Indecent and Extreme Images- The Law

A prosecution for indecent or extreme images is a serious matter. The proceedings themselves are serious and concerning to every defendant but the reputational and family damage will often last longer than any sentence a Court could pass. As such, every case of this nature should be treated with extreme care and attention to make sure that the defendant’s position is properly protected.

In this article leading criminal defence Barrister Quentin Hunt will examine the law concerning indecent and extreme images

If an image is indecent, explicit, pornographic or grossly offensive then the relevant offence will depend on the content. I will examine this further in a moment, but in general terms:

If it is of a child, then it will usually be an “indecent image” and governed by Section 1 and 1A of the Protection and Children Act 1978 (“PCA”) and Section 160 and 160A of the Criminal Justice Act 1988 (“CJA”).

If it is of a pornographic or extreme image of child, adult, or animal, then it is governed by Section 63 of the Criminal Justice and Immigration Act 2008 (“CJIA”).

Both offences are known as “either way” offences and can be heard either in the Magistrates Court or the Crown Court.

These are serious charges and if you find yourself accused of such crimes it is recommended that you avail yourself of specialist legal representation.

What are Indecent Images?

The elements to an offence involving indecent images are that they are:

• indecent
• photographs or pseudo-photographs of
• a child.

In order to prove that a person is guilty of this offence the prosecution must prove all of these “elements” of the offence to the requisite standard – this is “beyond reasonable doubt”, or so the jury are “sure”. The prosecution will also have to identify what way the images have been acquired or what role the accused had in dealing with the image. It will depend on the facts of the case, but it will fall under the following categories:

• taking or making of the image;
• distribution of it;
• possession of it; and/or
• publication of it.

In the recent case of Bateman [2021] 1 Cr App R (S) 54 (385), the Court of Appeal expressed that the categories are not to be construed in a rigid, compartmentalised manner; a judge is to examine “the nature of the image and the extent to which it is merely downloaded, and/or the extent to which some creativity or production has been applied to it.” The judge will then be able to identify the correct categorisation and sentence accordingly.

Each of the categories above are largely self-explanatory, however, they may have wide interpretation, depending on the facts of the case. For example, “taking or making of the image” can be applied broadly by the prosecution. In modern society live-streaming and semi-permanent images are prevalent. In cases such as this, viewing the image or video would not, in the traditional sense, amount to a person having “made” an image. However, the court have found that displaying the image on screen can amount to “making” it (R v Smith and Jayson [2003] 1 Cr. App. R. 13). - The result is that images can be made in ways which can sometimes be surprising to the layman, I have seen examples of cases where images are said to have been made in circumstances such as where a person has received and viewed the image without first knowing what it is, overseas pay-per-view, chat rooms and even images self-produced by children.

“Possession” of the image has also resulted in very serious consequences even when the intentions of the person involved with the indecent image are not sinister. For example, I recently defended an individual who was involved in a WhatsApp group where my client had been sent an indecent video as part of the group chat, had been appalled by it but had not deleted it. The law is rigorously enforced, a conviction even being gained against a high ranking female police officer who was sent an indecent video via WhatsApp by her sister, who was outraged by its content and wanted the person behind it caught.

How are convictions related to Indecent Images sentenced?

As discussed above, the court will consider the categorisation of the offence to identify the appropriate sentence. It will also consider the seriousness of the image(s) that are involved.

The three levels are:

• Category A: Images involving penetrative sexual activity, sexual activity with an animal or sadism’.
• Category B: Images involving non-penetrative sexual activity.
• Category C: Other indecent images not falling within categories A or B.

When charged, the images should be grouped together by the category and by the level to enable the judge to identify the appropriate sentencing guidelines.
If someone is charged under the PCA 1978, 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 CJA 1988 then the maximum sentence is five years custody.

What are Extreme Images?

Unlike “indecent images”, which only relate to children, “extreme images” relate to those who are children, adults, or animals. The elements to an offence of possession of an extreme image are that they are:

•  Pornographic; and
•  Extreme.

The term “pornographic” is defined under subsection 3 of Section 63 of the CJIA 2008 as an image that “is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.” This could apply to the specific image, or it could relate to a serious of images that, with context, amount to being pornographic.

The term “extreme” is interpreted for this offence is defined under subsections 5A, 7 and 7A of Section 63 of the CJIA 2008 as an image which is “grossly offensive, disgusting or otherwise of an obscene character” or explicitly or realistically shows the following:

• “an act which threatens a person’s life”; or
• “an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals”; or
• “an act which involves sexual interference with a human corpse”; or
• “a person performing an act of intercourse or oral sex with an animal (whether dead or alive)”
• “an act which involves the non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis”; or
• “an act which involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or anything else”

It must be found that a reasonable person looking at the image would think that the persons, or animals, involved were real. Artistic representations are unlikely to be punishable under this offence.

To obtain a conviction for this offence, the prosecution must prove that there has been “possession” of the extreme image. The following elements must be proved:

• That the images are in the suspect’s custody or control such that they were capable of being accessed; and
• that the suspect knew they possessed images (even if unsolicited).
See: R. v Okoro (Cyprian) [2018] EWCA Crim 1929

How are offences of Extreme Images charged and sentenced?

The above identifies an offence of possession of an extreme image. However, if the accused person is alleged to have published, or distributed the image, this cannot be charged under the same legislation. Prosecutors instead may charge the accused with an offence under the Obscene Publications Act 1959. This is due to the narrow and limited nature of Section 63 of the CJIA 2008.

In relation to a possession conviction, 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.

Conclusion

It is clear from the above that cases involving indecent or extreme images can be factually and legally complex. I have a further article relating to defences to such charges here. If you find yourself under investigation or charged with such offences, then it may be wise to avail yourself of specialist legal representation. Quentin Hunt is a criminal defence barrister of over 20 years’ experience who has a reputation for fighting to achieve the best results for his clients. Quentin accepts instruction both from solicitors or directly from members of the public. Anyone facing criminal investigation/charge may contact Quentin for a free, no obligation conversation about their case.