The law in England and Wales takes a strict stance on indecent images. Possession, creation or distribution of such material is a criminal offence that carries serious penalties. However, the legal framework surrounding indecent image offences is complex, with classifications and legal definitions that may not be immediately clear.

For those facing allegations or charges of possessing, distributing or creating indecent images, understanding how the law defines the categories of images will help you understand your legal options. It will also help your solicitor decide what kind of strategy they adopt when it comes to mounting your defence. In this blog we discuss the different categories of indecent images, what constitutes possession and how courts approach sentencing.

What counts as an indecent image?

The law does not provide a rigid definition of what makes an image indecent. Instead, a jury applies an objective test to determine whether an image is offensive or inappropriate under legal standards. This means that cases may be assessed differently, depending on the context and content of the image.

Indecent images can include both real and fabricated material, such as:

• Extreme pornography including sexually explicit material involving violence, bestiality or non-consensual acts
• Naked or partially clothed children
• Children engaged in sexual acts, either alone, with adults, other children, or animals
• Pornographic pseudo-photographs of children

A pseudo-photograph is any image that has been digitally altered, generated by AI or otherwise manipulated to resemble a real photograph. Under the Protection of Children Act 1978, such images are treated the same as actual photographs, meaning possession or creation of this material is a criminal offence.

Categories of indecent images

The Sentencing Council guidelines divide indecent images into three categories, based on the level of severity. These classifications determine how the court proceedings unfold and what kind of prison sentence or other penalties might be imposed. The severity of the offence will depend on the nature of the images, the extent of distribution and any previous convictions held by the accused.

Category A images

These images depict the most severe types of sexual abuse, including penetrative acts, sadism and bestiality. Because of the extreme nature of these images, offences related to their possession, production or distribution typically result in the highest penalties and maximum sentence available under the guidelines.

Those convicted of Category A offences often receive a custodial sentence, meaning time spent in prison. In addition, they will be placed on the Sex Offenders Register, and in many cases, a Sexual Harm Prevention Order (SHPO) will be imposed to restrict their internet access and interactions with minors.

Category B images

Category B images involve non-penetrative sexual activity, but still depict illegal sexual behaviour. This might include sexual touching, simulated sexual acts or any sexualised interactions involving children. Although these images are not considered as severe as Category A, they remain a serious criminal offence. The Sentencing Council guidelines acknowledge that these offences vary in severity, and as such, penalties will depend on the context of the offence, and how effectively your legal defence can present mitigating factors on your behalf.

When deciding between a custodial and suspended sentence the courts will consider how many images the offender had, their nature and whether there was intent to distribute. Even if a custodial sentence is avoided, individuals convicted of Category B offences may be placed on the Sex Offenders Register and subject to a SHPO.

Category C images

Category C images do not depict sexual acts but are still considered illegal under indecency laws. These images might include partially clothed children, sexual posing or other content deemed inappropriate under the law. While less severe than Category A and B, the courts still take these offences seriously, particularly if they involve a large volume of material or if there is evidence of distributing indecent images.

For category C offences, sentencing often ranges from community orders to a suspended sentence. In some cases aggravating factors such as a large volume of images or a pattern of accessing and storing images over time may result in a prison sentence being imposed. Courts will consider elements such as the intent behind possession, whether the defendant has previous convictions and whether there was any active participation in the acquisition or storage of the images when deciding the penalty.

Regardless of the category, any conviction for an indecent images offence can have lasting legal and personal consequences, affecting employment, travel and reputation.

Making versus possessing indecent images

Many people assume that making indecent photographs requires actively creating or producing content. However, the legal definition is much broader and includes activities that may not seem obvious:

• Downloading an image to a computer, phone or tablet, even if it is not shared or saved permanently.
• Opening an email attachment that contains indecent material, whether or not it was requested.
• Viewing indecent images on a website, even if the images are not deliberately downloaded or stored.
• AI-generated images or pseudo photographs, which are treated the same as real photographs under the law.

Even temporary possession or unintentional downloading can be considered as "making" indecent images if there is evidence of access and viewing. This wide interpretation means that many people have no idea they have committed an offence until they are arrested.

Possession, on the other hand, refers to having an indecent image stored on a device or storage medium, regardless of whether it has been accessed or viewed. This distinction is legally significant because possession alone is enough to result in criminal charges, even if there was no intent to distribute or engage with the images.

Unlike making, possession does not require any active engagement with the image beyond storage. You could be charged with both offences depending on how the images were obtained and stored.

Understanding the distinction between making and possessing an image is essential when preparing a defence, as proving lack of intent or knowledge in possession cases can sometimes lead to a favourable outcome.

Defending against indecent image charges

There are many circumstances where individuals may have inadvertently or unknowingly obtained indecent material. In these situations, it is important to speak to a solicitor experienced in dealing with this area of law as soon as you become aware of any charges against you. Your solicitor will be able to present a strong argument for your defence, so that your lack of intent and awareness can be fully taken into account. Some of the arguments we often put forward for our clients include:

• Unintentional downloading: many cases involve individuals accessing indecent images while browsing pornographic websites, where such material appeared without their intent or even knowledge. Accidental downloads can occur due to misleading website links or hidden files embedded in other content. If this applies to you, we can investigate whether forensic evidence supports this defence.
• Pop-up adverts: there have been cases where indecent images appeared automatically on a website. We will assess whether your browsing history and device records support this claim.
• Email attachments: sometimes unsolicited email attachments containing indecent images that people did not request or knowingly open can lead to an arrest. Our technical experts can examine your email logs to support this position.
• False accusations: if another person had access to your device, it is possible that they downloaded or stored indecent images without your knowledge. We can use forensics to demonstrate who was using your computer during the time images were accessed.
• Lack of sufficient evidence: the Crown Prosecution Service must prove that you knowingly possessed the images. We can challenge the validity and context of digital evidence, and seek a reduction or dismissal of charges.

At Tyler Hoffman, we understand the complex nature of these cases and the potential impact they can have on your life. Our experienced indecent images solicitors offer practical, non-judgemental legal advice and representation. We will look closely at every aspect of the case to find ways to negotiate a reduced penalty, and in some cases - the dropping of all charges.

Get in touch with Akef Akbar of Tyler Hoffman, who specialises in these cases, on 03300 536 786 for a free initial consultation, or use our online enquiry form to request a confidential consultation.