Despite considerable efforts by tech companies, lawmakers, and police to stop them, child sex abuse images and videos are unfortunately very common online.
During the COVID-19 pandemic lockdowns, there was a surge in the prevalence of online crime, and particularly online crime relating to child sexual abuse.
PCD Solicitors works daily with the country’s leading experts on cases concerning alleged sexual crimes taking place online. Here, we explain offences alleged to have taken place through use of the dark web, and how these offences are investigated.
What is the dark web?
Indecent material is mainly distributed and viewed on an anonymous part of the internet called the ‘dark web’, where offenders can trade images believing there is little to no risk of prosecution.
There is more than one platform offering anonymous internet browsing – a few examples being I2P (Invisible Internet Project), Freenet, and Tor (The Onion Router).
Tor is the largest by a considerable amount and presents the biggest problem for the police. This network uses ‘open-source’ code, which is designed to be publicly accessible – so anyone can see, modify, and distribute the code as they see fit.
This type of setup grants users total anonymity by encrypting their IP address, and allows them to escape tracking by internet service providers.
It is not illegal to use such software to access the dark web in itself, as many people prefer the security of anonymity online for personal protection.
However, many people also use the dark web for criminal purposes – and anyone intent on hiding their identity by amending code may also be able to imitate another person’s identity for their own nefarious ends.
For example, if a person experienced in accessing and distributing indecent images of children on the dark web copied your identity, used your IP address, and gained access to your computer, any police investigation would find that you were the person committing the offence.
When the anonymity of open source code is combined with cryptocurrency, such as Bitcoin – which allows users to purchase child pornography with arguably untraceable currency – it makes tracking such offenders almost impossible.
Unfortunately, this means that the police may be inclined to go for the ‘easy target’ – and if your details show up as the person accessing indecent images on the dark web, then the police will regard you as the guilty party.
How can the police recover illegal material?
Illegal activities on the dark web are tracked by specialist law enforcement agencies like CEOP (Child Exploitation and Online Protection Command), which covertly investigate reports as part of the National Crime Agency.
When suspects are identified, the information will be passed on to the appropriate police force, who will either contact the suspected offender or directly arrest them, depending on the severity of the offence they have allegedly committed.
Evidence can be recovered digitally by the police, both from the internal storage of a computer and in the cloud network. Ever-advancing ‘digital forensic’ technology allows the police to recover files and identify offenders who have engaged with illegal material online, even if they took measures to obscure their identity or the material has since been deleted from their device.
However, as noted above, anyone who has fraudulently accessed your computer will not be too concerned about leaving traces of your details for the police to find.
Electronic devices such as mobile phones, tablets, and computers store vast amounts of information. Forensic examination by the police can give clues as to what the device has been used for, and what the user has searched for on the internet.
Even though the file may no longer be in the user’s possession, there could still be an offence committed if evidence indicates that the file was downloaded onto the device. The police may also be able to recover a file the user believed was permanently deleted.
It is important to note that some information may be stored without the user’s knowledge, in effect where the user’s identity has been cloned.
It is imperative that you seek legal advice whilst awaiting the outcome of a forensic investigation into your electronic devices. The wait for forensic results can be long and painful, as there is currently a large backlog of cases from the rise in cyber-crime during the pandemic.
The law and defences for indecent images
Under Section 1(1) of the Protection of Children Act (1978), an offence is committed if a person deliberately or knowingly takes, makes, permits to be taken, distributes, or shows indecent photographs (or pseudo-photographs created by computer or other graphic methods) of a child.
It is therefore a criminal offence to possess indecent images or pseudo-images in order to distribute or show them, or publish any advertisement for indecent photographs of children. The maximum sentence for distribution is 10 years in prison.
Section 160(1) of the Criminal Justice Act (1988) covers the offence of possession of an indecent photograph of a child. The maximum sentence is 5 years in prison.
In addition to any prison sentence, the court will also impose ancillary orders, such as the requirement to sign the Sex Offenders’ Register upon release from prison.
The court can also enforce Sexual Harm Prevention Orders (SHPOs), which ban the offender from engaging in regulated activity with children.
Defences for indecent image charges
As noted from the legislation quoted above, the PCA (1978) refers to a deliberate act or knowledge (relating to the taking or distributing of indecent images). The police will, of course, believe that your actions were deliberate and you had knowledge of the indecent material, immediately concluding that you are guilty.
Therefore, it is important that your solicitor looks for evidence to establish that you did not act deliberately or with knowledge.
Section 1(4) of the PCA (1978) provides two defences to the Section 1(1) offence. Firstly, where the defendant had a legitimate reason for distributing, showing, or possessing the photographs; and secondly, where they had not seen the photographs themselves, and did not know or have any cause to suspect they were indecent.
A ‘legitimate reason’ might include the use of images for the purposes of professional training and in the course of genuine research. If you have been accused of an offence but we can prove that you were undertaking genuine research, with no alternative but to have this sort of material on your device – as opposed to a person with an unhealthy interest in the possession of indecent photographs – then the defence will be established and you should not be convicted.
Even if the police can establish that you deliberately and knowingly had images on your computer, you would not be convicted if you were completing genuine research.
Similarly, if you acted innocently and have files on your device which digital forensics can show have not been viewed by you, and you had no reason to suspect were indecent photographs of children, then you should not be convicted.
There are also defences available under the CJA (1988). Section 160(2) provides three possible defences to the possession of an indecent photograph of a child. The first two defences are the same as those provided for the PCA (1978) offence above.
The third defence requires the defendant to prove that the photograph was unsolicited – sent to them without any prior request made by them or on their behalf – and that they did not keep it for an unreasonable time. What constitutes an ‘unreasonable time’ is a question for the jury.
Avoiding prosecution for indecent images
The defences above are particularly important if you are charged with a relevant offence. However, it is vital that your solicitor considers any and all defences available to you during the police investigation stage – before you are charged.
This is because the police will usually refer your case to the Crown Prosecution Service (CPS) for a review prior to any decision about charges being made. The CPS will then review the evidence against you, as presented by the police, and make a decision as to whether you should be charged.
At PCD Solicitors, we are often involved in this process, whereby we can make representations to the police and the CPS to try and avoid a prosecution.
For example, in previous cases we have been able to convince the police and/or CPS to drop cases for the following reasons:
- Our client did not deliberately or knowingly have images on his computer
- Our client had a legitimate reason for accessing the indecent images
- Our client had not seen the images
- Our client did not know, or have any cause to suspect, the images were indecent
- Our client was undertaking genuine research, with no alternative but to have this material on his device
- Our client was in possession of indecent images, but they were not requested by him and were not kept by him
These are the defences that could be raised if you are charged with an offence and have to attend court. However, they can also be raised prior to being charged, with a view to convincing the CPS not to charge you.
This does mean, however, that you need to instruct solicitors at an early stage – ideally, as soon as possible – so that we have time to review your case thoroughly and liaise with the police and CPS.
For further information on how evidence can be challenged in such cases, please see our ‘Digital Forensics FAQs’ article.
PCD Solicitors are here to help you
Most cases involving indecent images will involve the forensic examination of your devices by a forensic expert working for, or instructed by, the police. It can greatly assist your case if you seek legal advice before the outcome of a forensic investigation.
The fact that the police have raided your home and seized electronic equipment, or have requested your attendance at the police station, means they already have information and/or evidence that you have committed an offence. This information likely relates to search terms or images identified by your Internet Service Provider and connected to your internet protocol address. Unless you take action early, you are more likely to be charged.
Here at PCD Solicitors, we are experts in defending sexual allegations – we can advise you of the likely outcome of a case and liaise with the police and CPS to try to prevent the case from proceeding to court in the first instance.
During the investigation stage, we can instruct our own digital forensic experts to assist with your case and challenge the findings from the police. We can also start to build your defence in case the police do refer your case to court.
If you are currently facing the difficult situation of being under investigation by the police for an alleged child sexual offence, do not hesitate to contact one of our specialist solicitors for a free and confidential phone consultation.
Most of our work can be completed for a low fixed fee, meaning you can be assured of the total cost of our legal advice at the outset.