Written 26th September 2024 by Ruth Peters

The rise of digital technology and the internet has brought about significant legal challenges, especially in cases involving indecent images. The possession, creation, distribution, or publication of indecent images of children is a criminal offence under the Protection of Children Act 1978, the Criminal Justice Act 1988, and the Sexual Offences Act 2003.

Sentencing in these cases is complex, as it must balance protecting vulnerable individuals, punishing offenders, and deterring future offending through rehabilitation. This blog will explore how sentencing works in indecent image cases and the factors influencing sentences.

Categories of indecent images

Indecent images of children are classified into three categories:

Category A: Images involving penetrative sexual activity, sadism, or extreme sexual acts involving children.
Category B: Images that depict non-penetrative sexual activity involving children.
Category C: Images that are indecent but do not fall into the above categories, including those that show nudity without overt sexual activity.

The seriousness of the offence is primarily determined by the category of the images involved and the level of the offender’s engagement, such as possession, production, or distribution.

Sentencing Guidelines for Indecent Image Cases

Sentencing for indecent image offences in the UK is guided by the Sentencing Council, which provides detailed guidelines for judges to follow. These guidelines aim to ensure consistency in sentencing while allowing flexibility based on individual circumstances.

The Sentencing Guidelines state as follows:

Possession of Indecent Images: The maximum sentence for possession of indecent images under section 160 of the Criminal Justice Act 1960 is five years in prison. For Category A images the starting point is twelve months custody with a range of 26 weeks to three years custody. For Category B images, the starting point is 26 weeks custody with sentences generally ranging from a community order to 18 months custody. For Category C images the starting point is a high-level community order with sentences ranging from a medium level community order to 26 weeks custody.

Making indecent images: The maximum sentence for making indecent images is ten years under section 1 of the Protection of Children Act 1978.

However, the guidelines state making an image by simple downloading should be treated as possession for the purposes of sentencing.

Distribution includes possession with a view to distributing or sharing images. Production includes the taking or making of any image at source, for instance the original image.

Distribution of Indecent Images: Distributing Category A images has a starting point of three years custody with a range of two – five years custody. Category B and C distribution offences also lead to starting points of a custodial sentence, though the range for Category B is 26 weeks to two years custody with Category C leading to a range of a high-level community order to 26 weeks custody.

Production of Indecent Images: This is treated as the most serious offence, particularly if images are produced with intent to be distributed with a starting point of six years custody for production of Category A images.

Aggravating and mitigating features

The sentencing ranges for indecent image offences can vary significantly based on the factors mentioned above.

Aggravating features

Aggravating factors that influence sentencing include:

Failure to comply with current court orders
Offence committed whilst on licence
Age and/or vulnerability of the child depicted
Discernible pain or distress suffered by child depicted
Period over which images were possessed, distributed or produced
High volume of images possessed, distributed or produced
Placing images where there is the potential for a high volume of viewers
Collection includes moving images
Attempts to dispose of or conceal evidence
Abuse of trust
Child depicted known to the offender
Active involvement in a network or process that facilitates or commissions the creation or sharing of indecent images of children
Commercial exploitation and/or motivation
Deliberate or systematic searching for images portraying young children, category A images or the portrayal of familial sexual abuse
Large number of different victims
Child depicted intoxicated or drugged

Mitigating Factors

Mitigating factors, such as an early guilty plea, mental health issues, or evidence of efforts toward rehabilitation, can reduce sentences.

Olliers can assist in identifying mitigating features and collating evidence to support the same including:

Previous good character and/or exemplary conduct
Age and/or lack of maturity
Remorse
Mental disorder or learning disability
Evidence of steps taken to address offending or seek help

If a client recognises that they may need help we can point them in the direction of organisations that can help at a very early stage. If a client is charged and is ultimately advised to plead guilty, evidence of any early help sought can be extremely powerful mitigation and illustrate a genuine desire to change behaviour. It can therefore be useful, in appropriate cases, to seek help during the pre-charge investigation stage itself.

Rehabilitation and Preventive Measures

Sentencing is not only about punishment but also rehabilitation. Sentencing courts may impose requirements such as participation in sex offender treatment programs, mental health interventions, and restrict access to electronic devices through a SHPO.

The aim is to reduce the likelihood of reoffending and to address underlying issues that contribute to offending behaviour.

Will I go to prison for an indecent images offence?

It is possible for a person found guilty of indecent images offences to go to prison. This does not necessarily mean that if you are found guilty, you will definitely serve time in custody. As referred to above there is in fact a range of options available to the court when sentencing someone who has been found guilty.

The court will take into consideration both aggravating and mitigating factors which will differ depending on each individual case. If the court decide to sentence to a custodial sentence of two years or less than the court can choose to ‘suspend’ that sentence meaning that an individual will only actually serve time in custody if they commit another offence within the operational period of fail to comply with the additional requirements of the sentence, for example, failing to attend a directed by the Probation Service.

The Sentencing Guidelines state that where there is a sufficient prospect of rehabilitation, a community order with a sex offender treatment programme requirement can be a proper alternative to a short or moderate length custodial sentence.

Notification Requirements

Notification requirements are automatically triggered upon conviction for indecent images offences. During a sentencing hearing, the court’s role is to notify the defendant of how long they will be subject to these requirements.

Part 2 of the Sexual Offences Act 2003 requires those convicted of (or cautioned for) sexual offences, including indecent images offences, to notify the police of certain personal information.

The notification period i.e. the length of the requirements, will be determined with reference to the sentence an offender has received:

Term of imprisonment of 30 months or more – Indefinite period
Term of imprisonment of more than 6 months but less than 30 months – 10 years
A term of imprisonment of 6 months or less – 7 years
Caution – 2 years
Conditional discharge – period of conditional discharge

Sexual Harm Prevention Orders (SHPO)

Part 2 of the Sexual Offences Act 2003 allows a court to make a SHPO in relation to a defendant who has been convicted of indecent images offences. The court must be satisfied that it is necessary to make a SHPO to protect the public or any particular members of the public in the UK from sexual harm, or to protect children or vulnerable adults generally, or any particular children or vulnerable adults outside the UK from sexual harm.

A SHPO prohibits a defendant from doing anything as described in the order. Typical prohibitions relate to the use of any computer or device capable of accessing the internet. An offender might be prohibited from using such a device unless they have notified the police of its acquisition, make it immediately available on request for inspection by a police officer and/or do not delete internet history from the device.

A SHPO will last for a minimum of five years and can be for an indefinite period.

It is very important for an offender to comply with the prohibitions set out in a SHPO. Breach of these prohibitions could result in an offender committing a criminal offence.

Conclusion

Sentencing in indecent image cases in the UK reflects the seriousness of these offences and the need to protect children from exploitation. The sentencing guidelines provide a framework that takes into account the nature of the offence, the offender’s role, and their potential for rehabilitation. As technology continues to evolve, so too must the approaches to sentencing and prevention, ensuring that justice serves both the victims and society at large.

If you have been charged with indecent images offences or received a postal requisition, we advise that you seek advice and representation from a specialist solicitor on an immediate basis. We can obtain the initial evidence from the prosecution and advise you immediately in relation to the strength of the evidence and sentencing powers available to the court. At Olliers we cover all courts across England and Wales.

Contact our indecent image offences lawyers

Please contact our new enquiry team on 020 3883 6790 (London) or 01618341515 (Manchester), by email to info@olliers.com or complete the form below if you would like to arrange a confidential discussion as to how Olliers can assist you in relation to indecent images offences.