What does ‘making’ indecent images mean?

The Crown Prosecution Service often look to charge suspects with ‘making’ indecent images under s.1 (1) (a) of the Protection of Children Act 1978. Previously suspects were more likely to be charged with possession of indecent images under s.160 Criminal Justice Act 1988.

‘Making’ indecent images is often misunderstood and doesn’t mean an individual ‘made’ or ‘took’ the original image. It involves the viewing of an image which results in the image being downloaded to the device on which it is viewed.

What is the law on making indecent images?

Section 1(1) (a) of the Protection of Children Act 1978 includes “to take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child”.

‘Making’ indecent images is defined as follows “to cause to exist, to produce by action, to bring about” indecent images.

The court’s interpretation of ‘making’ indecent images is broad and the following can amount to making indecent images;

• opening an email attachment
• downloading an indecent image
• storing an image
• accessing a website where an indecent image “pops up”

Does making indecent images mean producing the image?

No. The court’s interpretation of ‘making’ indecent images is broad and can confuse those outside the legal profession.

‘Making’ means creating it on your device. People can get it confused with “production,” which is actually taking the photo itself. Simply opening an email attachment, downloading an indecent image or storing it on a device can constitute an offence.

When an image is deleted, the suspect can no longer be said to be in possession and so making is charged as the interpretation is wider.

The prosecution in such cases must satisfy the court that the suspect deliberately and intentionally knew they were ‘making’ such an image.

It is not necessary to have intentionally saved an indecent image to a device to be found guilty – all that is required is proof that the illegal image was accessed.

Opening an attachment or downloading an image

An individual may make an image when they open an attachment from an email which includes an indecent image/pseudo image of a child. An individual may also be found guilty of ‘making’ an image by simply downloading such an image. The prosecution must satisfy the court that the suspect deliberately and intentionally and with knowledge knew he was ‘making’ such an image. The prosecution do not need to establish that the individual intended to save the image on his computer.

Pop ups

Accessing a pornographic website where an indecent image ‘pops up’ can constitute ‘making’ indecent images. The court have held that it was the suspect who accessed the pornographic website in which an indecent image popped up who ‘made’ the image, rather than the person responsible for creating the website.

Those under investigation may say that a ‘pop up’ has appeared whilst watching legal pornography. For the prosecution to secure a conviction of a suspect, the court must be satisfied that whilst accessing such pornography the suspect had knowledge that such pop ups would likely contain indecent images.

Knowledge

To be convicted of ‘making’ an indecent image an individual must have the knowledge that the image is/is likely to be an indecent image or pseudo image of a child. Therefore, in order for a suspect to be convicted, the prosecution need to satisfy the court that the suspect had the knowledge that opening an email 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.

A suspect who downloads, opens an attachment, or where an image/pseudo image pops-up using a device including a mobile phone, laptop or computer could be found guilty of ‘making’ indecent image. If the CPS can satisfy the court that this a suspect did this intentionally and with the knowledge that the image is or is likely to be an indecent image or pseudo image of a child, then the suspect could be found guilty under s.1. (1)(a) Protection of Children Act 1978.

Defences

A defence would be available if an image was unsolicited and immediately deleted as soon as it was appreciated it was indecent.

A lack of knowledge is the main defence available. A suspect accused of ‘making’ an indecent image must have the knowledge that the image is/is likely to be an indecent image or pseudo image of a child. Therefore, if the prosecution cannot satisfy the court that the suspect did not have such knowledge then the suspect cannot be found guilty.

Another issue is that the prosecution often instruct police officers to examine the devices (rather than experts). These officers often have minimal training and sometimes struggle with the accuracy of the categorisation of the images. In order to mitigate this, the defence can instruct a suitably qualified expert who can verify/challenge the accuracy of the categorisation of the images.

Is ‘making’ indecent images treated more seriously for sentence than possession of indecent mages?

The court treat possession and making as interchangeable when it comes to sentence.

The maximum sentence for ‘making’ an indecent image of a child is ten years imprisonment.

Olliers Solicitors – Specialist defence solicitors for indecent images offences

Olliers’ team of specialist lawyers can assist you if you are under investigation for indecent images offences.

We have many years of experience of dealing with allegations of indecent images and understand that for many individuals it may be their first involvement with the criminal justice system. We understand how daunting the situation may be for you. We promise not to judge and seek to work together to achieve the best outcome for you. We aim to explain the process and procedures to you in clear and unambiguous language whilst at the same understanding the anxiety you face.

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 if you are under investigation for indecent images offences.