PCD Solicitors are often advising clients who are accused of being in possession and or of making indecent images of children. The most often asked question from our clients is "will I go to prison?". It is of course a frightening prospect and what can also be a grave concern is the stigma attached to a person who is convicted or found guilty of child sex offences. This blog is written to provide answers to frequently asked questions regarding sentence, and how a sentence is determined by the courts.
What is an indecent image?
An indecent image refers to a sexual image of a child (under 18) which includes nude or partially clothed children posing sexually in self generated images. Charges authorised by the Crown Prosecution Service (CPS) relating to indecent images are most commonly possession or making, the latter of which is more severe. There are three categories of images:
Category A images are the most obscene and involve penetrative sexual activity.
Category B images involve non penetrative activity but sexual activity is taking place.
Category C is all images of a sexual nature of a child that do not fall into category A or B. For example; a child posing naked or partially naked in what would appear to a reasonable person to be sexual.
Section 1(1)(a) of the Protection of Children Act 1978 makes it an offence to make an indecent image of a child. Making means to download an image bringing it in to you possession.
Section 160(1) of the Criminal Justice Act 1988 makes it an offence to have an indecent image in your possession.
The elements of each offence differ and it is important you discuss this with a specialist solicitor who can determine whether the elements are met in your case, and who can determine whether there is any defence available.
How is an indecent image categorised?
The police have access to the Child Abuse Image Database (CAID) which is designed to assist in the categorisation of indecent images of children, and to also identify any potential victims of child abuse.
CAID is a secure database which holds records of child abuse images known to UK law enforcement. It has been compiled with indecent images of children from around the world and when a device is seized from a suspect its content is compared against known data held within this database.
When an image has been graded by three officers and the same grade has been given, it will be stored by CAID as an approved trusted grade. There is therefore, no requirement for the police or the CPS to re-grade the same image in every new case saving the police time and providing a consistent approach to grading known images.
As defence solicitors who specialise in sexual offences we work closely with some of the UK leading forensic experts. We are aware that CAID is not necessarily accurate and would always advise a client who disputes the age of a person in an image to have their own independent expert carry out the grading. The difference between a category A and Category B image can greatly reduce a sentence and even be the deciding factor as to whether a person is imprisoned or not.
What sentence will the court impose?
The possession and or making of indecent images is what is referred to as an either way offence. This means that a case is capable of being heard by the Magistrates Court or the Crown Court.
Which court hears a case is dependent on the seriousness of the case and whether it is within the courts jurisdiction. Where a magistrates court accepts an either-way offence, the defendant is then given the option as to whether they would like their case to remain in the magistrates or elect the Crown Court. There are benefits to each court and your solicitor should discuss those in detail with you prior to your court appearance.
The sentencing guidelines differ for each offence. An offence under section 1 of the Protection of Children 1978 carries a maximum of 10 years imprisonment with a range of a community order to nine years imprisonment.
For the offence under section 160(1) of the Criminal Justice Act 1988 the maximum sentence is five years imprisonment with a sentencing range of a community order to three years imprisonment.
There are many factors that determine where a case lies within the range. The factors being what category the images are graded at, the amount of images, and any aggravating or mitigating factors that are relevant to the case and the defendant.
The risk of custody is therefore very real and it is important that your case is considered by a specialist lawyer so that you can be guided on the most likely sentence, with specific reference to the facts of your case. It is important to remember, not every case is the same and every defendant has individual personal circumstances. PCD Solicitors understand the importance of approaching each case afresh, and that not one approach fits all clients. We therefore offer a tailored service to each client, to work with you to ensure we understand you, your personal circumstances, your concerns and the reasons for which you find yourself before the court.
PCD Solicitors have avoided immediate custody for all clients accused of possession and or making of indecent images. We work hard to ensure that a client is prepared for sentencing and time is spent to gather mitigation for the client to assist them in obtaining the most lenient sentence possible.
when convicted of such offences it is a mandatory requirement for a defendant to sign the Sex Offenders Register, this cannot be avoided. It is also highly likely that a defendant would be made subject to a Sexual Harm Prevention Order, however this should not affect their contact with children. PCD Solicitors welcome enquiries regarding court orders as a result of sentence, and regularly advise and act for clients wishing to have their orders amended.
If you or a family member would like to discuss your case or potential sentence or court orders imposed, please contact one of our lawyers today for a free initial consultation.