What is a Making Indecent Images Offence?

While the potential sentences for indecent image offences are serious across the board, the most severe punishments relate to making indecent images.

That being said, there is often some confusion over what actually constitutes ‘making’ an indecent image, as opposed to producing, possessing or distributing an indecent image.

Here, we discuss what making an indecent image actually means, the potential sentences for making indecent image offences, and what steps the police take to investigate these types of allegations.

What is an indecent image?

There are clear and very strict guidelines in relation to indecent images. It is a criminal offence to take (or permit to be taken), make, possess, show, distribute, or publish an image of a child posed or pictured indecently, typically in a sexual way.

There is no statutory definition of 'indecent’. However, it is usually held that, in a case of a trial before jury, the jury decides what is considered indecent by reference to whether something offends against recognised standards of propriety. This same test also applies if the matter is dealt with at the magistrates court.

Meanwhile, ‘images’ involve actual photographs or video footage, drawings, tracings, images created digitally, or pseudo images.

Indecent images also include images of adults who are involved in an indecent act where a child is present but are not the ones being portrayed indecently.

What is classed as making an indecent image?

It is important to distinguish that making an indecent image does not necessarily refer to the physical act of taking a photograph or video. There are various other actions which could result in somebody being accused of making indecent images, such as:

• Downloading an indecent image to a device – This can occur when you visit websites with the images, You do not have to save the image.
• Accessing a website where indecent images appear as ‘pop-ups’ – This would occur if you went on a website where the images exist.

If a ‘pop up’ has appeared whilst watching legal pornography. The court must be satisfied that whilst accessing such pornography you had knowledge that such pop ups are likely to contain indecent images.

• Opening an email attachment containing an indecent image – This will download the content

Knowledge is critical

The prosecution must show you had the knowledge that images are likely to be an indecent image or pseudo image of a child. 

For a conviction the prosecution must always satisfy the court that knowledge that opening an attachment, downloading, or accessing a website with pop-ups containing images would be likely to be an indecent image or pseudo image of a child. 

If you download, open an attachment, or where images pop-up using a device including mobile phone, laptop or computers you are at risk of being found guilty of ‘making’ indecent images.

The prosecution must establish that a suspect did this intentionally with knowledge that the image is or is likely to be an indecent image or pseudo image of a child.

Defences to making indecent images

There are not many defence options, but Lacking knowledge is the main defence available to you. If accused of ‘making’ an indecent image the prosecution must prove knowledge that the image is/is likely to be an indecent image or pseudo image of a child. The prosecution must satisfy the court that you did have such knowledge to be found guilty.

The Lucy Faithfull Foundation

If you are a victim of child sexual abuse or at risk of offending, please contact the Lucy Faithfull Foundation for advice.

What are the sentencing guidelines for a making indecent images offence?

According to Sentencing Council, making an indecent image ‘by simple downloading’ should be treated as possession for the purposes of sentencing. However, if it can be demonstrated that an offence amounts to more than simply downloading and instead involves the direct creation of an indecent image, ‘production’ will be used instead, which carries more severe penalties.

In addition to facing criminal charges for making an indecent image, anyone who is convicted is also likely to have to register under the Sexual Offender’s Register, as well as be banned from working with children.

An offender may also be handed a Sexual Harm Prevention Order (SHPO). This is a court order which can be requested by the police or court where there is a specific concern about an individual. Such an order would prevent or limit certain actions, such as accessing the internet without computer monitoring software being installed.

What are the 3 categories of indecent images?

Sentencing guidelines outline that there are three levels of seriousness for indecent images. For the purposes of sentencing, indecent images are separated into:

• Category A indecent images
• Category B indecent images
• Category C indecent images

Category A indecent images are the most serious category. There are images which depict penetrative activity and sexual activity with an animal or sadism. Category A indecent image offences, no matter what they specifically relate to, almost always result in prison sentences.

Category B indecent images involve non-penetrative sexual activity, which may include actions such as masturbation, typically without the presence of an adult. These images are considered to be ‘mid-range’ in terms of sensitivity.

Category C indecent images depict erotic or sexual posing and are considered to be the least serious in the eyes of the law.

What is the minimum sentence for making indecent images?

If the act of making indecent images falls under the bracket of possession for the purposes of sentencing, the minimum sentence you could receive for a making indecent images offence would be a medium level community order. This relates to Category C indecent images.

However, if making an indecent image is instead upgraded to producing, the minimum sentence would be 12 months imprisonment.

What is the maximum sentence for making indecent images?

Again, if making an indecent image is treated as possession for the purposes of sentencing, the maximum sentence you could receive would be 3 years’ imprisonment. This relates to Category A indecent images.

However, if making an indecent image is upgraded to production, the maximum sentence would be nine years’ imprisonment.

How do the police find out about indecent images?

The police and other relevant authorities follow a range of procedures to uncover and investigate indecent images.

The initial stages of an indecent images investigation will involve Child Protection Services and other relevant law enforcement agencies running various programs which capture terms often used by people viewing indecent images.

If these programs detect that someone has accessed an indecent image, their IP address is supplied to the law enforcement agency that has jurisdiction over that area and an application is made under RIPA 2000 (Regulation of Investigatory Powers Act) to request a user’s registered details.

Once personal information is received from an internet provider, various intelligence checks will be carried out, such as voter’s register, PNC, and criminal intelligence database checks. These are carried out to identify risks and serve as data which can be used when providing information to the Magistrates’ Court to obtain a warrant.

Should I speak to a solicitor when accused of making an indecent image?

If you are accused of making an indecent image, you should always speak to a specialist criminal defence solicitor, no matter the circumstances. As we have discussed in this post, the sentencing guidelines for making an indecent image can be extremely harsh, even in scenarios where you may have simply downloaded an image.

This means that the support and advice from an expert solicitor is essential, especially when you have been arrested and are interviewed by the police for an indecent image offence. This way, you will understand your legal rights and what actions may serve to harm your defence.

Many people make the incorrect assumption that speaking to a criminal solicitor will signify guilty, but this is not accurate. No matter what you are being charged with or what the exact offence you are being charged with is, it is essential that you enlist expert representation at the earliest opportunity.

At JD Spicer Zeb, our indent images solicitors have substantial experience and expertise with making indecent images offences and will be available to advise you on your situation. We will take every possible step to ensure that you are able to achieve the best possible outcome.

Not only will we guide you through the general process, but we will also make sure that any alleged indecent images are correctly and accurately categorised, medical reports such as psychological evaluations are collated, and the prosecution is made aware of the potential impact on both you and your family.

Our solicitors work with leading digital forensics provider Cyfor who can offer efficient, face to face expert advice on the initial forensic aspect of the police investigation. This can cost from around £500 plus VAT. The expert is able to advise in depth on various lines of forensics the police will deploy and the likely outcome of interrogation of various platforms and devices.

With our support, you will stand the best possible chance of reaching a positive outcome, which may include seeing the police drop all charges.

Where a conviction is unavoidable, we will also strive to make sure that any sentence is proportionate, including the application of an SHPO.

Contact our indecent images defence lawyers today

For a free initial consultation, urgent specialist advice, immediate representation, or to speak to us confidentially about allegations of making indecent images of children or extreme pornography, or any other offence, such as producing, distributing or possessing an indecent image, please do not hesitate to get in touch.

You can contact our dedicated indecent images defence lawyers in London, Birmingham, and Manchester by telephone on:

• Brent & Camden London Office: 0207 624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333
• City of London: 0207 624 7771 (our senior Solicitors and Partners can meet by appointment in the City)

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you as soon as possible.

24/7 legal representation for indecent images offence allegations

Please get in touch for a free initial consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice on dealing with allegations relating to indecent images of children or extreme pornography.

We are available to represent clients all over England and Wales at any time, so please contact our Emergency Number 07836 577 556.