Indecent Images Defences
‘Lack of awareness’ is a defence to charges of possession of indecent images under section 160 of the Criminal Justice Act 1988 and distribution or showing indecent images under sections 1(b) and (c) of the Protection of Children Act 1978.
The defence is made out if the defendant proves that he had not himself seen the photographs or images in question and did not know nor have any cause to suspect them to be indecent. This is a legal burden (R v Collier [2005] 1 Cr. App. R. 9).
The defence applies if an absence of knowledge and a cause to suspect is proved in respect of either the indecency of a photograph or the fact its subject matter is a child (Collier).
This is perhaps not as the defence would be read literally. In Collier the defendant knew he was in possession of a CD containing indecent material featuring adults. He did not know nor had cause to suspect that there were “trailers” at the end of the CD advertising other products which included indecent images of children. The Court of Appeal held that his lack of awareness in respect of the inclusion of children on the CD enabled him to rely on the statutory defence despite the fact he knew due it was indecent.
This defence will be unusual in relation to online allegations (that are more commonly charged with ‘making’ indecent images rather than ‘possession’); however in relation to DVDs, magazines and the like the defence could still be available and should be always be considered.
If you feel that this may apply to your situation, please feel free to call us immediately for preliminary free and confidential advice.