It is an unfortunate fact that the Internet is awash with illegal pornography, which is incredibly easy to download (either intentionally or unintentionally) meaning year on year more individuals are being investigated by the police and put before the courts for downloading indecent images of children or extreme pornography.
If you are being investigated by the police or if you have already been charged and have to attend court it is vital that you receive expert advice from a specialist indecent images solicitor as early as possible to ascertain if you have a defence. Even if the case is watertight and you will be pleading guilty it is crucial you are properly represented in order to limit the damage.
These cases are always treated extremely seriously by the courts and in the event of a guilty plea or conviction the sentencing guidelines make it clear that a prison sentence is a starting point for almost all cases (unless the number of images is very small and relating to the least serious (category C) images).
However McMillans Solicitors has an incredible record in persuading the court to deal with our clients in ways that avoids immediate prison. This is because we meticulously prepare our cases including obtaining very detailed background information, advising our clients on character references and counselling options and we only use specialist barristers with a wealth of experience and knowledge in this area including the technical aspects often present in these cases.
Where you maintain that you had no knowledge of the image we will immediately consider instructing a forensic computer expert who can provide an expert opinion on a number of issues for example:
Evidence of identity of the user who actually viewed images, evidence of whether active searches were done for the images, whether the images can be proved to have been viewed, and whether there has been any deliberate editing or saving of the images, or whether images are stored as a result of automated processes. The issue of remote access of a computer by a third party should also always be considered. The location of images, for example in a temporary internet file folder, may also be relevant if it shows that an item was not easily retrievable to the user. We have a number of incredibly experienced experts that we regularly use in such cases.
Criminal Justice Act 1988, s 160
160.—(1) Subject to section 160A, it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.
(2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—
(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or
(c) that the photograph or pseudo-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.
Protection of Children Act 1978, s 1
1.—(1) Subject to sections 1A and 1B, it is an offence for a person—
(a) to take, or permit to be taken or to make, any 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 possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself 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.
(2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.
(3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.
(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove—
(a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or
(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.
As you can see the law in this area is far from straightforward and there are a number of possible defences available. For example the prosecution must first prove that the image is actually as a matter of law ‘indecent’ and in all cases it must be proved that this was a deliberate and intentional act, done with the knowledge that the image made is, or is likely to be, indecent
Even if the image is clearly indecent you may have a defence if you had a legitimate reason for having or that you had not yourself seen the image and you did not know, nor had any cause to suspect, it to be indecent or that the image was sent to you without any prior request made by you or on his behalf and that you did not keep it for an unreasonable time. This defence would be available for example if a friend sends you an illegal image as a ‘joke’ and you delete it immediately
All of these issues need to be considered very carefully with a specialist indecent images solicitor. Many cases we are involved in involve us viewing the images with our client at a police station or court in order to confirm that our the image is indeed indecent (and what category it falls into) and our client actually has knowledge of it.
Please feel free to call us 24 hours a day 7 days a week for free initial advice on the telephone from a specialist indecent images solicitor. All enquiries are, of course, treated in the strictest confidence.