In the UK, it is a criminal offence to take or permit the taking of a sexual image of anyone under 18 years old, who is legally considered a child. This could be a photograph, selfie, video, electronic data, or pseudo-images (e.g. digitally edited or generated images).

While there is no statutory definition of what is classed as ‘indecent’, and the decision is often left to the jury, it is generally understood that an indecent image features a child in a sexual manner, whether it involves suggestive nudity or engaging in sexual activity.

Such indecent images are often sourced from dark corners of the internet and stored by offenders on smart devices or hard drives, or hidden in computer directories. It is not only a crime to take or produce these images, but also to access, possess, or distribute them.

However, the definitions of these offences can blur, as offenders may commit one or more simultaneously. The law uses specific terms to refer to each, leading to confusion over what is meant by terms like ‘making’ an indecent image.

What does it mean to ‘make’ an indecent image?

The Protection of Children Act (1978) and Criminal Justice Act (1988) specify criminal offences prohibiting creating, owning, or circulating indecent images.

‘Production’ is the most serious offence, involving the creation of an original indecent image of a child. ‘Distribution’ is also more serious, as it involves sharing indecent images with others. ‘Possession’ means storing indecent images – whether physical or digital copies – and is still an offence even if the owner destroys or deletes them.

‘Making’ was added in 1995 and is not always as easy to define. The term ‘make’ seems to suggest creating an original image, but in fact, it can be interpreted widely – also referring to the act of reproducing an indecent image by accessing it, in ways such as:

• Opening an attachment to an electronic message that contains an indecent image
• Downloading an indecent image to a device or saving it in cloud storage
• Viewing a ‘pop-up’ containing an indecent image on a website

To convict someone of ‘making’ an indecent image in such a way, the prosecution must satisfy the court that the accused person deliberately viewed or downloaded the image with full knowledge of its indecent nature. They do not need to prove that the suspect had the intention of further storing or retrieving the image.

If the defendant genuinely viewed or downloaded the image accidentally, without intention or knowledge, their legal team can present a lack of knowledge or lack of solicitation as a defence.

What is the sentence for accessing indecent images?

If a defendant is found guilty of an indecent images offence, the sentence the court imposes will depend on the circumstances of the offence and the nature and severity of the images.

Indecent images are graded by the Child Abuse Image Database (CAID), which defines three categories of indecent images with different sentences attached according to their severity.

Category A is the most severe, depicting obscene images of penetrative sexual activity or sadism involving a child. As such, a Category A conviction would result in a prison sentence of 1 to 6 years, depending on the nature of the images and whether the conviction is for production, possession, distribution, or a combination.

Category B is the second most serious type, which depicts explicit but non-penetrative sexual activity involving a child. A custodial sentence for a Category B conviction could start at 6 months or stretch up to 4 years, again depending on the severity of the images and whether the convict produced, stored or circulated them.

Category C is the least serious but still legally sensitive, involving sexually suggestive images of children. The most severe sentence for a Category C conviction could be 1 to 3 years in prison, while the least severe could result in a high-level community order.

Courts can also impose a Sexual Harm Prevention Order (SHPO) to prohibit internet access or contact with children and require offenders to sign the Sex Offenders’ Register.

Support for indecent image allegations

If you have been accused of committing an indecent images offence, or a family member has been accused, you should speak to a defence solicitor immediately.

This is a very sensitive and complex area of law, with potentially life-threatening consequences for charges and convictions, so you should get a specialist on your side as soon as possible.

An indecent images defence solicitor can expertly guide you through the process of legally defending yourself against indecent image allegations and charges.

They can ensure that all evidence is presented and appropriate defences established to avoid conviction or reduce sentences to a proportionate level.