Figures obtained by way of the Freedom of Information Act requests from 27 police forces by the Guardian newspaper showed that 6,499 children under the age of 14 were investigated for taking or sharing indecent images of themselves or other minors between 1 January 2017 and 21 August 2019. Of that number, 306 investigations were into children under 10 years of age, the youngest child being four years of age. Although limited information is available regarding the nature of incidents, one involved a child of 9 sending a naked selfie of himself via Facebook messenger and a girl of nine years old was reported as an offender for sending a naked image of herself to someone on Instagram. It is thought that the majority of investigations relate to sexting (the ‘consensual’ exchange of explicit messages). Only 30 cases resulted in a charge, caution or summons for the child.

The law

Section 1 of the Protection of Children Act 1978 provides that it is an offence to:

• “Take, or permit to take, any indecent photograph of a child;
• To distribute or show such indecent photograph;
• To have in his possession such indecent photograph with a view of their being distributed or shown by himself or others”

Section 2(3) and 7(5) of the Act define a child as “a person under the age of 18.”

In addition, section 15A of the Sexual Offences Act 2003 addresses sexual communication with a child, and provides that “A person aged 18 or over (A) commits an offence if:-

• For the purpose of obtaining sexual gratification, A intentionally communicates with another person (B);
• The communication is sexual or is intended to encourage B to make (whether to A or to another) a communication which is sexual, and;
• B is under 16 and A does not reasonably believe that B is 16 or over.”

In determining whether a communication is “sexual”, it will be considered so if any part of it relates to sexual activity or if a reasonable person would, in all circumstances but regardless of any person’s purpose, consider any part of the communication to be sexual. The definition of sexual in this context is an “activity that a reasonable person would, in all circumstances but regardless of any person’s purpose, consider to be sexual”. As such the provisions of the Sexual Offences Act 2003 does not address sexting between children under the age of 18.

Guidance published by the College of Policing into police action in response to youth produced sexual imagery advocates a proportionate police response bearing in mind the impact of investigation and prosecution, and especially the implications of being labelled a “sex offender”. The Home Office requires all investigations to be allocated a crime outcome code. The guidance provides that in cases where there is no evidence of aggravating factors (i.e. no adults involved, no profit motive, exploitation, coercion, violence or malicious intent), no inappropriate sharing nor evidence of persistent behaviour, an outcome 21 crime outcome code should be utilised. By issuing such an outcome it avoids the need for further investigation and police interview, and allows other first responders / schools / neighbourhood teams to respond appropriately. An outcome 21 code states “Further investigation, resulting from the crime report, which would provide evidence sufficient to support formal action being taken against the suspect is not in the public interest – police decision.”

On the basis of the figures obtained by the Guardian, it appears that the outcome 21 crime code is being widely used and the criminal justice system engaged in only the most extreme of cases. However, given the numbers of children subject to investigation it is likely that legislative reform will be considered in the longer term in order to ensure the law keeps up with developments in technology and social media.

Written by Louise Roden at BLM

louise.roden@blmlaw.com