Possession of Indecent Images or Pseudo-Photograph | The Law Explained
An indecent image is one of a child or children, aged under eighteen, which is sexual in nature. This can include nudity, partially clothed child(ren) or showing a child(ren) posing in a sexual manner. Such images may also include adults and animals.
There is no legal definition of an indecent image and it is for a jury to decide using an objective test. In English law ‘reasonableness’ is a common term. Objective tests are used to evaluate a person’s actions or behaviour based on reasonableness rather than relying on subjective views.
Offences concerning indecent images are divided into ‘possession’ and ‘making.’
Whilst ‘possession of indecent images’ is the less severe of the offences, it is the concern of many individuals that they may unintentionally come into possession of indecent images through electronic devices and social media platforms like a group chat on WhatsApp.
Sukhdip Randhawa of KANGS outlines the law concerning possession of indecent images.
Possession of indecent images Under UK Law
The Criminal Justice Act 1988 provides:
Section 160 Possession of indecent photograph of child
Subject to section 160A, (which provides for marriage and other relationships), it is an offence for a person to have possession of any indecent photograph, (or pseudo photograph) of a child.
Where a person is charged with an offence, it is a defence to prove:
- that there existed a legitimate reason for having such possession,
- that such person had not seen the photograph(s) or pseudo photograph(s) and did not know or suspect it /them to be indecent or
- that the photograph(s) or pseudo photograph(s) was/were sent without any prior request and was/were not kept for an unreasonable time.
Section 65 of the Criminal Justice Act 2008 contains statutory defences materially the same as those shown above.
The Meaning of Possession
Statute does not provide a definition for ‘possession.’
In such absence, the meaning of possession has been considered by courts on a number of occasions with the result that the offence is not to be regarded as one of strict liability.
Accordingly, it is an essential element of the offence that the defendant knew of the existence of the images.
Points of note:
In the case of Porter (2006), the defendant had deleted a large number of indecent images from his computer but they remained on the hard drive and were still accessible. The Court of Appeal held that to be in possession, the person must have had custody or control over the items and that this required the person to be able to retrieve the images, being the situation in this case.
Ignorance or forgetfulness that the indecent images are on a device will not provide a defence.
In the case of R v Cyprian-Okoro (No.3) [2018], the Court of Appeal stated:
‘An accused cannot be convicted in relation to material of which he was genuinely totally unaware. Nor could a defendant be said to be in possession of a digital file if it was in practical terms impossible for him to access that file.’
Categories of Indecent Images
UK law recognises three categories of indecent images, set out in the Criminal Justice Act 1988 and the Protection of Children Act 1978. These categories are labelled A, B, and C, reflecting the different levels of seriousness of the material.
Further information about category A, B, and C images, and what they represent, is available in a separate article titled 'How Indecent Images are Categorised and Defined.'
How Can We Assist?
KANGS specialises in providing robust and compassionate legal defence for individuals facing charges related to sexual offences, including possession of indecent images. Our experienced team has the enviable nationwide reputation for first class professional service and is highly praised and awarded by the leading legal directories The Legal 500 and Chambers UK.
If we can be of assistance, our team would be delighted to hear from you.
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through video conferencing or telephone.
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