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Possessing indecent images of children – can instant messaging make someone a criminal?11th December 2019 Criminal Defence
The case of former acting chief superintendent Novlett Robyn Williams, who was sentenced last month and placed on the sex offenders register for five years after she was sent an indecent video of a child over WhatsApp by her sister, has brought into focus again the potential consequences of receiving unsolicited images over instant messaging.
The reality of modern day electronic messaging is that pictures and videos can be sent easily and instantaneously to a single person or whole groups of people at a time. Williams was reportedly one of 17 people to receive the video from her sister. Most instant messaging apps do not even require the recipient to consent to contact from the sender before the message is received. Here we consider the position of a person who receives an indecent image of a child without requesting it.
There are two main laws which create offences of possessing indecent images of children. Section 1 of the Protection of Children Act 1978 is less relevant to this blog because this law requires the person to possess the photograph with a view to it being distributed or being shown by himself or others. In this blog we assume the recipient receives a message which they did not want to possess, let alone distribute or show to another.
However, section 160 of the Criminal Justice Act 1988 (the Act) makes it an offence to simply have possession of any indecent photograph or pseudo-photograph of a child. The offence is complete at that stage unless there is a defence. Easily understood is the definition of a child as anyone under the age of 18. Perhaps less easy to accept is that something is considered to be indecent by reference to an objective test applied by a jury or a magistrate. The application and effect of this test is outside the scope of this blog.
It is a defence for someone who has been sent an indecent image to say that it was sent to them without any prior request made by them or on their behalf and furthermore that they did not keep it for an unreasonable time. The Act does not define what a ‘prior request’ is but this will be a matter of evidence taken from the messages (if any) that preceded the sending of the indecent image or, if there are none, any evidence of a request made outside the instant messaging app (such as a telephone call).
What is likely to be much more problematic is what constitutes an ‘unreasonable time’. Reasonableness will be left to the jury to decide. The reference to ‘time’ suggests that the offending image should be deleted immediately or very quickly after. But what about the person who receives an indecent image, is disgusted by it and does not delete it for days, months or even years because they have not looked at that message conversation thread again? Are they to be held criminal liable because they did not have the foresight to delete the message immediately?
Even more worrying is the criticism that Williams received for not reporting the indecent image. The defence set out in section 160(2)(c) of the Act, discussed above, makes no mention of requiring someone to report the image. This criticism is undoubtedly linked to Williams’ position as a member of the police, although Williams was cleared of a charge of corrupt or improper exercise of police powers in failing to report the distribution of an image. Even so, persons placed in this situation by being sent an unsolicited indecent image will worry about what their legal obligations are.
Lee Adams, Head of London Business Crime and Regulation, can be contacted via Lee.Adams@jmw.co.uk.