Being investigated or arrested for possession or distribution of indecent images can be one of the most distressing experiences a person can face. One of the first questions we are asked is: “Will my case go to court?” The answer depends on a number of factors, including the strength of the evidence, the category of the images, and whether the Crown Prosecution Service (CPS) considers prosecution to be in the public interest.
Police Investigation Stage
Following arrest or voluntary interview, the police will often seize computers, phones, tablets and other devices for forensic examination. When their investigation concludes, the police submit a file to the CPS, who decides whether formal charges should be brought.
How the CPS Makes Its Decision – The Code for Crown Prosecutors
The CPS applies a **two-stage test** from the Code for Crown Prosecutors in deciding whether to charge someone in an indecent image case.
1. Evidential Stage
The CPS must first determine whether there is a realistic prospect of conviction. In such cases, that typically depends on whether investigators can:
- Recover illegal images (Category A, B or C) from a device
- Link that device to the suspect through usernames, logins, location data or admissions
- Show that the suspect had knowledge and control over the content
If forensic evidence clearly ties the images to the suspect’s device, the evidential stage is usually satisfied. However, legal challenges around attribution, method of download, or intent can prevent charges.
2. Public Interest Stage
Even if evidence is strong enough, the CPS must consider if prosecution is required in the public interest. Relevant factors include:
- The number and category of images
- Evidence of sharing or encouraging wrongdoing
- Prior convictions or repeat offending
- Breach of trust (e.g. involving vulnerable individuals)
- Remorse, mental health, or active rehabilitation
- Whether a Conditional Caution is more suitable than prosecution
In lower-level Category C cases involving first-time offenders who show genuine willingness to engage with support, prosecution may be avoided in favour of a Conditional Caution.
When Are You Likely to Go to Court?
Your case is more likely to proceed to court if:
- Images are Category A or B
- There is evidence of distribution or large volumes of material
- You have a relevant criminal history
If charged, proceedings will start in the Magistrates’ Court. More serious or complex cases may then be moved to the Crown Court.
Out-of-Court Disposals
Where the evidence is sufficient to charge, the only realistic non-court outcome is a Conditional Caution. This avoids court but carries mandatory requirements—typically including rehabilitation.
Conditions may include:
- Engagement in a rehabilitation programme (e.g. via the Lucy Faithfull Foundation)
- Attendance on non-offending behaviour or psychological support courses
- Restrictions on internet use or monitoring agreements
Standalone diversion schemes are not offered without formal sanction. Rehabilitation may play a role in mitigation but is only available when attached to a Conditional Caution—typically for first-time, low-level cases involving remorse.
Why Early Legal Advice Matters
At McMillans Solicitors, we specialise in defending allegations involving indecent images. Early legal intervention allows us to:
- Engage with the police and CPS to advocate for a Conditional Caution
- Make strong legal representations to avoid disproportionate charges
- Defend your rights from the outset of the investigation
If you’re under investigation or facing charges, early legal advice can make all the difference.