Indecent and Prohibited Images of Children

• Introduction
• Evidential considerations
• Public Interest and Out of Court Disposals
• Selection of charges
• Sentencing and Ancillary Orders

Introduction

This guidance provides practical and legal guidance to prosecutors dealing with cases of indecent and prohibited images of children.

Evidential considerations

This section deals with:

• Common elements of the offences
• Available offences
• Defences
• Deleted images
• User-to-user services and live-streaming
• Image handling
• The streamlined approach to low-risk offenders
• The indictment
• Jurisdiction

Common elements of the offences

Indecency

It is for the tribunal to consider the issue of indecency by reference to an objective test, rather than applying their wholly subjective views of the matter (R v Neal [2011] EWCA Crim 461) taking into consideration the age of the child (R v Owen (1988) 86 Cr. App. R. 291). The circumstances in which the photograph came to be taken and motive of the taker are not relevant as it is the photographs of the child which must be indecent, not the defendant’s conduct: R v Graham-Kerr (1989) 88 Cr. App. R. 302; R v Smethurst [2002] 1 Cr. App. R. 6.

Photograph or Pseudo-photograph

The section 7 of the Protection of Children Act 1978 (PCA 1978) definition of photographs and pseudo-photographs applies to offences under section 160 Criminal justice Act 1988 (CJA 1988). Care should be taken to avoid inadvertently charging offences of possession of a prohibited image of a child (section 62 of the Coroners and Justice Act 2009) as that offence specifically excludes indecent photographs, or pseudo-photographs of children, as well as tracings or derivatives of photographs and pseudo-photographs.

In deciding whether the image is a photograph/pseudo-photograph or a prohibited image, prosecutors should ask themselves whether the image, if printed, would look like a photograph/ pseudo-photograph. If it would, then it should be prosecuted as such. Some high-quality computer-generated indecent images/AI Generated images can pass as photographs and it is possible to prosecute on the basis of quality computer-generated images as pseudo-photographs. Technology exists to alter photographs to appear as though they are AI-generated images. The law applies equally to photographs and pseudo-photographs, regardless as to their method of creation.

Child

A child is a person under 18 (s.7(6) of the PCA) and the age of a child is a finding of fact for the jury to determine. Expert evidence is inadmissible on the subject as it is not a subject requiring the assistance of experts (R v Land [1998] 1 Cr. App. R. 301).

Making

“To make” has been widely interpreted by the courts and can include the following:

• opening an attachment to an email containing an image: R v Smith; R v Jayson [2003] 1 Cr. App. R. 13
• downloading an image from a website onto a computer screen: R v Smith; R v Jayson [2003] 1 Cr. App. R. 13
• storing an image in a directory on a computer: Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248
• accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism: R v Harrison [2008] 1 Cr. App. R. 29
• receiving an image via social media, even if unsolicited and even if part of a group
• live-streaming images of children

The breadth of what constitutes “making” – see below, Selection of Charges – means it will often be the appropriate charge rather than “possession”. When a device is seized, it may be the case that an image is stored in such a way that it is not possible to say that the suspect possessed it, because it is not accessible to them. Even if it is not accessible, however, the evidence may show that they had knowingly “made” the image.

Possession

Possession is not defined in the CJA 1988, the PCA 1978 or the CJA 2009. The test to determine possession was set out in R v Okoro (No. 3) [2018] EWCA Crim 1929: the prosecution must prove that the images are within the accused’s custody or control such that they were capable of accessing them and they must know that they possess the images. The accused need not know that the photographs were indecent.

Grossly offensive, disgusting or otherwise of an obscene character

These terms are not intended to be read as three separate concepts. Section 62(2)(c) CJA 2009 outlines that “grossly offensive” and “disgusting” are examples of “an obscene character” and not alternatives to it. The terms reflect the ordinary dictionary definition of “obscene”. This is not a technical definition.

Available offences

The offences set out below require consent of the DPP to institute proceedings. This can be given by a Crown Prosecutor by virtue of section 1(7) Prosecution of Offences Act 1985.

In Walker [2016] EWCA Crim 751 it was held that when a Crown Prosecutor decides that there is sufficient evidence to charge, and then identifies the relevant offence and notifies the police of that decision, then if the prosecutor instituted proceedings personally no separate consent is necessary, and if the prosecutor requires the police to charge then notification of the decision constituted the giving of consent. Accordingly, there is no need to complete a separate record of the consent.

Section 1 PCA 1978

There are four sub-paragraphs under section 1(1) PCA 1978 describing the conduct that is illegal in respect of indecent images of children.

• Section 1(1)(a): take, or permit to be taken or to make
  These words are to be given their natural and ordinary meaning: R v Bowden [2000] 1 Cr. App. R. 438. Where the offence is put on the basis of ‘taking’ the prosecution must prove that the images were taken deliberately and intentionally: R v DM [2011] EWCA Crim 2752. See above for the wide interpretation of “to make”.
• Section 1(1)(b): distribute or show any such photograph
  A person is to be regarded as distributing indecent photographs or pseudo-photographs if they part with possession of it to another person, or if they expose or offer it for acquisition by another person: section 1(2) of the PCA 1978).
• Section 1(1)(c): have in his possession any such photograph with a view to it being distributed or shown by himself or others 
  See above for the likely requirements to prove possession. The words "with a view to" requires that the distribution or showing must be at least one of the suspect’s purposes, but not necessarily their primary purpose: R v Dooley [2006] 1 Cr. App. R. 21. The anticipated showing must be to a person(s) beyond the possessor of the photographs (R v T (1999) 163 JP 349) and a person who stores indecent photographs on their computer and enables others to view them via the internet by the provision of a password possesses them with a view to them being shown (R v Fellows and Arnold [1997] 1 Cr. App. R. 244).
• Section 1(1)(d): publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows any such photographs or intends to do so 
  Publish is not defined by the act; the ordinary dictionary definition may be used.

Section 160 CJA 1988 – possession of indecent photograph of a child

Section 160 of the CJA 1988 criminalises the possession (rather than making) of an indecent photograph of a child.

Section 62 CJA 2009 – possession of prohibited images of children

This offence is targeted at non-photographic images including Computer-Generated Images (CGIs), cartoons, manga images and drawings. It criminalises the possession of images of a child which are intimate or depict sexual activity, which are pornographic and also grossly offensive, disgusting or of an obscene character. Section 62 of the Coroners and Justice Act 2009 defines “pornographic” and the precise images which are prohibited.

Section 69 SCA 2015 – possession of a paedophile manual

Section 69 of the Serious Crime Act 2015 criminalises the possession of any item that contains advice or guidance about abusing children sexually. Three statutory defences cover: possession for a legitimate reason; absence of reason to suspect the items contained such advice or guidance having never read, viewed or listened to the item; having the item sent unrequested, and not keeping it for an unreasonable time.

Sections 44 and 45 Serious Crime Act 2007– encouraging or assisting an offence; section 8 Accessories and Abettors Act 1861

A person who is present when indecent images of children are made, even if passive, may depending on the circumstances be guilty of encouraging or assisting the commission of that offence, or aiding and abetting it (sections 44 and 45 of the Serious Crime Act 2007 and section 8 of the Accessories and Abettors Act 1861). Care should be taken in considering the authorities as to passive presence during the commission of a crime when dealing with cases such as these, for instance presence during live-streamed sexual abuse: R v Coney (1882) 8 QBD 534 and R v Mason and others [1996] Crim LR 325.

Where the sexual offence(s) encouraged are outside of England and Wales the Serious Crime Act 2007 provides that this may be prosecuted provided the Attorney General’s consent is obtained (Schedule 4). See the Consents to Prosecute prosecution guidance. However, see below as to whether there is jurisdiction to prosecute the substantive offence.

Defences

Legitimate Reason

This defence applies to the offences in sections 1(1)(b) and 1(1)(c) PCA 1978 and in section 160 CJA 1988, namely offences of distributing or possessing with a view to distributing indecent images of children and possessing such images.

The defendant must prove that they had a legitimate reason for the conduct in question, see section 1(1)(4)(a) PCA 1978 or section 160(2)(a) CJA 1988. "Legitimate reason" is not defined in either Act. In Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248, which dealt with a claim to legitimate reason on the basis of research into child pornography, it was held that it is a pure question of fact in each case.

Lack of Awareness 

This defence applies to the offences in sections 1(1)(b) and 1(1)(c) PCA 1978 and in section 160 CJA 1988, namely offences of distributing or possessing with a view to distributing indecent images of children and possessing such images.

The defendant must prove that they had not themselves seen the photograph(s) in question and did not know nor have any cause to suspect them to be indecent (section 1(1)(4)(b) PCA 1978 and section 160(2)(b) CJA 1988).

Marriage and Other Relationships

Section 1A PCA 1978 and section 160A CJA 1988 provide confirmation that a defence is available for photographs of a child aged over 16 where the defendant is married to, or in a civil partnership with, them. The defence does not remove the requirement for consent from the child in question to the photograph: section 1A(4) of the PCA 1978 and section 160A(4) CJA1988.

Criminal proceedings and investigations

The CPS and the then Association of Chief Police Officers (ACPO), now the National Police Chief's Council (NPCC), signed a Memorandum of Understanding which provides guidance to those who have a legitimate need to handle indecent images of children by setting out how the defence provided in section 1B of the PCA 1978 may be applied. The Memorandum provides guidance to the Police Service, CPS and others involved in the internet industry, to create the right balance between protecting children and effective investigation and prosecution of offences. The defence is applicable to an offence under s1(1)(a) PCA 1978 only.

In brief, those working in the criminal justice system, the security services or members of GCHQ who can prove that the making of the photograph was necessary for them to carry out their functions in that role have a defence to the offence. The legal burden of proof is on the defendant.

OFCOM Defence

Section 214(1) of the Online Safety Act 2023 amended Section 1B of the Protection of Children Act 1978 to insert an additional section, creating a defence to the offence of making an indecent photograph of a child in circumstances where the defendant is a member of OFCOM, employed or engaged by OFCOM/assisting OFCOM in the exercise of their online safety functions, and the photograph/pseudo photograph is made for the purpose of any of OFCOM’s online safety functions, as defined in section 235 OSA 2023. This commenced on 26 October 2023.

Section 213 of the OSA 2023 also includes a similar defence for the publication of obscene articles, and commenced on 10 January 2024.

Unsolicited photographs

This defence that the photographs were unsolicited (s. 160(2)(c) CJA 1988) applies to s160(1) CJA 1988 only. The defendant has a legal defence if they can prove that the photograph in question was unsolicited and that they did not keep it for an unreasonable time (R v Collier [2005] 1 Cr. App. R. 9). The issue of reasonableness is a matter for the jury to decide on the facts of any particular case.

Prohibited images

The defences are outlined in section 64 of the Coroners and Justice Act 2009 (CJA 2009) for offences under section 62(1) CJA 2009. These defences are the same as some of those under section 1(1)(4) PCA 1978 and section 160(2) CJA 1988. There is a further defence for this provision, in relation to classified works, in section 63.

Deleted Images

Whenever a new file is created on a device, the operating system finds available space and allocates that space to the file. Unallocated space (or ‘clusters’) is space that is not allocated to active files within a file system.

As possession requires the images to be in the custody or control of the suspect, if images have been deleted, the following considerations are relevant when prosecutors are considering what, if any, charges can be brought (R v Porter [2006] 1 Cr. App. R. 25; R v Leonard [2012] 2 Cr. App. R. 12):

1. Where the images are stored on the device
2. The means by which they could be retrieved in the sense set out above
3. Whether the suspect has the wherewithal to retrieve them, i.e. the technical knowledge/software/equipment required to do so.

Even if an image is located in ‘unallocated clusters’ and cannot be retrieved, provided it can be proved that the image was downloaded or in some way transferred onto the device, a charge of ‘making’ an indecent image can follow. Evidence of the search terms used by the suspect and the dates of searches for indecent material will assist in establishing a case for the making of indecent images.

User-to-User Services and Live-Streaming

Technology used to commit offences may include peer-to-peer file sharing software, social media platforms and messaging applications, on the open or ‘dark’ web. Peer-to-peer software allows “peers” (individual computer systems) to connect to each other over the internet to share files. There are numerous software programs that peers can connect to and then share files. Peer to peer file sharing may involve the distribution, making and possession of indecent images of children.

Live streaming technology allows real time media viewing over the internet. Images or videos viewed via a live stream, often leave no forensic trace on the device. If a person has viewed live streamed IIOC, they will still have ‘made’ images by causing them to be displayed on their device, and a charge contrary to s1(1)(a) PCA 1978 should be considered. See further R v Smith; R v Jayson [2003] 1 Cr. App. R. 13, where the court accepted that causing an image to be displayed on a computer screen amounted to making it. There are numerous methods to live stream IIOC, including:

1. Overseas pay per view. This usually involves an organised network where abuse of children carried out abroad is streamed by offenders in the UK. The network is usually for financial gain – either by organised criminal networks and/or impoverished families. Prosecutors should consider obtaining suspects’ bank statements as small and irregular amounts paid frequently by UK-based customers to recipients in lower-income countries may indicate such offending.
2. Chat rooms and online platforms. Chatrooms can also have cross-jurisdictional elements or just be UK based. Specific ‘rooms’ or ‘conferences’ are set up online for the purposes of showing child sexual abuse. Offenders join the rooms by invitation or having searched them out. Either live or pre-recorded abuse can be shown, and in some cases offenders can interact with each other in a variety of ways including directing the manner of the abuse.

Images and image handling

Child Abuse Image Database (CAID) and police categorisation of images

The Child Abuse Image Database (CAID) was created to assist the police with cataloguing and grading of Indecent Images of Children (IIOC), and victim identification.

It is a secure database of IIOC known to UK law enforcement compiled from IIOC seized worldwide, including the UK. CAID uses software to review files found on any seized device and compares them against images held within the database.

CAID processes images using 'hash’ values in the image metadata, and once the image has been allocated the same grade by three separate UK police forces it will be stored on CAID as a 'trusted' image. This allows the CAID grading to be used when the same image is seen again in future investigations without the need for further viewing by any individual, saving time and avoiding unnecessary additional distress to investigators.

Where images on the suspect's device(s) are found on CAID, investigators should provide prosecutors with a Streamlined Forensic Report (SFR1) identifying the total number of CAID images found for each category.

Officers should select three representative image examples from each category and include a sufficiently-detailed description of each in the SFR1 or an exhibited schedule of images. The descriptions should include factors relevant to sentence, including the apparent age of the victim, any discernible pain or suffering, and whether the child appears intoxicated or drugged. The image reference number should be included to allow cross-referencing, or viewing of the selected image if the officer description is disputed.

Devices may contain IIOC that are not recognised by CAID. Officers will need to provide a summary description of these images once viewed and add them to CAID in order to begin the process of acquiring their 'trusted grade'. Officers will be considering each image to determine whether it reveals any contact offence, or whether the suspect is close to the creation of the image.

Prosecutors should exercise their judgement as to whether the summary prepared by the police in respect of both CAID and “new” images provides sufficient description to determine the appropriate charges and provide sufficient information on which a court could sentence. This can include:

• Whether the image is said to be of Category A, B or C
• Sufficient detail of what is depicted to understand why that categorisation applies
• The number of such images
• Whether any of the aggravating factors set out in the Sentencing Guidelines are present

Viewing the Images

The images in the case, whether computer generated, pseudo images or otherwise, should only be viewed if it is strictly necessary to do so. Viewing of the images otherwise only compounds the original offending. It is important that prosecutors are familiar with the nature of the images in a case and have a proper understanding of what comes within each category but this does not necessitate viewing the images themselves.

The decision to charge must be taken by a prosecutor given the requirement for DPP’s consent. The prosecutor should take the decision based on the description provided by the police. If the description needs to be improved, the police should be asked to do so. The prosecutor should not resolve the question of description by viewing the images because the defence and the court will also require a proper description. It is only in an exceptionally rare case where the description identifies that the question of indecency and/or age is genuinely an issue, and that is material to the charging decision, that it might be necessary to make arrangements to view the images. In most cases, the basis on which it is said the images are indecent and that the child is under 18 is unambiguous. “Borderline” images may not need to be resolved where they are but one of many images.

If it is said that it may be strictly necessary for the court and/or defendant to view the images, prosecutors should first establish what is in issue. The real issues in the case must be established. Most often this is a denial that the defendant possessed or made the images, not their nature. If the defendant contends that the police have mis-described the images and they are not in fact indecent and/or do not in fact depict children under 18, they must say so. A prosecutor should insist on the real issues in the case being identified, and be clear about why they necessitate viewing of the images, before arrangements are made for this exceptional step to be taken. A categorisation exercise properly carried out should obviate the need for the sentencing judge to view the images: R v Pinkerton [2017] EWCA Crim 38.

Typically, the fact that images found are indecent images of children is not normally disputed in court. Where the only issue in the case is possession, knowledge or access, there is no requirement for the images to be viewed. Similarly in cases involving low-risk offenders it should be unnecessary for prosecutors to view the images. In low-risk cases, the SFR need only describe the selected representative images.

If it is strictly necessary to view the photographs/pseudo-photographs, because of the issue(s) in the case, the prosecutor should do so on police computer equipment at a suitable, agreed location. Media containing indecent images of children should not in any circumstances come into the possession of CPS prosecutors or computer equipment. The Departmental Security Unit and senior management should be consulted in any scenario where exceptionally it is proposed that such media should be provided to the CPS.

Provision of images to the defence

An accused should only be permitted access to images in the company of their legal team. Defence solicitors have a duty to defend their clients properly, whilst law enforcement agencies have a duty to ensure that they do not unnecessarily create more indecent images of children or compromise sensitive confidential material (Crown Prosecution Service v LR [2010] EWCA Crim 924: a case in which access was required because age of the child was in issue). Access must be conducted in a way which enables the defendant to have private and confidential discussions with their legal advisers, unsupervised and unobserved by police officers or CPS representatives.

In order to decide whether or not to release such material, the following approach should be adopted:

• Where a technical examination of the evidence is requested, a meeting should take place between defence and prosecution technical experts in order to agree what should be supplied. If it is necessary, the defence technical witness may be given private (or controlled) facilities to examine the images at law enforcement premises at reasonable hours.
• If the person in charge of the investigation considers it necessary, then the work may take place other than at police premises if the defence technical witness signs an appropriate undertaking.
• If the defence team cannot for good reason view the indecent images at a police station, for example in cases where the defendant is in custody, the prosecution should correspond with the defence in order to agree access to the indecent images by the defence team. Such access can be at an appropriate venue for example at court, defence solicitor's office or counsel's chambers.
• In all three scenarios, where no agreement is reached, the case should be referred to the court to hear argument and, if necessary, issue appropriate directions.
• If the court directs that copies of the indecent images should be supplied to the defence team, prosecutors should ensure that the order contains a proviso that the material is to be released only upon receipt of a signed undertaking as to the safe custody and control of the images etc.
• In the case of a technical witness, prosecutors should ensure that the order contains a proviso that the material is to be released only upon the technical witness signing an undertaking as to the safe custody and control of the images etc. Breach of the undertaking may leave the signatory open to prosecution and disciplinary action from their professional body.

Streamlined Approach to Low-Risk Offenders

In certain circumstances, a streamlined approach should be used when prosecuting IIOC offences. Where appropriate this approach allows prosecutors to make charging decisions based on the results of the initial CAID analysis. This does not prevent a later decision to bring additional charges, if appropriate, but is designed where a swift response is in the interests of justice and public safety, to achieve an expedited outcome. The streamlined approach should mean that timescales for technical examinations will be considerably reduced allowing a greater number of offenders to be investigated.

When to Use this Approach

This approach may only be used if the following three factors apply:

1. The IIOC suspect is assessed by investigators to pose a low risk in relation to children. This assessment is carried out using KIRAT (Kent Internet Risk Assessment Tool).
2. The investigation is limited to offences relating to the making, possession or distribution of known IIOC, rather than the making or taking of new photographs of children. The scope of the investigation may be determined by what is found on the initial searches of devices, other evidence obtained or intelligence.
3. All relevant digital storage devices have been subject to 'triage' using CAID. Triage typically involves using software to review the files on the device along with key words and hash-set databases in order to determine whether the device holds anything of evidential value which may need full forensic examination. A device containing only first-generation images of contact abuse may not be identified by the triage process.

If these criteria are met, prosecutors should apply a proportionate assessment to the number of images presented to a court in order to deal with these cases justly, efficiently and expeditiously.

Where the streamlined approach applies, prosecutors need not request the examination of further images for the purpose of making a charging decision where the investigators have examined and categorised:

• at least 250 images at Category A or
• where there are no Category A offences, a total of at least 1,000 images.

Irrespective of use of the streamlined approach charges should always reflect the seriousness and extent of the offending, as well as providing adequate sentencing powers for the court.

The Proportionate Assessment

This encompasses the following principles:

1. Each case should be decided on its own facts.
2. Proportionality means that investigators, having assessed the suspect as 'low risk', must make a decision as to whether it is necessary to examine each seized device in order to identify and categorise every indecent image against the effect this would have on the likely final sentence. This does not mean that prosecutors must charge a minimum proportion of the total number of images or require the investigators to examine a minimum proportion.
3. A consideration of proportionality is not intended to curtail an investigation into other offences or the examination of images in order to identify victims. The identification of children at risk remains of paramount importance, but need not delay a charging decision for making or possession of IIOC. The investigators should continue to view images for the purposes of victim identification after a prosecutor has advised that there are sufficient images for the purposes of a making/possession charge.
4. The Sentencing Guideline sets the starting points for sentences based on the category of the images with less emphasis than previous guidelines on sentencing by reference to the number of images alone. A 'high volume of images' is now only one of 18 aggravating factors.
5. What constitutes a 'high volume' is not defined. In general, once the number of IIOC reaches a certain threshold then inclusion of additional such images will have limited effect on the final sentence, especially when other aggravating and mitigating factors are present.
6. Due to the proliferation of material on the internet, the increasing range of devices capable of storing material, exponentially increasing storage capacities and increased download speeds the number of digital images and movies on seized exhibits is constantly increasing.
7. Neither the Sentencing Guideline nor case law therefore indicate whether a 'high volume' is an absolute standard or is relative to the increasing size of collections generally. It is suggested that a 'high volume' should be an absolute standard, such that, for example, 250+ Category A images is always a high volume regardless of the total number of images a suspect possesses. Otherwise, applying a relative standard means that an increased prevalence of IIOC would be likely to make the offences less serious. An absolute standard with a proportionate approach to charging also supports the underlying proposition that, above a certain threshold, sentence is unlikely to be affected.

Any Remaining Images

Once the CAID images have been identified, it is important that images at a higher level are not missed. If a large proportion of images identified at the triage stage did not match CAID images and remain unexamined it may be proportionate for investigators to continue searching for Category A images even after the threshold has been reached.

Where some of the devices have not been subject to full forensic analysis prior to interview, but the triage process has indicated the presence of IIOC or evidence of other offences, the defendant should be invited to tell the investigators about what might be found on those devices at the interview stage. It is good practice to warn them that the remaining devices may be examined at a later date (or may still be in the process of being examined for the purposes of victim identification) and may result in further charges. An abuse of process argument is unlikely to be successful on the basis of legitimate expectation if the defendant is later charged with further offences based on evidence obtained from devices not fully examined prior to interview, unless the defendant acted to their detriment. In many cases the examination of additional images should not delay charging the suspect for making those images recognised by CAID. Careful thought will need to be given as to whether the suspect should be charged in respect of any additional images found, particularly if the further images arise from the same device as the existing charges relate to, as this increases the proportionality argument and the possibility of an abuse of process.

These 'new' images will assist in future cases when they are added to CAID however prosecutors should remember that the number of images found is only one aggravating factor in the sentencing guidelines. Unless there is a significant number of additional images found, or they clearly demonstrate further aggravating factors, prosecutors may not need to bring additional charges.

Opening a Streamlined Approach to the Court

In cases where the streamlined approach has been used, prosecutors when opening a case at trial or sentencing, should indicate this fact. The OIC's statement should cover this in addition to:

• An estimate of the number of potential additional images identified at triage, although unless identified as such by the defendant it will not be possible to state that these are IIOC.
• An explanation of what has not been examined.
• Parameters of the examination undertaken i.e. basis of selection of files and dip checks etc.
• The fact that the defendant has been assessed as 'low risk'.

The descriptions in the streamlined forensic report or schedule of images, should provide sufficient information to enable the judge to pass sentence without the images being provided to the court.

The indictment

Ordinarily images should be grouped together in accordance with the three sentencing guideline categories. The indictment should therefore have a maximum of three counts for any type of offence; one count for each of category A, B and C. The SFR should provide a table setting out the total numbers of images in each case, and prosecutors should use this document to obtain the total numbers of images in each category, across all devices interrogated. It is good practice for prosecutors to specify within each count how many of the images relate to a ‘still’ image and how many relate to ‘moving’ images.

An ‘explanation’ of what each count represents should follow the particulars, for example:

“This count represents the total number of Category A still and moving images found on Exhibits JDW/1, and JDW/2.”

The known issues in the case should be reflected in the form of the indictment, to allow a jury to easily understand the issues and enable their verdicts to reflect their conclusions. For example, if a defendant disputes a proportion of the images were 'made' by them, those images can be separately particularised in an additional count.

Using multiple incident counts removes the need to provide examples of individual images, separately particularised in stand-alone counts or to draft separate counts for each of the devices found.

The multiple incident provisions as provided for in Part 10 of the Criminal Procedure Rules should be followed and it is important to remember the need to specify in a multiple incident count the minimum number of photographs which the prosecution needs to prove (e.g. “no less than 50” rather than “more than 2”): R v A [2015] 2 Cr. App. R. (S.) 12.

Jurisdiction

The common law provides that there is jurisdiction to try offending which has a substantial connection with England and Wales. Where a substantial degree of the conduct takes place within England and Wales, the courts of England and Wales have jurisdiction unless it can be argued, on a reasonable view, that the conduct ought to be dealt with by the courts of another country; R v Smith (Wallace Duncan) (No.4) [2004] 3 WLR 229, per Lord Chief Justice Woolf.

“Substantial connection” is likely to mean either that the suspect, or the child, is in England and Wales. See R v Waddon [2000] All ER (D) 502 and R v Perrin [2002] EWCA Crim 747 which confirms there is jurisdiction to try the downloading in England and Wales of images hosted outside the jurisdiction. The common law is supplemented by the Sexual Offences (Conspiracy and Incitement) Act 1996 and section 72 of the Sexual Offences Act 2003. Where more than one jurisdiction could prosecute (concurrent jurisdiction), see the prosecution guidance on Jurisdiction.

Public Interest and Out of Court Disposals

For adults, a prosecution will usually be required in the public interest for offences concerning IIOC. An out of court disposal is unlikely to be a suitable method of disposal in cases where indecent images of children are found on the suspect's device given the seriousness of the allegation. The lowest starting point for IIOC offences outlined in the sentencing guidelines is a high-level community order. Any decision by the police to utilise an out of court disposal will ordinarily be made in conjunction with the CPS, although the police do retain a right to do so without consultation. Any decision to utilise an out of court disposal must be made in accordance with the Code for Crown Prosecutors and relevant guidance on diversion from prosecution.

Where child offenders are concerned, prosecutors should carefully consider whether a prosecution is required in the public interest and/or whether an out of court disposal is appropriate, applying the CPS guidance on Children as Suspect and Defendants.

Sexting

‘Sexting’ commonly refers to the sharing of sexual images, videos or other content between two or more persons. In relation to children, ‘sexting’ can cover a broad range of activities, from the consensual sharing of an image between two children of a similar age (who may or may not be in a relationship) to instances of children being exploited, groomed, and bullied into sharing images, which in turn may be shared with peers or adults without the child’s consent. Children may also create, and/or share AI generated indecent photographs or pseudoimages of themselves and/or other children. This will also need to be considered as part of the public interest test.

There is a rule of law that where a statute is designed for the protection of a certain class of persons it should be construed as excluding by implication any member of that class who is a victim of that offence from being prosecuted as a defendant. How far the rule in Tyrrell (1984) 1 QB 170 extends is unclear but it may be that as a matter of law of a child cannot be prosecuted for making an indecent image of themselves. This rule cannot apply to others who might make, possess, distribute etc. the image, only the child who made it themselves.

Even if there were a realistic prospect of conviction in the case of a child making an indecent image of themselves, it is highly unlikely to be in the public interest to prosecute that child.

A prosecution for the consensual taking and sharing of images by children with children as part of sexual experimentation is unlikely to require prosecution. By contrast, it is highly likely to be in the public interest to prosecute the non-consensual taking and sharing of images, or images created for adults, or images created as a result of exploitation, grooming and bullying. In such cases, a prosecution will usually take place unless there are public interest factors against prosecution which outweigh those in favour. For more information, see the Code for Crown Prosecutors as well as prosecution guidance on Children as Suspects and Defendants and Mental Health: Suspects and Defendants.

Selection of charges

The use of section 160 of the CJA 1988 is becoming increasingly rare. It is best reserved to cases where the evidence is unambiguous in showing genuine possession, for example, where a suspect has the images in printed form or has saved them into a clearly labelled file within the hard drive of the device. R v Porter [2006] 1 WLR 2633 supports the view that, in normal circumstances, deleting images held on a computer is sufficient to divest oneself of possession of them. A person who views an image on a device, which is then automatically cached onto its memory, would not be in possession of that image unless it can be proved they knew of the cache. To possess an image it must be accessible. The charge of 'making' has the advantage of being widely interpreted to cover such activities as opening attachments to emails and downloading or simply viewing images on the internet. By contrast, the same conduct often cannot lead to a possession charge and prosecutors should also note the lower maximum sentence available for section 160 of the CJA 1988.

Sentencing and Ancillary Orders

There is a published guideline for this offending: Possession of indecent photograph of child/ Indecent photographs of children – Sentencing (sentencingcouncil.org.uk).

Anonymity and Reporting Restrictions

The Sexual Offences (Amendment) Act 1992 does not apply to offences under section 1 PCA 1978, section 160 CJA 1988 or section 62 CJA 2009. If necessary, an order under section 45 or 45A of the Youth Justice and Criminal Evidence Act 1999 should be sought.

Notification and Disqualification

Part 2 of the SOA 2003 requires those convicted or cautioned for relevant sex offences, including section 1 PCA 1978 and section 160 CJA 1988 offences, to notify the police of certain personal details for what has become commonly known as the Sex Offenders' Register.

Notification requirements are automatic upon conviction. The role of the court is to notify the defendant how long they will be subject to the requirements. This is best done on sentence as the period of disqualification will often be determined by the sentence they receive.

In relation to a prohibited image of a child where offenders are aged 18 or over and received a sentence of two years’ imprisonment or more, they can be made subject to the same notification requirements.

Offences contrary to either s.1 PCA 1978, s.160 CJA 1988 or s. 62 CJA 2009 will result in the defendant being automatically barred from working with children. Whilst the Court plays no part in determining whether a defendant is, or may be disqualified, it is good practice for a Judge to inform a defendant that they will be barred, subject to their right to make representations.

Sexual Harm Prevention Orders

Please see the Sexual Harm Prevention Orders guidance in the Sentencing - Ancillary Orders prosecution guidance.

Deprivation and Forfeiture

Following conviction, prosecutors should always request forfeiture of indecent or prohibited images of children using sections 152-155 of the Sentencing Act 2020.

Prosecutors are encouraged to take a robust approach to such applications. In the first instance it may be appropriate to seek a deprivation order for the complete hard drives of any device although the defence may argue this will have a particular disproportionate financial or other effect. Such disputes should be settled on a case-by-case basis, avoiding the adoption of compromise positions such as police deletion of specific images allowing the return of the remainder of the hard drive due to the time and resource implications for the police.

In addition, section 5 PCA 1978 and Schedule 1 to the same Act provides a mechanism to allow police to forfeit indecent photographs of children following any lawful seizure. Following provision of notice to all interested parties, the property is treated as forfeited if it remains 'unclaimed'. A civil hearing litigated in the magistrate's court may determine the issue if the defendant contests the notice of intended forfeiture. This approach may be used to forfeit images in the absence of conviction at court or application at the point of sentence.

This enables the police to forfeit articles they have reasonable grounds to believe contain indecent images of children, or are likely to, and allows forfeiture of articles that are impossible to separate from legal data on a computer hard drive. For example, a vast collection of discs/videos without having to consider each item separately.