The Dark Web & Indecent Images: Can the Police Trace You? What Defences Do You Have?

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Child sex abuse images and videos are very common online, despite considerable efforts by tech companies, lawmakers and police to stop them. The prevalence of online crime, and particularly crime relating to child sexual abuse, has surged during the COVID-19 pandemic. PCD Solicitors are working daily with the countries leading experts on cases concerning alleged sexual crimes taking place online. This blog aims to specifically explain offences alleged to have taken place by use of the dark web, and how those offences are investigated.  

What is the dark web? 

Indecent material is mainly distributed and viewed on an anonymous part of the internet called the ‘dark web’, where offenders can trade images believing there is no risk of prosecution. There is more than one platform offering anonymous internet browsing - a few examples being i2p, FreeNet and Tor.

Tor is the largest by a considerable distance and presents the biggest problem for the police. It is a network which uses ‘open-source’ code, that is, code which is designed to be publicly accessible - anyone can see, modify, and distribute the code as they see fit. This type of setup grants users total anonymity by encrypting their IP address, and allows them to escape tracking by internet service providers.

However, anyone intent on hiding their identity by amending code may also be able to imitate another person’s identity. For example, if a person experienced in accessing and distributing indecent images of children on the dark web copied your identity, used your IP address and gained access to your computer, any police investigation would show you as the person committing the offence.

When the anonymity of the open source code is combined with cryptocurrency, such as Bitcoin, (which allows users to purchase child pornography with currency that is arguably untraceable) tracking such offenders becomes almost impossible. Unfortunately the police may be inclined to go for the ‘easy target’ and if your details show up as the person accessing the dark web then the police will regard you as guilty.

How the police can recover material 

Evidence can be recovered by the police, both on the internal storage of a computer, and in the cloud network. Ever-advancing ‘digital forensic’ technology allows the police to identify offenders who have engaged with illegal material online, even if the material has since been deleted from their device. But as noted above, anyone who has fraudulently accessed your computer will not be too concerned about leaving traces of your details for the police to find.

Electronic devices such as mobile phones, tablets and computers store vast amounts of information. Forensic examination by the police can give clues as to what the device has been used for, and what the user has searched for on the internet. Even though the file is no longer in the user’s possession, there could still be an offence committed if evidence indicates that the file was downloaded onto the device. The police may also be able to recover a file which the user believed was permanently deleted. 

It is important to note that some of information may be stored without the user’s knowledge, in effect where the users identity has been cloned.

It is imperative that you seek legal advice whilst awaiting the outcome of a forensic investigation into your electronic devices. The wait for forensic results can be long and painful, as there is currently a large backlog of cases arising from the rise of cyber crime during lockdown. Here at PCD Solicitors we are experts in defending sexual allegations and can advise you of the likely outcome of a case, and liaise with the police and CPS to try to prevent the case proceeding to court in the first instance. During the investigation stage we can instruct our own digital forensic experts to assist with your case and challenge the findings from the police. We can also start to work on your defence issues in case the police do refer your case to court.

If you are currently facing the difficult situation of being under investigation by the police for an alleged child sex offence, do not hesitate to contact one of our specialist solicitors, for a free and confidential phone consultation.

The Law and Defences

Under Section 1(1) of the Protection of Children Act 1978 (PCA 1978) an offence is committed if a person deliberately or knowingly takes, makes, permits to be taken, distributes, or shows indecent photographs (or pseudo-photographs created by computer or other graphic methods) of a child, or possesses them in order to distribute or show them or publish any advertisement for indecent photographs of children. The maximum sentence is 10 years in prison.

The Section 160(1) of the Criminal Justice Act 1988 (CJA 1988) covers the offence of possession of an indecent photograph of a child. The maximum sentence is 5 years in prison.

In addition to any prison sentence, the court will also impose ancillary orders, such as the requirement to sign the sex offenders register upon release from prison. The court can also make a Sexual Offences Prevention Order which bans the offender from engaging in regulated activity with children. 

Defences to the charges 

You will note from the legislation quoted above that the PCA 1978 requires a deliberate act or knowledge (relating to the taking, distributing, etc, of indecent images). The police will, of course, believe that your actions were deliberate and you had knowledge (and they immediately conclude you are guilty). Therefore, it is important that your solicitor looks for evidence to establish that you did not act deliberately or with knowledge.

Section 1(4) of the PCA 1978 provides two defences to the Section 1(1) offence; firstly where the defendant had a legitimate reason for distributing, showing or possessing the photographs, and, secondly where he had not himself seen the photographs, and did not know, or have any cause to suspect, them to be indecent.

‘Legitimate reason’ might include use of images for the purposes of professional training and in the course of genuine research. If you have been accused of an offence but we can show that you were undertaking genuine research, with no alternative but to have this sort of material on your device (as opposed to a person with an unhealthy interest in the possession of indecent photographs) then the defence will be established and you should not be convicted. 

Therefore, even if the police can establish that you deliberately and knowingly had images on your computer, you would not be convicted if you were completing genuine research. 

If you have acted innocently and have photographs on your device which have not been viewed by you, and you had no reason to suspect were indecent photographs of children then you should not be convicted. 

There are also defences available under the CJA 1988. Section 160(2) of the CJA 1988 provides three possible defences to the possession of an indecent photograph of a child. The first two defences are the same as those provided for the s1 PCA 1978 offence above. The third defence is where the defendant can show that the photograph was sent to him without any prior request made by him or on his behalf, and that he did not keep it for an unreasonable time. What constitutes an ‘unreasonable time’ is entirely a question of fact, and thus is a question for the jury. 

Avoiding a Prosecution - Avoiding Court

You will note from the above that the defences are particularly important if you are charged with an offence. However, it is vital that your solicitor considers any defences available to you during the police investigation stage - before you are charged. This is because the police will usually refer your case to the Crown Prosecution Service for a review prior to any decision being made as to charge. The CPS will then review the evidence as presented by the police and make a decision whether you should be charged. At PCD Solicitors we are often involved in this process where we can make representations to the police and the CPS to try and avoid a prosecution. 

For example, in previous cases we have been able to convince the police / CPS to drop cases for reasons that include:

  • Our client did not deliberately or knowingly have images on his computer
  • Our client had a legitimate reason for accessing the indecent images
  • Our client had not seen the images
  • Our client did not know, or have any cause to suspect, the images to be indecent
  • Our client was undertaking genuine research, with no alternative but to have this sort of material on his device
  • Our client was in possession of indecent images but they were not requested by him and were not kept by him

You will note that these are the defences that could be raised if you are charged with an offence and have to attend court. However, they can also be raised prior to charge with a view to convincing the CPS not to charge. It does mean, however, that you need to instruct solicitors at an early stage - as soon as possible - so that we have time to review your case and liaise with the police and CPS.

For further information of how evidence can be challenged in such cases, please see our blog article “Digital Forensics FAQs”.

PCD Solicitors are here to help you

Most cases involving indecent images will involve the forensic examination of your devices by a forensic expert working for, or instructed by, the police. It can greatly assist your case if you seek legal advice before the outcome of a forensic investigation. The fact that the police have raided your home and seized electronic equipment, or have requested your attendance at the police station, means that they already have information / evidence that you have committed an offence. This is likely to be information relating to search terms or images identified by your Internet Service Provider and relating to your internet protocol address. Unless you take action early on it is more likely you will be charged.

If you are currently facing an investigation by the police for an alleged child sex offence, please do not hesitate to contact one of our specialist solicitors, for a free and confidential phone consultation. In addition, most of our work can be completed on a low fixed fee, meaning you can be assured of the total cost of our legal advice at the outset. Please call: 0151 705 8488 or email: info@pcdsolicitors.co.uk.