In England and Wales, making indecent images is a criminal offence governed primarily by the Protection of Children Act 1978, the Criminal Justice Act 1988, and related legislation. Because the name of the offence is somewhat ambiguous, many people are surprised to learn that it is one of the most common indecent images offences.

In fact, the offence of “making” indecent images is broader than people realise and does not necessarily involve taking photographs of children or having any physical contact with a child. It does not refer to the process of producing and distributing indecent images of children, animals or others, but is more closely related to the offences relating to possessing indecent images.

For those who are accused of making indecent images, it is vital to know that this can happen by mistake and sometimes without the knowledge of the accused person. The sexual offences team at Tyler Hoffman Solicitors has a wealth of experience in defending those who are alleged to have made indecent photographs or other indecent images in the UK, including those who were entirely unaware that the offence had been committed until they were charged. In this blog post, we explain what the law classifies as making indecent images, how the offence is interpreted in practice, how it can happen without the knowledge of the accused and the defences you can rely on in court to prove your innocence.

What does the law view as a making indecent images offence?

Under the law in England and Wales, making an indecent image is subject to wide interpretation, and includes any act that creates a new copy of an indecent image. It is easy to misunderstand how this works in practice, and people often believe that the offence refers to the creation of original images or indecent material. In fact, someone may be guilty of an offence for downloading or otherwise copying an indecent image even if the original image already exists.

In most cases in the UK, charges of making indecent images involve digital files rather than physical photographs of a child, where a charge of possession of indecent images may be relevant instead. In this digital context, making indecent images can include a range of behaviours, both intentional and unintentional:

• Downloading an indecent image from the internet.
• Taking a screenshot of an image or video.
• Saving an image to a device, cloud storage or external drive.
• Opening an image in a way that causes it to be automatically cached or stored.
• Converting a file format or resizing an image.
• Recording a live stream or video call involving indecent content.

The courts treat each newly created copy as a separate act of “making”. In some cases, the police or the Crown Prosecution Service may also interpret the making of indecent images as indicating an intent to distribute such images, which comes with stricter penalties and a higher maximum sentence.

What counts as an “indecent image” under the law?

There is no fixed statutory definition of what constitutes an indecent image under the law, and images must be assessed by the courts using "ordinary standards of decency". The law defines a child as anyone under the age of 18, and any sexual images depicting children will be considered "indecent" for the purposes of this offence.

Images do not just refer to photographs, but can include pseudo-photographs that have been digitally altered, computer graphics, and AI-generated images, as well as videos and screenshots from videos. Cartoon or animated images may also be illegal if they are realistic enough to be considered pseudo-photographs. This point can be subject to interpretation, and your solicitor may challenge the prosecution's categorisation.

When determining whether an image is indecent, the court considers the nature of the image, the age of any children involved, and any evidence of child sexual abuse within the image. For the purposes of determining harm, which is required by the sentencing guidelines for these offences, indecent images of children are grouped into three categories - A, B and C.

Like the overall definition, these categories are not set out word-for-word in legislation but there are some general standards that are applied. The team at Tyler Hoffman can help you to understand the seriousness of any allegations in the early stages of an investigation or prosecution.

Category A

Category A covers images that depict the most severe forms of abuse. This includes images showing:

• Penetrative sexual activity involving a child
• Sexual activity involving violence, coercion, restraint, or humiliation
• Sadistic or masochistic abuse of a child
• Bestiality involving a child
• Extreme exploitation where the child is subjected to severe harm or degradation

Images in this category attract the highest sentences, even where only a small number are involved.

Category B

Category B covers sexual activity involving a child that does not involve penetration. This can encompass images showing:

• Non-penetrative sexual activity between a child and another person
• Sexual activity between children that appears exploitative
• Sexual touching or stimulation of a child
• A child engaging in sexual activity with themselves where the image is clearly sexualised

Although less severe than Category A, making these images is still treated as a serious offence and commonly leads to custodial sentences, depending on volume and context.

Category C

Category C covers images that are sexual in nature but do not show explicit sexual activity. This includes images showing:

• Sexual posing by a child
• Focus on a child’s genital or anal area
• Nude or partially clothed children
• Images that appear innocent at first glance but are framed, cropped, or focused in a sexual way

Category C images include those that do not involve overt sexual acts but are still classed as indecent due to context, focus, and presentation.

These categories are used by the police, Crown Prosecution Service, and courts to assess seriousness and sentencing. Any photograph or pseudo-photograph of a child that falls into any of the above categories can result in a conviction for a sexual offence, and

How can a person make indecent images of children "by accident"?

There are several situations where you might face a charge of making indecent images even when images appeared on your hard drive without your knowledge or consent. Under the law, you can still be classed as “making” an indecent image even if:

• The download happened automatically
• The image was saved without deliberate action
• The file was temporarily stored in a cache or hidden system folder
• The child consented, or took the image themselves and sent it to you

Streaming content can also lead to a making offence if data is written to the device. This is not only a risk when visiting pornographic websites with the intention of viewing such material. There is a risk of indecent images appearing on social media and in other places, and you do not need to have viewed the image to make a copy. Images are sometimes downloaded automatically to your computer's temporary files when they appear on your computer screen, storing a copy without you being aware.

In these cases, courts look at control and awareness to determine an appropriate sentence. If there is sufficient evidence that the person knew the image would be saved or took steps that caused it to be saved, this can amount to making. If not, this can be raised in your defence.

Can you defend a charge of indecent photographs or images?

There can be serious consequences if you are convicted of making, possessing or sharing images that the court views as indecent. In particular, making indecent images of children is a serious criminal offence and can result in a prison sentence for the most serious offences. Other potential penalties include:

• Placement on the Sex Offenders Register
• Sexual Harm Prevention Orders
• Restrictions on internet use and employment

The sentence depends on factors such as the number of images, their category and whether there was any distribution. As such, it is vital to work with a solicitor to build a legal defence, address any aggravating factors and present your version of events. The team at Tyler Hoffman specialises in defending people accused of these offences in both the Crown Court and the Magistrates' Court, and we will work to secure the best possible outcome.

The law focuses on the act of creating a copy, not motivation. People are often charged even where there was no intent to share, no financial gain and no direct contact with a child. This means that you can face significant penalties even if you have no previous convictions and did not intend to make a copy of the image. For this reason, it is vital to have us assess the defences that are available to you, and help you to mount your defence in court. We can also offer guidance on whether pleading guilty would be the best way to minimise your sentence.

It is important to note that an offence is still committed if the person believed the child was over 18, unless that belief was both honest and reasonable and supported by evidence. This can be challenging to raise as a defence, and your solicitor can help you to evaluate whether it will be possible to rely on this during any court proceedings.