The ability to communicate digitally using smart phones, laptops and other digital devices is an essential part of modern life. Email, text messaging and the many and various social media and messaging apps are so integrated into our day-to-day lives that it is so hard to imagine life without them.

But these technologies carry risks, especially for children and young people.

One risk relates to the criminal law. There are many ways in which digital and online technology users can fall foul of the law. In many cases the individuals concerned may be ignorant of the fact that laws in this area exist at all. Children are especially vulnerable in this regard.

Changing technologies (and our evolving use of them) means successfully representing individuals caught up in these matters requires specialist knowledge: not only of the relevant criminal law, but also of the technologies involved – and especially the ways in which the evidence contained in them can be used.

Hickman & Rose is a leading law firm operating in this area. Below we summarise some of the issues our expert criminal defence lawyers commonly deal with, together with the steps anyone caught up in these matters might consider.

Sexting

Sexting is the act of sending or receiving sexually explicit messages, images or videos primarily using a mobile phone. It includes being partly or completely naked in a photograph, posing in a sexual position, talking about sexual things that you want to do, sending ‘nudes’ or doing sexual things on a live stream.

Although many alleged sexting incidents will involve consensual sharing, it is remarkably easy for this activity to slip into the criminal realm with coercive and exploitative behaviour, especially if anyone involved is a child.

Under both the Protection of Children Act 1978 and the Criminal Justice Act 1988 it is an offence to:

Send a naked ‘selfie’ if you are under 18.
Send or forward indecent images of someone who is under 18.

Thus, if someone is aged under 18 and sends a naked photograph of themselves to anyone, they can be charged with an offence of distributing an indecent image of a child. It is also illegal to send or forward indecent images of someone else who is under 18.

The strict nature of this law means it is possible for a young person (who may be older than the age of sexual consent) to be criminalised for consensually sharing an intimate image of themselves with their sexual partner. The fact that they are over 16, which is the age of sexual consent, s irrelevant in these circumstances.

Nor is ignorance of the depicted person’s age a defence. It is possible for someone (for example a member of a social media messaging group) to commit a crime by forwarding to their friend group an indecent image of a someone whom they are unaware is aged under 18.

Children and young people who are sexting can face criminal prosecution for such behaviour.

The key message for teenagers and their parents is that sexting can have serious consequences. Defending these matters often involves navigating complex – and shifting – personal relationships.

Voyeurism

Voyeurism is the act of recording another person doing a private act for the purposes of obtaining sexual gratification whilst knowing that the other person does not consent to being observed.

Voyeurism is an offence contrary to section 67 of the Sexual Offences Act 2003 and the Voyeurism Offences Act 2019.

To qualify as a crime, the observed act in question need not be sexual in nature. It can be an innocuous and everyday activity. It may still be a breach of the law to observe this activity if the purpose of doing so is for sexual gratification.

The crime of voyeurism is increasingly relevant in the era of social media applications which make it easy to take, view and share photographs and videos: many younger people think nothing of recording what they see and do, then uploading this material to social media.

One can imagine how the members of a social media messaging group may unwittingly breach the law on voyeurism. A group of school friends may share on Snapchat a film of a classmate being humiliated; members of a WhatsApp group sharing surreptitiously filmed pornographic images.

In cases such as these, merely having the images on a phone – let alone sharing them with others – may constitute a breach of the law.

Successfully defending voyeurism cases often turns on whether the observed activity takes place in a place where privacy can be reasonably expected. Determining this can depend on context.

Defending these cases often involves carefully determining the place in which the offence allegedly occurred and the purpose of the observation or recording. An important factor in these cases is often whether the observed activity took place in a place where privacy might reasonably be expected.

It is often crucial to determine the context in which the act took place and was observed, and also the nature of the ‘sexual motivation’ involved. Alleged incidents of voyeurism can often turn out to be isolated incidents or ‘practical jokes’ amongst young people.

Indecent images

It is an offence under the Protection of Children Act 1978 and Criminal Justice Act 1988 to take, make, distribute or advertise indecent images of children. In practice, the law is used most frequently to target those producing, watching or sharing child pornography.

The nature of modern communications technology means that for some people it is easy to fall foul of this law without realising it.

While the term ‘make’ in the law suggests creation of an image this has been widely interpreted by the courts (and indeed is most often used) to describe downloading an image or opening an attachment containing such an image

This means that a suspect may be determined to have “made” an indecent image by, for example, clicking on an image that was sent to them over email, or on a messaging app such as WhatsApp.

The creation of extreme pornography, obscene publications and prohibited images are offences in their own right. Extreme pornography can be defined as explicit material that is grossly offensive, disgusting or of an obscene nature. The dissemination of such material can occur in numerous ways including in chat rooms, social networking websites, and using online gaming devices.

Online offences at school and university

The online world plays a significant role in the lives of children and young people. Usage of online gaming, messaging platforms and social media comes with risks.

Schools and universities are taking allegations of misconduct committed by students increasingly seriously. These cases often relate to the way in which students use communication technologies such as smart phones.

In many cases, an educational establishment will conduct its own investigation into an allegation. This investigation may – or may not – be conducted with proper rigour and fairness.

It can be the case that an accused student is suspended from their academic institution while the investigation takes place: a move which can have devastating personal and academic consequences.

It can be a mistake for anyone involved in these matters to treat the school / university’s investigation as separate from that of the police. Information given to one can very easily be provided to the other. In this way, an issue which is initially perceived as a relatively minor disciplinary matter may end up being referred to the police for criminal investigation.

Anyone facing the prospect of disciplinary action by a school or university for a serious misconduct matter related to the issues above is advised to seek expert criminal law advice.

Cyberstalking and online harassment

Cyberstalking involves threatening behaviour or unwanted advances directed at another using forms of online communication. This can often include threatening or sending obscene emails or text messages, spamming, live chat harassment, leaving improper messages on online forums, trolling, or sending electronic viruses amongst other things.

The law which prohibits cyberstalking is contained within section 2A of the Protection from Harassment Act 1997. The legislation was designed to protect individuals against the ‘traditional’ forms of stalking but is also used in connection with online offending.

There is no specific legal definition of stalking. However, the police and Crown Prosecution Service have described it as “a pattern of unwanted, fixated and obsessive behaviour which is intrusive”.

How our expert lawyers can help

Anyone who is, or suspects they will be, investigated by the police in relation to an online or digital offence like the above is advised to contact a criminal lawyer as soon as possible.

Hickman & Rose’s criminal defence team have an outstanding reputation for providing strategic, practical, and robust legal advice to individuals caught up in these allegations.

The firm’s expert solicitors have years of experience in handling complex digital evidential matrices and guiding suspects through what would otherwise be a bewildering and worrying process of a police investigation.

They are especially experienced in helping young people (and their parents) navigate the complex interaction between criminal law and disciplinary codes at school and university.

As well as acting for accused individuals, the team offers advice and guidance to potential complainants and witnesses often in relation to reporting an allegation to the police,or providing a witness statement.