon conviction, there is a maximum sentence of five years custody. In relation to a conviction of possession of extreme images, if the images involve necrophilia or bestiality then the maximum penalty is two years imprisonment and/or a fine. Otherwise, the maximum penalty is three years’ imprisonment and/or a fine.
As a result, identifying and correctly advancing a defence is extremely important to avoid these harsh consequences.
Defences to a charge relating to either Indecent or Extreme Images
The three common defences that may apply are:
For example, possession by a police officer or legal professional who is working on a case relating to those images and they require access to them as part of completing their ordinary duties at work.
Lack of Awareness
This relates to a lack of awareness of the existence of the material, or it is unknown (or there is no cause to suspect) that the material was indecent or extreme.
For example, in the case of R v Collier  1 Cr. App. R. 9 the defendant owned a CD which had “trailers” at the end of it which advertised other products. This included indecent images. The defendant was able to successfully rely on this defence because he was unaware of the material and had no reason to suspect its existence.
It is important for this defence that the image, once seen or once the receiver is aware of it, is immediately deleted. Furthermore, the image should not be able to be retrieved or stored in any manner on the device or other devices. Otherwise, this defence may not be successfully relied upon.
For indecent images, this defence can only be raised when charged under Section 160(1) of the CJA 1988.
The latter two of these defences are those most commonly pursued in the criminal courts. The circumstances in which images can appear on computers and phones are many and varied; particularly in the age of streaming, torrents and malicious viruses and applications. It is important that any case is properly examined and expert legal advice sought; if necessary expert evidence can be gained to back up any innocent explanation for the possession/making of images.
Indecent Images – Further Defences
Criminal Proceedings and Investigations
Where a person is accused of “making” an indecent image, they may have a successful defence if they can prove that it was necessary to make the image for the purpose of prevention, detection, or investigation of crime or for the purposes of criminal proceedings. This defence will likely apply to police officers and legal professionals who deal with these images in the course of their employment.
This is similar to the “legitimate reason” defence but it can only be raised when someone is charged under Section 1(a) of the PCA 1978.
Marriage and Other Relationships
The elements of this defence will depend on under what provision a person is charged.
If it is Section 1(1)(b) of the PCA 1978 then it must be proved that firstly, the image was of a child aged 16 or 17. Secondly, that at the time of the conduct in question they and the child were married/civil partners or lived together in an “enduring family relationship”. Thirdly, the image must only be of the child or of the child with the accused. These are legal burdens.
The above will also apply when attempting to raise this defence to a charge under the other relevant PCA 1978 provisions and the CJA 1988. However, there is an additional requirement. The accused must also prove that the child consented to the conduct in question, or that they reasonably believed that the child consented. This is an evidential burden.
Section 1(1)(c) of the PCA 1978 also requires one last element. It must be considered whether the accused possessed the image in question with a view to distribute or share it to a wider audience than the child themselves.
Extreme Images – Further Defences
Possession of video recordings of a film that has been classified by the British Board of Film Classifications are excluded from the CJIA 2008. However, if images or extracts are taken from a classified film solely or principally for the purpose of sexual arousal then the exclusion will not be applicable.
Participation in Consensual Acts
To successfully advance this defence, the accused must prove that the individual from the image directly participated in the acts and that there was no non-consensual harm being inflicted on another. This goes further than the question of whether they consented or not. If the harm inflicted went beyond the legal limits then this defence would not apply, even with the consent of those involved.
If the image concerns a human corpse, it must be proved that it was not a corpse.
If the image concerns non-consensual penetration, then it must be proved that it was in fact consensual penetration.
This defence does not apply in any manner to bestiality images.
In addition to the above, the defences of duress, mistake, automatism, and insanity could apply to a case involving indecent or extreme images.
No matter the circumstances of the case, and what defence an accused may feel applies, it is essential that they acquire the appropriate representation to raise and argue any applicable defences. Quentin Hunt is a Criminal Defence Barrister who specialises in cases of this sort. He has a reputation for being thorough, effective and tenacious. Quentin accepts instructions either directly from members of the public or through solicitors and you may contact him for a free, no obligation conversation about any case.