Indecent and prohibited images of children FAQs
Indecent and Prohibited Images of Children: Frequently Asked Questions
An allegation involving indecent or prohibited images of children can lead to the seizure of phones and computers, a police interview, restrictions on device use and serious consequences for your work and family life.
The legal issues often turn on technical evidence showing how files reached a device, where they were stored, whether they were accessible and whether the user knew they were present.
Contact Sutton Defence Lawyers before answering police questions by calling 07798 753 720 or completing our online contact form. Our emergency telephone line is available 24 hours a day, seven days a week.
This page answers common questions about making, possessing, distributing and producing indecent images, prohibited images of children, sentencing and possible defences in England and Wales.
Immediate Steps and Police Interviews
What should I do if the police accuse me of having indecent images?
Seek advice before interview, preserve your devices and do not delete, move, open or alter any suspected files.
A voluntary police interview is a formal interview under caution. Your answers may be relied upon during the investigation or any later prosecution.
Do not reset a phone, uninstall software, close an account or attempt to examine suspected files yourself. Doing so could alter metadata, remove material relevant to your defence or raise questions about the integrity of the device.
Sutton Defence Lawyers can seek appropriate pre-interview disclosure from the police, explain the suspected offence and arrange representation at the police station.
Can I be prosecuted for an unsolicited indecent image?
Unsolicited receipt does not automatically establish guilt, but opening, saving, forwarding, retaining or knowingly creating a copy may become relevant.
An image may arrive through a messaging application, group conversation, email, social media platform or automatic download without having been requested.
The investigation may examine:
Whether the image was opened or viewed
Whether it was saved, copied or forwarded
How long it remained on the device
Whether automatic-download settings were active
Whether the recipient knew the image was present
Whether similar material had been received before
Whether any steps were taken to remove or report it
The legal concept of "making" an indecent image is interpreted broadly and can include the creation of a digital copy. The significance of unsolicited receipt, automatic software activity and later user conduct depends on the facts and the offence being considered.
Do not forward suspected material to show how it was received. Preserve the device and seek legal advice.
Definitions and Types of Offence
What is an indecent image of a child?
It is an indecent photograph or pseudo-photograph depicting a person under 18, with indecency assessed objectively by the court.
The Protection of Children Act 1978 covers photographs, films, copies and pseudo-photographs. A pseudo-photograph is an image that appears to be a photograph, including certain digitally created or altered images.
Police and prosecutors commonly use three categories:
Category A: penetrative sexual activity, sexual activity with an animal or sadism
Category B: non-penetrative sexual activity
Category C: other indecent images not falling within categories A or B
The category, number of images and alleged conduct can influence the charge and sentence.
Why can images of 16- and 17-year-olds be illegal?
For indecent-image law, a child is a person under 18, despite the general age of consent being 16.
A person aged 16 or 17 may be legally capable of consenting to sexual activity in many circumstances. An indecent photograph or video of that person can still fall within child-image legislation.
Cases involving self-generated images can be legally complex. The ages of those involved, consent, creation, possession and sharing may each require separate assessment.
What does "making" an indecent image mean?
Making can include creating a digital copy by downloading, saving, opening or otherwise causing an indecent image to be stored or displayed.
A person does not need to operate a camera or produce the original photograph. Courts have interpreted making broadly and it can include the creation of a copy through internet or device activity.
Relevant questions may include:
Whether the image was deliberately opened or saved
Whether it arrived without being requested
Whether software created a copy automatically
Whether the user knew what the file contained
Whether another person used the device
How long the material remained
Whether the file was accessible
The prosecution must prove that the legal requirements of the alleged offence are met. The significance of knowledge, deliberate action and automatic software activity depends on how the image was created or displayed.
For sentencing purposes, simple downloading is commonly treated as possession rather than original production.
What is possession of an indecent image?
Possession generally requires custody or control, the ability to access the image and knowledge that it is present.
Section 160 of the Criminal Justice Act 1988 creates the offence of possessing an indecent photograph or pseudo-photograph of a child.
The presence of a file on a device does not settle every issue. A digital examination may need to establish:
Whether the file was accessible
Whether it was stored in an active or deleted area
Which user profile controlled it
Whether it was created by automatic software
Whether the accused knew it existed
Whether the device was shared
Whether the file could be opened
The prosecution does not necessarily have to prove that the person knew the image was legally indecent.
Possession cases often require close analysis of forensic reports rather than reliance on the total file count alone.
Can deleted or inaccessible images amount to possession?
They may amount to possession if the user knew about them and could access, retrieve or control them, but their presence alone does not prove guilt.
Files may be found in:
A recycle bin or recently deleted folder
Browser or application caches
Thumbnail databases
Backup folders
Cloud storage
Deleted areas that remain recoverable
Unallocated storage space
A forensic examination may consider whether the file was previously opened, when it was created or deleted, whether it could be restored and whether the user could access it.
Material found only in inaccessible unallocated space may raise different issues from a file that remains recoverable through an ordinary folder, backup or application.
The prosecution may rely on search terms, folder structures, repeated downloads or viewing history to argue knowledge. The defence may examine software behaviour, timestamps, device access and whether another person used the device.
What is distribution of indecent images?
Distribution can include sending, sharing, uploading, showing or making indecent images available to another person.
Section 1 of the Protection of Children Act 1978 covers distributing or showing indecent photographs. It can include conduct through messaging platforms, online groups, cloud folders and peer-to-peer networks.
An investigation may examine whether:
A file was sent directly
A shared folder was active
Uploading occurred automatically
The accused knew others could access the file
A link was posted
Images were offered to another person
The device was configured to share downloaded files
Peer-to-peer software can create difficult issues where downloading and uploading occur through the same program. The software settings and the user's knowledge may be significant.
What is production of an indecent image?
Production generally means creating an image at source, such as taking or recording the original photograph or video.
Liability may also arise where another person assists, encourages or participates in its creation, depending on the facts and charge.
Digitally altering a legitimate photograph to create an indecent pseudo-photograph may fall within the legislation, depending on the finished image and the conduct involved.
Production is treated more seriously than simple possession under sentencing guidance.
Is downloading an image treated as production?
Simple downloading is normally treated as possession for sentencing, even though it may meet the wider legal meaning of making a copy.
Original production usually concerns creating an image at source, such as taking a photograph or recording a video.
The correct charge and sentencing approach depend on how the material was created, obtained and used.
What are prohibited images of children?
Prohibited images are certain pornographic, non-photographic images of children that meet the statutory content test and are grossly offensive, disgusting or obscene.
Section 62 of the Coroners and Justice Act 2009 applies to qualifying non-photographic material, which may include:
Computer-generated images
Cartoons
Drawings
Manga-style material
Digital graphic representations
The image must be pornographic, depict conduct described by the legislation and be grossly offensive, disgusting or otherwise obscene.
Prohibited images are legally distinct from photographs and pseudo-photographs prosecuted under indecent-image legislation.
Can AI-generated images, cartoons or drawings be illegal?
Yes. AI-generated images, cartoons and drawings can be illegal if they meet the legal definition of a pseudo-photograph or prohibited image.
A realistic AI-generated image that appears photographic may be treated as a pseudo-photograph under indecent-image legislation.
Clearly non-photographic material, including cartoons, drawings and some computer-generated images, may fall within the prohibited-images offence where it:
Is pornographic
Depicts conduct specified by the legislation
Is grossly offensive, disgusting or otherwise obscene
The fact that no real child was photographed does not automatically make the material lawful. The legal classification depends on the finished image, how photographic it appears, the apparent age of the person depicted and the nature of the content.
What is a paedophile manual?
It is an item containing advice or guidance about sexually abusing children.
Section 69 of the Serious Crime Act 2015 creates an offence of possessing a paedophile manual.
The legislation contains statutory defences concerning:
Possession for a legitimate reason
Lack of knowledge and no reason to suspect the item contained such material
Unsolicited receipt where the item was not retained for an unreasonable period
The complete item, method of acquisition, storage location and evidence of use may be relevant.
Sentencing and Other Consequences
Does the number of images determine the sentence?
The number matters, but image category, conduct and the wider circumstances can carry equal or greater weight.
There is no universal number that automatically amounts to a large collection. The court applies sentencing guidance rather than a fixed numerical rule.
The assessment may consider:
The most serious category
The total volume
Whether serious images were representative
Possession, distribution or production
Searches or organised collections
Length of offending
Use of secure or hidden storage
Previous relevant convictions
Evidence of commercial gain
Contact offending or grooming material
A small number of Category A images may be treated more seriously than a larger number of lower-category images, depending on the facts.
Could I receive a prison sentence for indecent images?
A court may impose a community order, suspended sentence or immediate custody, depending on the offence, image category, conduct and mitigation.
The sentencing approach distinguishes possession, distribution and production. Production and organised distribution are commonly treated more seriously than simple possession.
Relevant mitigation may include:
No previous convictions
Genuine remorse
Demonstrated rehabilitation
Age or lack of maturity where relevant
Mental or physical health supported by evidence
Caring responsibilities
Limited offending
An early guilty plea
No solicitor can promise that custody will be avoided. The likely range depends on the charge, image category, conduct and personal circumstances.
Will I have to sign the sex offenders register?
A qualifying conviction or sentence can trigger statutory notification requirements, with the duration determined by the sentence or disposal.
Notification requirements are commonly called the sex offenders register, although that is not the formal statutory term.
The duration may be fixed or indefinite. A person subject to indefinite requirements may become eligible to apply for a police review after the statutory minimum period.
Eligibility for review does not mean the requirements end automatically.
Could the court impose a Sexual Harm Prevention Order?
A court may impose an SHPO where the statutory test is met and restrictions are needed to protect the public from sexual harm.
An order may regulate:
Internet-enabled devices
Use of particular applications
Deletion of internet history
Contact with children
Possession of certain devices
Disclosure of device details
Use of encryption or anonymous browsing services
Proposed terms should be examined closely. A restriction should be lawful, proportionate, clear and connected to the identified risk.
Breaching an SHPO is a separate criminal offence.
Will my devices be destroyed?
A court may order forfeiture and destruction of devices or storage media containing illegal images.
The outcome can depend on whether the unlawful material can be removed and whether the device itself should be forfeited under the relevant legislation.
Phones, computers, hard drives and storage devices may remain with the police for a lengthy period during forensic examination.
Ask your solicitor about lawful access to unrelated personal or business information held on a seized device.
Could the allegation affect my employment?
Yes. An investigation or conviction may lead to suspension, safeguarding enquiries, DBS consequences or professional proceedings.
Teachers, doctors, social workers, healthcare workers and other regulated professionals may face a separate process before the criminal case concludes.
Take advice before providing a detailed statement to an employer, regulator or safeguarding body. Information given in one process may later be compared with answers given to the police.
Possible Defences
Are any defences available?
Possible defences may concern knowledge, possession, legitimate reason, unsolicited receipt or lack of control over the material.
The available defence depends on the offence charged. Issues may include:
Lack of knowledge that the files existed
No control over the device or account
Inaccessible deleted material
Unsolicited receipt
Disposal without unreasonable retention
Legitimate professional or legal possession
Mistaken attribution to the wrong user
Automatic software activity
A reasonable belief that the person shown was 18 or over, where the statutory test applies
A digital forensic expert may be required where the case turns on device behaviour, file creation, storage location or user access.
How Sutton Defence Lawyers Can Help
Sutton Defence Lawyers focuses on defending sexual offence allegations, including cases involving indecent and prohibited images of children.
The firm is led by Stuart Sutton, who qualified as a solicitor in 1993. Our team can advise before a voluntary or post-arrest interview and provide representation throughout the investigation and any later Crown Court proceedings.
Our work may include:
Seeking appropriate pre-interview disclosure
Advising on police interview strategy
Arranging representation at the police station
Reviewing the scope of searches and seizures
Examining police digital-forensic evidence
Identifying other people who had access to a device or account
Instructing an independent computer expert where appropriate
Reviewing image categories, file schedules and storage locations
Preparing a defence statement after charge
Working with experienced barristers and King's Counsel
Preparing mitigation where a guilty plea is advised
Reviewing notification requirements and proposed court orders
Do not assess the strength of the allegation solely by the number of files quoted by the police. Accessibility, knowledge, device access, file history and the way material reached the device may each require close examination.
Clients instruct Sutton Defence Lawyers for specialist sexual offence defence experience, detailed digital-evidence analysis, direct communication and confidential assistance.
Sutton Defence Lawyers provides privately funded representation and does not undertake legal-aid casework. Fixed fees may be available in suitable cases, with interest-free instalment arrangements subject to agreement.
Our emergency telephone line is available 24 hours a day.
Sutton Defence Lawyers has represented clients in serious sexual offence cases that resulted in not guilty outcomes or proceedings concluding before trial. Past results do not guarantee the outcome of another matter. Each case depends on its own evidence and legal issues.
Contact Our Indecent Image Defence Solicitors in England and Wales
Take legal advice before attending a police interview or providing an explanation about material found on a device.
Sutton Defence Lawyers represents clients facing allegations of making, possessing, distributing and producing indecent images, possession of prohibited images and related digital offences across England and Wales.
Call 07798 753 720 for confidential advice. Our emergency telephone line is available 24 hours a day, seven days a week. You can complete the firm's online contact form to request assistance.
This page provides general information about the law in England and Wales. It does not constitute legal advice on an individual case.
