Possession of Indecent Images Defences
Are there possession of indecent images defences?
This is a common question we are asked by clients who are being investigated for, or charged with, possession of indecent images.
We are pleased to confirm that yes, there are defences to this charge.
Section 160 of the Criminal Justice Act 1988 relates to possession of an indecent photograph of a child.
It is an offence under this Act for a person to have any indecent photograph, or pseudo-photograph, of a child in his possession.
An indecent photograph includes an indecent film, a copy of an indecent photograph or film and an indecent photograph compromised into a film. A pseudo-photograph means an image, whether made by computer graphics or in any other way, which appears to be a photograph.
If a person is found guilty of this offence, they can face a maximum sentence of up to 5 years’ imprisonment. Therefore, it is important that you seek specialist legal advice before pleading guilty to such a charge.
In all cases, we offer free initial advice to fully understand the circumstances, and we’ve heard many times before by people asking for legal advice on this offence:
“well I didn’t realise the images were on my computer, but given that the police have found them, I guess I’m guilty”
That’s not correct.
It is a defence for a person to prove that he himself had not seen the photograph (or pseudo-photograph) and did not know, nor had any cause to suspect the image to be indecent. This is what we refer to in layman’s terms as “mental possession”.
In order to be found guilty of possession of indecent images of children, the word possession needs to show both the physical element and the mental element of possession: the physical element is that a person must have custody and control of the photograph/pseudo-photograph; the mental element is the knowledge that the photographs are on the device in question and are indecent in nature.
The defence of lack of mental possession, also known as lack of awareness, applies if the defendant can show an absence of knowledge in either respect of either the presence of the photograph in their physical possession, or the fact its subject matter is indecent.
These possession of indecent images defences are often misunderstood, so it is vital that you seek specialist legal advice at the earliest opportunity.
If you are under police investigation, do not sit back and wait to be charged.
Call our criminal defence solicitors for specialist advice on 01623 600645.