Ranked criminal defence solicitor representing clients falsely accused of making or distributing indecent images

Richard Egan is a top-ranked criminal solicitor who defends those falsely accused of making, distributing or possessing indecent images. Such allegations can have a devastating impact on an individual’s personal as well as professional life and Richard’s involvement from the earliest stage helps clients successfully manage the crisis.

New technologies and innovations provide a myriad of opportunities for a person to inadvertently expose him/herself to potential liability, and in order to properly defend yourself you need to have a complete understanding of the law, the techniques and tools used by the police and the potential defences available to you. This area of law is complex and if you are facing such an allegation you are best advised to to seek immediate advice and assistance from a professional, like Richard, with specific expertise and over twenty-five years experience in this field.

So, where to start? Perhaps it is best by setting out a quick recital of the main offences:

Section 1(1) of the Protection of Children Act 1978 makes it an offence for a person: (a) to take, or permit to be taken or to make, an indecent photograph or pseudo-photograph of a child; or (b) to distribute or show such indecent photographs or pseudo-photographs; or (c) to have in his / her possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself / herself or others; or (d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs or intends to do so.

Section 62 of the Coroners and Justice Act 2009 makes it an offence for a person to be in possession of an prohibited image of a child.

Whether an image is indecent is a question of fact, according to ‘‘recognised standards of propriety’’ or ‘‘the standard of decency of ordinary, right-thinking members of the public’’.

What does “making an indecent image” mean?

Many people think that in order to be guilty of making an indecent image a person must have produced it from source (for example by taking an indecent photograph of a child) but the reality is that a person can “make” an indecent image in a variety of ways, including unknowingly downloading it onto a computer screen, opening an image attached to an e-mail, downloading an image from the internet onto a disk, printing off an image downloaded from the internet and storing such an image in a directory on the hard drive of a computer.

What does permitting an indecent photograph or pseudo-photograph of a child to be taken mean?

The meaning of the word ‘‘permit’’ depends on the context in which it appears: it can mean ‘‘allow’’ or ‘‘authorise’’, in which case it covers a failure to forbid something that one is in a position to forbid, or it may bear a wider meaning that includes failing to take reasonable steps to prevent.

What does distributing an indecent image entail?

A person distributes an indecent photograph or pseudo-photograph if (s)he parts with possession of it to, or shows or makes it available to another person. The intention of the accused is irrelevant but the images must be made visible or at least accessible to another. For example, a person will have ‘‘distributed or showed’’ images stored on a computer if (s)he makes them accessible over the internet by other computer users, even if such users have to enter a password. This means that there will be no distribution if A sends B a price list containing a description of what an image contains but does not give B the means to access the image directly (although A may well be guilty of possession with a view to distribution).

Can you be guilty of possessing an indecent image if you were unaware of its existence?

“Possession” involves both a physical and mental element so that the police must prove that a person is knowingly in custody of or exercises control over the particular image in question. So, what may constitute ‘‘knowledge’’ for this purpose? Again, this is a question of fact but by way of example the Court of Appeal has ruled that a sales assistant in a video shop who knew that the stock included sexually explicit material, but not that it depicted children, had sufficient knowledge of the content of the relevant videos to be in ‘‘possession’’ of them for the purposes of s.1(1)(c). Whilst a person does not possess something which has been ‘‘planted’’ on him, e.g. put into his pocket or his house without his knowledge, a mere mistake as to the nature of a thing under his/her control is not enough to prevent him/her being in possession.

In a different case, the Administrative Court held that a person who had been viewing the internet was held not to be in possession when, unknown to him, they were stored automatically by his browser on the cache of his computer. But the Court also held that in such a case, the temporary downloading of the images onto the screen would be sufficient to constitute either possession or the ‘‘making’’ offence.

What does “show”, “publish” or cause to be published” mean?

The word ‘‘shown’’ means shown to a third party (not yourself); “publish” will likely include distributing, circulating, selling, letting, giving or lending an indecent image, even to just one person, but there must be a positive act.

What defences are there to an accusation of making or distributing indecent images?

Lack of intent

The act of making or taking an indecent photograph or pseudo-photograph must be a deliberate and intentional act, done with the knowledge that the image made is, or is likely to be, an indecent photograph or pseudo-photograph of a child and whilst the prosecution is not required to prove that the accused intended the photograph or pseudo-photograph to be for an indecent purpose, a person does not commit the ‘‘making’’ offence if (s)he:

• downloads an indecent image believing that it is of an adult;
• opens an attachment to an email without knowing that it contains an indecent image of a child;
• accidentally takes a photograph of a child which, objectively viewed, is indecent;
• unknown to the accused, indecent images of children that (s)he has been browsing on the internet are automatically downloaded by his / her browser onto the cache of his / her computer (although the accused would be guilty of ‘‘making’’ the images when (s)he downloads them from the internet onto his screen).

It is a defence to an allegation of permitting an indecent photograph of a child to be taken if the accused did not know or could not reasonably be expected to know that the photograph was being taken.

It is a defence to an allegation of distributing or showing indecent photographs or pseudo-photographs if the accused can establish that (s)he had not seen the photographs and did not know, nor had any cause to suspect, that they were indecent, or were indecent photographs of children. Note that a person does not cease to have possession of indecent photographs or pseudo-photographs because (s)he forgets that (s)he has them or believes them to have been destroyed or disposed of.

It is a defence to an allegation of publishing or causing to be published an advertisement relating to indecent photographs or pseudo-photographs if such publication was inadvertent, or accidental.

Consent within marriage or other relationship

If a person is accused of taking or making an indecent photograph of a child, it is a defence if the accused can establish that:

• the child was aged 16 or 17; and
• at the time it was taken or made (s)he and the child were married, in a civil partnership or living together as partners in an ‘‘enduring family relationship’’;
• the child consented to the photograph being taken or made, or the person reasonably believed (s)he consented; and
• the photograph showed the child alone or with the accused but nobody else.

If a person is accused of distributing or showing an indecent photograph of a child, it is a defence if the accused can establish:

• the child was aged 16 or 17; and
• that at the time the accused distributed, showed or obtained the photograph, (s)he and the child were married, in a civil partnership or living together as partners in an ‘‘enduring family relationship’’; and
• the photograph showed the child alone or with the accused but nobody else.

If a person is accused of possessing an indecent photograph of a child with a view to it being distributed or shown, it is a defence if the accused can establish:

• the child was aged 16 or 17; and
• at the time the accused possessed or obtained the photograph, (s)he and the child were married, in a civil partnership or living together as partners in an ‘‘enduring family relationship’’;
• the child consented to the accused possessing the photograph or the defendant reasonably believed (s)he consented and the accused had the photograph in his/her possession with a view to its being distributed or shown to anyone other than the child; and
• the photograph showed the child alone or with the defendant but nobody else.

Criminal proceedings and investigations

It is a defence to an allegation of making an indecent photograph or pseudo-photograph of a child if the accused establishes:

• that it was necessary for him/her to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world; or
• that at the time of the alleged offence the accused was a member of the Security Service, Government Communications Headquarters or the Secret Intelligence Service and that it was necessary for him / her to make the photograph or pseudo-photograph for the exercise of the agency’s functions.

Legitimate reason

It is a defence to an allegation of distributing or showing indecent photographs or pseudo-photographs, or possessing such photographs or pseudo-photographs with a view to their being distributed or shown by the accused to others, if the accused can establish that:

• (s)he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his/her possession; or
• that the accused had not himself/herself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.

How much will it cost?

Richard does not pretend to be the cheapest lawyer; when his clients instruct him they will receive a premium service and Richard wants them to be able to make a sensible, informed decision on how to fund their case. For that reason, he is completely transparent about what he charges, what this pays for and how this compares to a lawyer being remunerated under legal aid.

Richard has compiled a database of historical bills for matters in a single financial year to help him estimate how much a case will cost. Looking at this data there are 69 cases¹ where:

1. The main allegation was taking, having etc. indecent photographs of children,
2. There was a single defendant, who
3. Pleaded not guilty, and
4. Was subseqently tried before a jury in the Crown Court.