Making vs Possessing — A Critical Distinction
The most important technical issue is the distinction between making and possessing an indecent image. A person makes an image whenever they cause it to exist on their device — including by opening an email attachment, downloading a file, or accessing a webpage on which an image appears. Making carries a maximum sentence of ten years' imprisonment, double the five-year maximum for simple possession. The prosecution does not need to prove the defendant was the original creator. A defence may arise where images were cached automatically by a browser without the user's knowledge, where material was received unsolicited in a group messaging application, or where the defendant did not know what the files contained.
The Categorisation System
The CPS uses a three-category system to assess the severity of material, which directly affects sentencing. Category A — the most serious — covers penetrative sexual activity, sadism, or bestiality involving a child. Category B covers non-penetrative sexual activity. Category C covers sexually suggestive or erotic poses. Police categorisation is not conclusive. Independent digital forensic experts can review the same images and reach a different assessment. Where images have been placed in a higher category than is warranted, challenging the categorisation can be the difference between a custodial and a non-custodial sentence.
| Category | Description | Max — Making | Max — Possession |
|---|---|---|---|
| A (Most Serious) | Penetrative activity / sadism / bestiality | 10 years | 5 years |
| B | Non-penetrative sexual activity | 10 years | 5 years |
| C | Sexually suggestive or erotic poses | 10 years | 5 years |
Pseudo-photographs and AI-Generated Images
The Protection of Children Act 1978 treats pseudo-photographs — including computer-generated and AI-produced images of children — in the same way as real photographs. An image that appears to show a child in an indecent context is caught by the legislation regardless of whether it depicts a real child. Generating such images using prompts or digital tools constitutes making an indecent image, even where no real child was involved in its creation.
The Forensic Approach to Defence
Investigations involving indecent images are highly technical, and the conclusions reached by police digital forensic examiners are not the final word. Independent examination can establish whether images appeared on a device without any deliberate act by the user — through browser cache or automatic downloads. Metadata analysis can reveal when images were accessed, for how long, and in what context. File provenance examination can establish whether files arrived via unsolicited group messages rather than deliberate searches. Categorisation review can assess whether images have been correctly assessed for severity.
What to Do if You Are Under Investigation
If you have been arrested or had devices seized in connection with an indecent images investigation, seek specialist legal advice immediately. Do not speak to investigators without a solicitor present. The period during which devices are being examined — which can last several months — is an important window for engaging with the investigation and preparing the defence.