Being investigated or charged with possession of indecent images of children is an extremely serious matter. One of the most common questions we are asked is whether a prison sentence is inevitable. The answer depends on a number of factors — including the category of images involved, any previous convictions, and the wider circumstances of the case.
Possession of Indecent Images: The Law
Possession of indecent images is an offence under Section 160 of the Criminal Justice Act 1988. The offence covers knowingly possessing or having control of indecent photographs or pseudo-photographs of children, including digital images stored on computers or mobile devices.
The images are classified into three categories based on severity:
- Category A: The most serious — includes penetrative sexual activity, sadism, or bestiality.
- Category B: Non-penetrative sexual activity.
- Category C: Other indecent images not falling into A or B.
Can You Go to Prison?
Yes — a prison sentence is a possible outcome. However, custody is not mandatory, even in Category A cases. Sentencing decisions are made in line with the Sentencing Council Guidelines and depend on the specific details of the offence and the offender’s personal circumstances.
Starting Points for Possession Offences:
| Image Category | Starting Point | Sentencing Range |
|---|---|---|
| Category A | 1 year custody | 26 weeks to 3 years custody |
| Category B | 26 weeks custody | High-level community order to 18 months custody |
| Category C | High-level community order | Medium-level community order to 26 weeks custody |
Suspended sentences are frequently imposed where the court considers that rehabilitation is likely, or where there is strong personal mitigation. The court must also consider whether immediate custody would cause significant harm to others (e.g. dependent children).
What Factors Affect Sentencing?
- Volume and category of images involved
- Whether images were deleted or concealed
- Use of encryption or evidence of attempts to avoid detection
- Previous convictions or similar behaviour
- Early guilty plea and cooperation with police
- Engagement in rehabilitation or therapy
Use of peer-to-peer or file sharing software is not considered a mitigating factor. In fact, deliberate use of these tools is often seen as a sign of awareness and intention, and courts will take this seriously.
Sex Offenders Register
Any conviction for possession of indecent images will result in being placed on the Sex Offenders Register. The length of time you remain on the register depends on the sentence imposed:
- Custodial sentence (or suspended) over 30 months: Indefinite registration
- Custodial sentence (or suspended) over 6 months and up to 30 months: 10 years
- Custodial sentence (or suspended) of 6 months or less: 7 years
Sexual Harm Prevention Orders (SHPOs)
Where an individual is sentenced for an indecent image offence, the court may also impose a Sexual Harm Prevention Order. These orders are part of the criminal case and breaching them is a criminal offence. However, in most cases involving possession or distribution, SHPOs are typically limited to restrictions on internet and device use. Unless there is additional evidence of grooming, communication with children, or progression to contact offences, SHPOs do not generally prevent individuals from seeing their own children or having contact with minors.
Need Confidential Legal Advice?
If you are under investigation or have been charged with an indecent image offence, it is crucial to get expert legal advice as early as possible. At McMillans Solicitors, we specialise in defending individuals facing these complex and sensitive allegations.
Contact us today for confidential support and advice.
Frequently Asked Questions
Can I argue the images were downloaded accidentally?
The law states that “making” indecent images must involve a deliberate and intentional act. It must be done with knowledge that what you were doing was likely to result in the creation or download of such files. That means simply opening an image without realising what it is would not usually meet the threshold. However, these arguments are always examined during the early stages of the investigation, and cases with credible doubt may not proceed.
Will I definitely go to prison for Category A images?
While custody is common for Category A cases, it is not inevitable. The court may impose a suspended sentence if there is strong personal mitigation, a realistic prospect of rehabilitation, or other significant factors.
Does being on the Sex Offenders Register stop me seeing my own children?
Not automatically. A Sexual Harm Prevention Order (SHPO) may be imposed alongside sentence, but these typically focus on internet use and device restrictions. Only in cases involving contact offences, grooming, or online communication with minors will SHPOs restrict direct contact with children. Most possession-only cases do not result in such terms unless there’s evidence of wider risk.