Sexting

Introduction

Sexting, also described as ‘youth-produced sexual imagery’, is the ‘exchange of sexual messages or images’ and the ‘creating, sharing and forwarding of sexually suggestive nude or nearly nude images through mobile phones and the internet’. In practice, teenagers are using a wide range of messaging services, email and social media apps to send ‘sexts’.

In 2016, NSPCC research revealed that 1 in 6 suspects reported to the police for sexual images were under 18-year-olds.1 In 2019 the Guardian2 reported that, over the three-year period reviewed, more than 6,000 children under 14 had been investigated by police for sexting, including some children as young as four who were classified as ‘suspects’ on the police database despite being well below the age of criminal responsibility.

How are children being criminalised?

Children are often entirely unaware that they might be committing a criminal offence,3 for example:
• a person under the age of 18 creates and shares sexual imagery of themselves with a peer under the age of 18
• a person under the age of 18 shares sexual imagery created by another person under the age of 18 with a peer under the age of 18 or an adult
• a person under the age of 18 is in possession of sexual imagery created by another person under the age of 18.

The fact that the sender or recipient is also younger than 18 does not affect the legal position. Children are unwittingly potentially committing criminal offences by sharing naked images of themselves and others on phone apps and social media – and even by simply having those images of themselves on their own phone. Often the circumstances in which the sexting takes place highlights the anomalies in the criminal law. Sixteen- and 17-year-olds will be committing an offence if they sext each other, but not if they actually have sexual intercourse.4 Younger children may also experiment with sexting in a developmentally appropriate way as part of normal sexually explorative behaviour.

At the other end of the scale is coercive or non-consensual sexting between children that is linked to cyber bullying and sexual violence. However, the criminalisation of children accused of these offences has also been criticised. The National Institute for Health and Care Excellence (NICE) has produced a report on harmful sexual behaviour among children and young people, highlighting the fact that inappropriate sexualised behaviour, which can include sexting, is often an expression of problems or underlying vulnerabilities.5 Many children’s display of harmful sexual behaviour will naturally come to an end as they mature. Labelling children as sex offenders and subjecting them to stigmatising and intrusive interventions may actually prove counterproductive.

Interpretation

What constitutes ‘indecent’ is an issue for the tribunal of fact to decide. The tribunal must objectively apply recognised standards of decency.6The circumstances and motivation of the taker are not relevant to whether the photograph is indecent.7 A ‘child’ is a person under 18.8 A person is taken to have been a child at any material time ‘if it appears from the evidence as a whole that he was then under the age of 18’.9
‘Make’ means ‘to cause to exist; to produce by action, to bring about’.10 The definition includes:
• downloading an image onto a disc or printing it from a computer10
• opening an attachment to an email or app containing an image11
• downloading an image from a website onto a computer screen12
• accessing a website in which images appeared by way of automatic ‘pop-up’ mechanism.13

The act of making or taking the indecent photograph or pseudo-photograph must be a deliberate and intentional act, done with the knowledge that the image made is, or is likely to be, an indecent photograph or pseudo-photograph of a child. Likewise, for permitting an indecent photograph of a child to be taken, it must be proved that the defendant knew that such a photograph was being taken. A person is to be regarded as distributing an indecent photograph or pseudo-photograph if the person parts with possession of it to, or exposes or offers it for acquisition by, another person.14

The following are defences for the charge of sexting:
• Legitimate reason / lack of awareness: s1(4) PCA 1978 states:
(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove–
(a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or
(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect, them to be indecent.
• Marriage and other relationships: This applies where the accused person and the child whom the image is of are 16 or over and married or living together in an enduring relationship.15
• Criminal investigations: This defence is available where the person ‘making’ an indecent image can prove it was necessary for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings.16

Interpretation

The person must knowingly have custody and control of the images. In cases where the images have been deleted, it will be necessary to show the person knew how to retrieve them. For example, the person was aware deleted images had been cached, or was able to retrieve deleted images.

The College of Policing recognise that in most cases of youth-produced sexual imagery where there are no aggravating features the appropriate response is to avoid a criminal justice outcome so that children will not be stigmatised.17 However the police will still create a crime record of any incident of sexting reported to them, under the Home Office counting rules (HOCR) for recorded crime.18

Schools have discretion as to whether to involve the police once they become aware that pupils have been involved in sexting. In some instances, police forces are encouraging schools to deal with sexting as a disciplinary matter where no aggravating features are present.19 The UK Council for Internet Safety has issued guidance for schools, including when they should report to the police.20

One of the biggest issues raised by sexting is that once a school notifies the police, all reported offences of sexting must be recorded as a crime in line with the HOCR.21 Children may therefore have a sexting allegation indelibly recorded as a criminal offence on the Police National Database (PND).

Children who commit sexting offences may themselves have been the victim of a predatory adult or older person who has coerced them to create indecent images of themselves or others. In these situations, they should be considered a victim rather than a suspect.

Part 2 of the Sexual Offences Act (SOA) 2003 requires those convicted or cautioned of certain sexual offices to notify the police of certain personal details. The police keep this information on the Violent and Sex Offender Register (VISOR) – commonly known as the ‘sex offender register’. When a child is convicted of one of the sexting offences described above, the notification requirements are only triggered if the child receives a sentence of imprisonment of 12 months or more.22 The relevant age is that of the child on the date of the offence.23 The term ‘sentence of imprisonment’ includes detention and training orders (DTOs) and ss90 and 91 Powers of Criminal Courts (Sentencing) Act 2000 on detention.24 In relation to a DTO, ‘term of imprisonment’ has been held to mean the length of the period served in custody.25

A caution or conviction for these offences may result in the child being placed on the automatic barred list, which prevents them from working with children or vulnerable adults – although there is a right to make representations in respect of these offences (‘autobar with representations’).26 If a child is notified that they are being considered for the barred list in respect of a caution or conviction for a sexting offence, they should seek legal advice.

Youth cautions for sexting offences are spent automatically upon administration, youth conditional cautions are spent once the conditions are completed, usually after three months. They will not be disclosed on any basic or standard Disclosure and Barring Service (DBS) check. They will not automatically be disclosed on an enhanced DBS check, although there is discretion by the reviewing chief constable to disclose any information on the Police National Computer (PNC) where it is deemed relevant. Although if this occurs, this may be challengeable in the light of Lord Sumption’s judgment in R (P, G and W) v SSHD [2019] UKSC 3. Convictions for sexting offences will always be disclosed on a standard or enhanced DBS check and are never filtered.

Many incidents of sexting which come to the attention of the police are dealt with informally. It is generally only in serious cases with ‘aggravating features’ that they may issue a youth caution, or charge a child with an offence. The police often take ‘no further action’ (NFA) in respect of the incident. When they do so, they will note an Outcome Code, to indicate the reason for not pursuing the matter further, which may be due to insufficient evidence, or that it is not in the public interest to proceed. There are currently 22 outcome codes. ’Outcome 21’ was introduced over a concern that too many children were being inadvertently criminalised for sexting.27 Outcome 21 is an outcome code launched by the Home Office in 2016 as an option for recording the conclusion of a police investigation. It states: ‘Further investigation, resulting from the crime report, which could provide evidence sufficient to support formal action being taken against the suspect, is not in the public interest – police decision.’ All such crime records – often described as ‘police intelligence’ – are considered for disclosure on enhanced criminal record checks (but not standard checks). The discretion whether to disclose non-conviction information / police intelligence rests with the chief constable managing the process, and they will base this decision on whether they consider the information to be relevant. The purpose of recording certain crimes as Outcome 21 was to indicate to the disclosure officer that it is unlikely to be relevant to disclose such crimes in a criminal records check, although it provides no guarantee that it will not later be disclosed the vast majority of police intelligence is not disclosed on enhanced criminal record checks, and in cases where the disclosure officers do decide to disclose it there is an appeal process.

The National Crime Recording Standard (NCRS) guides police forces on when to record crimes, and the HOCR clarify how to record them. There is nothing in either which says that the police must record anyone’s personal details in the suspect or complainant / victim fields of a crime record for a crime to be recorded and counted. As a result, the details could be recorded elsewhere in the crime record.28 There is an argument that personal details could be excluded from the record altogether, which would therefore prevent future disclosure of the information about that individual.

Where the police have taken no further action and/or recorded Outcome 21, ask for the child’s name to be removed from the ‘suspect’ fields of the crime record. Ensure that in cases where the child is a victim of grooming, or otherwise not culpable, that no crime record is created where they are listed as a suspect of a criminal offence. This can be done by liaising with the police, and if in doubt, making a subject access request to ascertain what has been recorded and how. Be alert to a child who turns 18 during the process, as whilst a youth caution is immediately filtered, a caution administered as an adult (even for an offence committed as a child) will never be filtered and will appear on every standard and enhanced criminal record check for the rest of that person’s life.

When considering the defences listed above, consider whether there might be arguments that could be made in relation to a child offender. If the police are considering prosecuting a child for ‘sexting’, consider making written representations to the police or the Crown Prosecution Service (CPS) that there is a public interest argument against any formal action being taken against their client. There is considerable guidance for police and the CPS to support a different and individualised approach when children commit sexting offences as opposed to adults.

The representations will need to refer to the following guidance:
• ‘Briefing note: Police action in response to youth produced sexual imagery (“sexting”)’, College of Policing, 201629
• ‘Youth out-of-court disposals: Guide for police and youth offending services’, Ministry of Justice and Youth Justice Board, 201330
• ‘Guidance: How to use out-of-court disposals: section 1 case management guidance’, Youth Justice Board, 201931
• ‘Code for Crown Prosecutors’, CPS32
• CPS guidance:
- ‘Youth offenders’33
- ‘Social media – Guidelines on prosecuting cases involving communications sent via social media’34
- ‘Revenge pornography – Guidelines on prosecuting the offence of disclosing private sexual photographs and films’35
- ‘Indecent and prohibited images of children’36
When making representations against the prosecution of children and young people for sexting related offences, consider the following points:
• The criminal justice system treats children and young people differently from adults, and significant weight must be attached to the age of the suspect if they are a child. The best interests and welfare of the child or young person must be considered, including whether a prosecution is likely to have an adverse impact on the child’s future prospects that is disproportionate to the seriousness of the offending. Prosecutors must have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people.37 Prosecutors must also have regard to the obligations arising under the United Nations 1989 Convention on the Rights of the Child.38
• ‘When assessing whether a prosecution is required in the public interest prosecutors must follow the approach set out in these guidelines as well as the wider principles set out in the Code for Crown Prosecutors. One factor that may warrant particular consideration is the involvement of younger or immature perpetrators. Children may not appreciate the potential harm and seriousness of their [social media] communications and as such the age and maturity of suspects should be given significant weight, particularly if they are under the age of 18.’39
• ‘It is essential in all youth offender cases to ensure that all of the public interest matters which give rise to the decision [to prosecute] are clearly identified, considered and balanced. A note of the factors identified but rejected or outweighed by other considerations should be made. This demonstrates that the decision to prosecute was taken only after a full review of the case and the background information, including that concerning the suspect provided by the youth offending service, police or local authority. Failure to show that the legal guidance has been followed and properly applied to all the information on the case may result in the decision to prosecute being quashed. See R (on the application of E,S and R v DPP [2011] EWHC 1465 (Admin).’40

Should the police or CPS review maintain the decision to caution, the only potential remedy is judicial review. A caution can only be administered where the defendant admits the offence, and consideration should be given to the defences outlined above. Where the decision is to charge with an offence and no defence is available, then there may be arguments if the CPS policy has not been followed to pursue either a judicial review of that decision, or argue an abuse of process under the second limb, that it would be unfair to try the defendant.41

General

• ‘Now I know it was wrong: report of the parliamentary inquiry into support and sanctions for childrenwho display harmful sexual behaviour’, Barnardos, 2016
• ‘Sharing nudes and semi-nudes: how to respond to an incident (overview)’, Department for Digital, Culture, Media and Sport and UK Council for Internet Safety, December 202043
• ‘Harmful sexual behaviour among children and young people’, NICE, 201642
• G Hales, ‘A “sexting” surge or a conceptual muddle? The challenges of analogue law and ambiguous crime recording’, The Police Foundation, 201843
• ‘Police recorded crime and outcomes: open data tables user guide’, Home Office, October 201644
• ‘Child Centred Policing: When to call the police – guidance for schools & colleges’, NPCC45
• ‘Keeping children safe in education’, Department for Education, September 202246
• ‘Working together to safeguard children: A guide to inter-agency working to safeguard and promote the welfare of children’, Department for Education, July 201847

Sentencing

• ‘Sentencing children and young people: overarching principles’, Sentencing Council, 201748
• ‘Sexual offences – Sentencing children and young people’, Sentencing Council, 201749
• ‘Sentencing children and young people: overarching principles and offence specific guidelines for sexual offences and robbery – definitive guideline’, Sentencing Council, 201750