‘Making’ Indecent Images: Understanding the Law
Ex-BBC presenter Huw Edwards has been sentenced to 6 months custody, suspended for 2 years after pleading guilty to three charges of ‘making’ indecent images of children, namely 7 category A images, 12 category B images and 22 category C images. He was automatically subject to notification requirements, commonly known as the sex offenders register for 7 years and ordered to complete a Sex Offender Treatment programme requirement lasting 40 days, 25 Rehabilitation Activity Requirement sessions and to pay £3000 in prosecution costs and a statutory charge of £128.
This comes at a time when more than 1,700 prisoners have been let out early in England and Wales as part of the Government’s scheme to address overcrowding in prisons. The sentencing guidelines for a category A indecent image, the most serious of the categories, has a starting point of 1 year’s custody, with a range of 26 weeks’ custody to 3 years’ custody.
When taking into account Mr Edwards mitigating factors including his early guilty plea, his previous good character, mental health issues and his low risk of offending the Judge was of the view that a suspended prison sentence with requirements “will rehabilitate [him] and thus strike the balance between public protection and rehabilitation.”
Calls have since been made to the government’s chief legal advisor urging for the sentence to be reviewed on the basis that it was too lenient. However, the Unduly Lenient Scheme, which allows certain sentences to be reviewed by the Attorney General’s Office, does not apply in Mr Edwards’s case due to him being sentenced in the Magistrates Court. But what does making indecent images mean, and could you be sentenced to something similar?
- The main offences relating to indecent images of children
- How the Crown Prosecution Service determines charges
- What is an indecent image?
- What does ‘making’ indecent images involve?
- Can you be charged if you delete the images?
- Categories of indecent images and their severity
- Court proceedings, sentencing, and consequences for ‘making’ indecent images
- How we can help
If you are charged with accusations of making indecent images, we have a team of experienced indecent images lawyers who can help you achieve the best possible outcome.
The main offences relating to indecent images of children
The law in relation to indecent images of children is complex and has 4 main offences, which include:
- Possession of indecent images of children
- Making of indecent images of children
- Distribution of indecent images of children
- Production of indecent images of children
How the Crown Prosecution Service determines charges
The Crown Prosecution Service determine the appropriate charge depending on the
individual case facts including; where the image has been located on the device, whether the person has parted possession of the image or exposed it to another, and how the image was originally created.
Focusing on the offence of ‘making’ indecent images of children, Section 1(1)(a) of the Protection of Children Act 1978 defines the offence as:
- to make, take or permit to be taken or made
- any indecent photograph or pseudo-photograph
- of a child
What is an indecent image?
An indecent image is any sexual image of a child (anyone under the age of 18). To be classed as an indecent image in UK law, it must feature nude or partially clothed children, or any child posing sexually in self-generated images.
What does ‘making’ indecent images involve?
However, ‘making’ may not be what most initially think. The term ‘making’ has a wide definition and does not cover the ordinary meaning of the word.
To ‘make’ has been widely interpreted by the courts and can include the following:
- opening an attachment to an email containing an image
- downloading an image from a website onto a computer screen
- storing an image in a directory on a computer
- accessing a pornographic website in which indecent images appeared by way of an automatic “pop-up” mechanism
- receiving an image via social media, even if unsolicited and even if part of a group
- live-streaming images of children
Can you be charged if you delete the images?
What most are also unaware of is that even in cases where the indecent image has been downloaded and then deleted from the device, a person may still be charged with the offence of ‘making indecent images of children’ as the image may be stored in the device cache or cloud storage.
This is different to the separate offence of ‘production of indecent images of children’ which involves the actual taking of an indecent photograph of a child with a camera or the production of an indecent video of a child.
Categories of indecent images and their severity
Should indecent images of children be found on your device, they are categorised as follows:
- Category A – involving penetrative sexual activity with a child
- Category B – involving non-penetrative sexual activity with a child
- Category C – involving other indecent images, including sexual posing of a child.
Court proceedings, sentencing, and consequences for ‘making’ indecent images
The offence is triable either way, which means that it can be dealt with either in the Magistrates Court or Crown Court, depending on the categories found and the level of seriousness.
There are not any separate sentencing guidelines for the offence of ‘making indecent images of children’, however making an image should be treated as possession for the purpose of sentencing. Sentences vary depending on the category of images involved, and more detailed sentencing guidelines can be found on the Sentencing Council website.
Should a person plead guilty to making indecent images of children, they are automatically subject to Notification Requirements, with the possibility of a Sexual Harm Prevention Order also being applied for by the Crown Prosecution Service. For more information about Notification Requirements, visit the government’s guidance.
How we can help
Cases regarding the making of indecent images of children are sensitive and distressing. Our indecent images lawyers aim to alleviate your concerns by managing the process from the outset in a non-judgmental way.
Our primary aim is to achieve the best result for you as an individual. Contact our team today.
