Is sending indecent images a malicious communication or a sexual offence?

22 January 2020

Not reviewed after the date of publication

Question:

A twelve year old child receives unwanted indecent images on their mobile phone from an adult offender. Is this a malicious communication offence or a sexual offence?

Answer: 

Prosecutorial guidance issued by the CPS makes it clear that when a form of communication has been used to facilitate what would normally be a substantive offence, prosecutors should pursue the relevant substantive offence, rather than the communications offence. The reasoning behind this is likely to be the fact that communications offences do not attract a sex offender registration, unlike those offences under the Sexual Offences Act 2003.

Dependent on the exact circumstances of the offending, it is our view that the following offences will be most relevance in the circumstances:

Section 12 of the Sexual Offences Act 2003 – causing a child to watch a sexual act. This offence covers circumstances where a person aged 18 or over, causes a child to look at an image of a person engaging in sexual activity

Section 15A Sexual Offences Act 2003 – sexual communication with a child. This offence appears to apply more to written sexual communications, however may still apply depending on the exact specifics of the case. MOJ Circular 2017/01 provides further information on the application of this offence.

These offences also carry higher sentences than those imposed in relation to malicious communications offences. As the offences are either way, the exact sentence will depend on a consideration of factors, including the specific nature of the act demonstrated, the impact the incident had on the child and also the specific age of the child. In this case, the fact the child is twelve may be deemed a particularly relevant factor.

A link to the relevant CPS guidance can be accessed below:

https://www.cps.gov.uk/legal-guidance/social-media-guidelines-prosecuting-cases-involving-communications-sent-social-media

We have assumed that the indecent images sent are of the adult (or an adult). However, if the adult is sending indecent images of a child/children to the twelve year old, you could also consider the offences under:

Section 1 of the Protection of Children Act 1978 – taking / making / distributing etc. indecent photographs of children.

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