Is There A Defence For Possession Of Indecent Images?

In England, the Protection of Children Act 1978 (PCA) and the Criminal Justice Act 1988 (CJA) make it a criminal offence to possess, access, distribute, or produce ‘indecent images’ of children.

These are images – including not just photos, but also videos, electronic data, and digitally generated or altered images – that depict minors in a sexual context. 

They can range from merely suggestive to sexually explicit, with the severity of the charges and sentence (if convicted) reflecting the severity of the image’s content.

Law enforcement agencies work hard to identify potential offenders and prosecute them to the fullest possible extent, which could result in them spending several years behind bars.

That’s why it’s crucial to present a strong legal defence if you have been accused of or charged with an indecent images criminal offence. 

Read on to learn more about some of the common defences used in indecent image cases.


Legitimate Reason


There is rarely a legitimate reason for producing indecent images of children, but there may be some specific occasions when an individual does have a legitimate reason for possessing or ‘making’ (accessing) an indecent image.

This defence can be used to explain that the defendant only had custody of, accessed, or shared the image as far as necessary to complete their duties at work. 

For example, legal or medical professionals, police officers, or researchers may come across such materials in the course of preventing, detecting, investigating, or prosecuting a crime.

‘Legitimate reason’ is not defined in the legislation, so judges and juries may be sceptical of this.


Lack of Awareness


If an individual accused of possessing indecent images can prove that they had not actually viewed them and were either unaware of their existence or that they depicted children, this could constitute a ‘lack of awareness’ defence.

The defendant would have to provide evidence that they did not know about the presence of the indecent images on their device – for example, that they were ‘made’ or shared unintentionally via an inadvertent pop-up or virus download.

This defence would rely on proving a lack of intent through an absence of activities such as searching for the images or actively accessing them, using evidence from forensic examinations of the devices.


Unsolicited Images


In certain circumstances, a defendant could claim that the indecent image in question was sent to them without their prior request and that they did not keep the image for an unreasonable time.

The legislation does not define what is considered a ‘prior request’ to receive indecent images, nor what constitutes an ‘unreasonable’ period of time to keep them, so the matter of reasonableness is typically left to a jury to decide.

After all, it is easier than people may think to accidentally access indecent images in the age of streams, torrents, and mass file sharing, often without people even knowing they are there. 

However, this defence would require proof that the indecent image was never accessed, or was irretrievably deleted once the recipient became aware of its existence and/or its content. 

The recipient may also be obligated to report the sender of the unsolicited indecent images to the authorities to protect their own position.


Marriage and Relationships


On 27th February 2023, the Marriage and Civil Partnership (Minimum Age) Act 2022 came into force, making it illegal for anyone under the age of 18 to get married in England or Wales.

Previously, children between 16 years and old and 18 years old could get married with permission from their parent or legal guardian, which allowed for a ‘marriage’ defence in certain scenarios.

For example, if the defendant was an adult over 18 years old who was in a legally recognised relationship with a 16 or 17 year old, they could mount a defence that the indecent images were of their spouse or civil partner who was of legal age to marry.

In such a case, the images must only depict the child alone or with the defendant. Depending on which section of which Act the charges are drawn from, there may be additional evidentiary requirements, such as proving that the child consented to the activity and there was no intention to distribute the indecent images to anyone else.

Now that the law has changed in England and Wales, this defence may only be applicable in relation to historical offences, applying the law in force at the time the offence was committed.


Mitigating Factors


When it comes to indecent images charges, the legal system may take mitigating factors into consideration when prosecuting or (in the case of a conviction) determining a sentence.

These can include factors such as the defendant’s age, mental health, and criminal history, in addition to the severity of the images and the degree of harm to the victim or victims.

In the least severe cases, proof of the defendant’s previous good character and genuine remorse, including full cooperation with the investigation, could help to result in charges being dropped. 

However, criminal behaviour cannot be excused, so convictions and sentences may still be imposed where necessary – though a strong defence with mitigating factors could reduce their severity.

Indecent image offences are a complex and sensitive area of law, which is why it’s so important for anyone facing such allegations or charges to secure experienced legal counsel right away.

An indecent images solicitor can assess your situation and determine whether there is an applicable legal defence or mitigating factors, and which evidence is needed to build your case.