Indecent Images of Children – Indicative or Not?

The term “Indicative” appears to be gaining prevalence in prosecution SFRs and Statements in relation to digital evidence – but what exactly does that mean for your cases?

Indicative:  “Serving as a sign or indication of something”

Indication:  “Point out; show”

What is indecent?

Whether or not an image is indecent (or whether an unidentified subject is under the age of 18) is a matter of judgement. Whilst an examiner should make every attempt at objectivity, there is no direct guidance as to what may be considered indecent other than “in accordance with recognised standards of propriety”, which introduces a level of individual interpretation of such standards in the assessment of images.  The ultimate determination of the nature of the image rests with the Court. The assessment of such images by an examiner, retained either by the prosecution or the defence, may therefore be confirmed or rejected by a higher authority.

Categorisation of images

The Sentencing Council provide guidelines to the categorisation of images identified as potential Indecent Images of Children, these being at categories A – C, with ‘A’ being the most serious. These are the categories, and the only categories, defined by the Council and were published in 2014.

The current categories were derived from the 5-point Sentencing Advisory Panel scale, dating from 2002, which itself drew upon levels 4 – 10 of the earlier therapeutic COPINE scale, levels 1 – 3 of the COPINE scale being outside the scope of the legislation.

Level 1 (the lowest level) of the COPINE scale was named “Indicative” and read “Non-erotic and non-sexualised pictures showing children in their underwear, swimming costumes from either commercial sources or family albums. Pictures of children playing in normal settings, in which the context or organisation of pictures by the collector indicates inappropriateness” (author’s emphasis).

As highlighted earlier, the term “Indicative” appears to be gaining prevalence in prosecution SFRs (Streamlined Forensic Reports) and Statements and, in many cases, the authors appear to be unaware of, or to ignore, the matter of “context or organisation”.

'Indicative' and context

In recent casework, examples of images presented as “indicative” have included “bath time” photographs of the client’s own children as babies/toddlers amongst hundreds of other family photographs, single pictures of children in swimsuits automatically downloaded when online shopping sites had been accessed, and similar images from the unallocated disk area, for which no provenance could be ascertained. In none of the cases referred to were those images present in any significant quantity and in each case the computer was a multi-user family computer.

What is presented, however, is a seemingly authoritative statement that “indicative” images were present, often with no clarification as to what is supposed to be “pointed out or shown”. Some reports go further and use terms such as “indicative of a sexual interest in children”, or even, in at least one case, “indicative of paedophile tendencies”. It is contended that the only persons qualified to make the latter statements would be experts in clinical or forensic psychology.

In a recent case, in which no unlawful images were located, “indicative images” were referred to as supporting evidence regarding another offence. Having seen the images, I queried their assessment with the prosecution examiner who informed me that they had been identified by automatic classification software. This would raise the question – how could such software in any way identify contextual issues?

'Indicative' bias

It may be queried why the (mis)use of a simple word may be considered so important: A forensic examiner who uses this term may influence the investigating officer, prosecutors, the defence, and potentially the Court. This tendency is exacerbated by the misuse of Streamlined Forensic Reports which, rather than being used as an investigative starting point, are being presented “as is” to the Court. In many cases the quantity of images considered by the examiner to be “indicative” may markedly outweigh those alleged to be unlawful.  It is suggested that this assertion could skew the mindset of some or all the parties to the case and unduly disadvantage the client in cases in which there is very real and reasonable doubt as to the nature of the images charged, or in relation to matters of intent.

There are, of course, occasions on which users are found to be in possession of curated collections of inappropriate, though not unlawful, images in which reference to those images may be appropriate in support of the prosecution case. In such cases, the nature of that evidence should be clearly stated and not merely be represented by a number in a table.

During an examination, if so instructed, Keith Borer Consultants' digital evidence experts can assess the nature, location and history of “indicative” images along with charged images and comment upon whether such an assertion can be justified, potentially altering the balance of the prosecution case.  You can contact us by email or telephone.