What is a Making Indecent Images Offence?

Quick answer

The offence of ‘making’ an indecent image of a child is set out in the Protection of Children Act 1978. It covers any act that causes an indecent image of a child to exist on a device – including downloading from a website, viewing online content where the images appear as pop-ups, or opening an email attachment – not just the physical act of taking a photograph. The prosecution must prove that the defendant acted intentionally and with knowledge that the image was, or was likely to be, an indecent image or pseudo-image of a child.

In UK law, the offence of making an indecent image is covered under the Protection of Children Act 1978. It involves not only taking a photograph or video but also any act that causes such an image to exist, such as downloading, viewing online, or opening an email attachment.

This means that even unintentionally accessing indecent images, for example, through pop-ups or website visits, can constitute the offence if the person is found to have knowledge of it.

While the potential sentences for indecent image offences are serious across the board, the most severe punishments relate to producing or distributing indecent images.

Here, we discuss what making an indecent image actually means in detail, the potential defences to making indecent image offences, and what the prosecution needs to prove.

What is an indecent image?

There are clear and very strict guidelines in relation to indecent images. It is a criminal offence to take (or permit to be taken), make, possess, show, distribute, or publish an image of a child posed or pictured indecently, typically in a sexual way.

There is no statutory definition of ‘indecent’. However, it is usually held that, in a case of a trial before a jury, the jury decides what is considered indecent by reference to whether something offends against recognised standards of propriety. This same test also applies if the matter is dealt with at the Magistrates’ Court.

Meanwhile, ‘images’ involve actual photographs or video footage, drawings, tracings, images created digitally, or pseudo-images.

Indecent images also include images of adults who are involved in an indecent act where a child is present, but are not the ones being portrayed indecently.

What is classed as making an indecent image?

It is important to distinguish that making an indecent image does not necessarily refer to the physical act of taking a photograph or video. There are various other actions which could result in somebody being accused of making indecent images, such as:

• Downloading an indecent image to a device – this can occur when you visit websites with the images. You do not have to save the image.
• Accessing a website where indecent images appear as ‘pop-ups’ – this would occur if you went on a website where the images exist.
• If a ‘pop-up’ has appeared whilst watching legal pornography, the court must be satisfied that whilst accessing such pornography, you had knowledge that such pop-ups are likely to contain indecent images.
• Opening an email attachment containing an indecent image – this will download the content.

What does the prosecution need to prove?

The prosecution must show you had the knowledge that images were likely to be an indecent image or pseudo image of a child, that you did not have a legitimate reason for having the image in your possession, or that the image was sent to you upon request and was kept for an unreasonable amount of time.

If you download, open an attachment, or view pop-up images using a device, including mobile phones, laptops or computers, you are at risk of being found guilty of ‘making’ indecent images.

The prosecution must establish that a suspect did this intentionally with knowledge that the image is or is likely to be an indecent image or pseudo image of a child.

What is the difference between making and possessing indecent images?

Both ‘making’ and ‘possessing’ indecent images of children are criminal offences, but they cover different conduct and the prosecution must prove different things.

‘Making’ an indecent image is an offence under the Protection of Children Act 1978. It is committed when a person causes an indecent image of a child to exist on a device – for example by downloading, by viewing online content where the images appear as pop-ups, or by opening an email attachment. The prosecution must prove that the defendant acted intentionally and with knowledge that the image was, or was likely to be, an indecent image of a child.

‘Possessing’ an indecent image is a separate offence under Section 160 of the Criminal Justice Act 1988. It is committed where a person has the image on a device in their possession. The prosecution must prove that the defendant knew the image was in their possession. Statutory defences exist where the defendant had not seen the image and had no cause to suspect it was indecent, where the image was sent without prior request and was not kept for an unreasonable time, or where the defendant otherwise had a legitimate reason for possession.

In practice, the same conduct can give rise to both charges – for example downloading an image to a device is ‘making’, and the image then being on the device is ‘possession’. The Crown Prosecution Service will consider which charge or charges are most appropriate to the specific facts.

Defences to making indecent images

Defence options of possessing an indecent image of a child centre around:

• Having a legitimate reason for having the image in your possession
• That you did not see the image yourself, or did not know or have cause to suspect it was indecent
• The photograph was sent without any prior request and was not kept for an unreasonable amount of time

Our indecent image solicitors can work closely with you to establish a strong defence against the allegations you are facing, tailoring it to your circumstances.

What is the sentence for making indecent images?

Sentencing for ‘making’ indecent images depends on the category of image involved and the level of culpability. The court applies the Sentencing Council’s guideline for indecent images of children, which categorises images as Category A, Category B or Category C.

• Category A is the most serious (involving penetrative sexual activity or sadism),
• Category B involves non-penetrative sexual activity such as masturbation, and
• Category C involves erotic posing. For a fuller breakdown of how categories are defined, see our guide to the categories of indecent images.

The maximum sentence for ‘making’ an indecent image of a child under the Protection of Children Act 1978 is 10 years’ imprisonment on indictment. Convictions typically result in the offender being placed on the Sex Offenders Register and may include a Sexual Harm Prevention Order (SHPO) imposing further restrictions – for example on internet use, on contact with children, or on access to particular places.

For a fuller breakdown of how the categories interact with culpability and harm to determine the sentence, see our guide to indecent images sentencing guidelines.

Contact our team of specialist lawyers dealing with indecent image lawyers today

If you’ve been arrested or charged with making an indecent image, our expert solicitors are available 24/7 for free initial advice and representation. We provide clear legal support in multiple languages through our accredited interpreters, ensuring your interests are always protected. Contact our London, Birmingham, or Manchester offices anytime for immediate assistance:

• Central London Office: 0207 624 7771
• West Hampstead Office: 0207 624 7771
• Manchester Office: 0161 835 1638
• Birmingham Office: 0121 614 3333

The Lucy Faithfull Foundation

If you are a victim of child sexual abuse or at risk of offending, please contact the Lucy Faithfull Foundation for advice.