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12 Dec 2016

Danielle Reece-Greenhalgh’s article on youth “sexting” published in Criminal Law & Justice Weekly

Youth sexting: updated position on self-taken indecent images and social media

In September 2015, police discretion in cases of teenage “sexting” investigations came into focus following the decision of a school to investigate a male student after discovering he had sent naked self-taken images via Snapchat to other students. The personal details of those involved were recorded in an incident log on the police intelligence database. Future employers, therefore, could potentially become aware of the investigation into alleged sexual offences, with no recourse available to those involved and no police discretion to delete.

According to the NSPCC 1 in 7 young people have taken a semi-naked or naked picture of themselves using electronic devices. Over half then shared the image with someone else, usually with someone they knew. The report came amid reassurances that CPS guidance to prosecutors was under review with the anticipation of more certainty in how these cases are dealt with. The only clarity to date was a non-binding College of Policing document, which advised that sexting was part of a natural propensity for young people to “take risks and experiment with their developing sexuality” and that criminalisation was potentially harmful.

The new CPS guidance, published on 10 October, addresses the issue as follows:

 “…care should be taken when considering any cases of “sexting” that involve images taken of persons under 18. […] Whilst it would not usually be in the public interest to prosecute the consensual sharing of an image between two children of a similar age in a relationship, a prosecution may be appropriate in other scenarios, such as those involving exploitation, grooming or bullying.”

The term “care” is undefined, a deliberate vagueness in order to reserve the CPS position in cases where child protection concerns are raised. “Sexting” is defined as covering “a broad range of activities, from the consensual sharing of an image between two children of a similar age in a relationship to instances of children being exploited, groomed, and bullied into sharing images.”

Although it states that prosecuting consenting teenagers is not generally in the public interest, the Guidelines also make clear this is not so where there is evidence of exploitation, grooming or bullying, or conduct “causing or inciting” another party to engage in sexual activity or pornography. The evidential threshold for the latter offences is low; the prosecution need only show that the suspect contemplated or desired a particular action to take place (i.e. the sending of an image) and that it was done on his/her express or implied authority or as a result of exercising control or influence over the other person. Persuasive or persistent message requests for nude selfies from one teenager to another could meet that threshold, even in the context of a consensual relationship.

The updated College of Policing note (24 November) outlines in better detail the criminal justice response, urging police to take a common sense approach and instructing forces to “consider the long-term impact of investigation and prosecution, such as labelling a child a ‘sex offender’ and potential disclosure as part of a Disclosure and Barring Service (DBS) process.” Seizing devices where the sending of images has been consensual is discouraged, and support should exist for all youth parties concerned.

In cases without evidence of “exploitation, grooming, profit motive, malicious intent or persistent behaviour”, the most appropriate outcome is to take no action. In order to address the concern of a future DBS disclosure, police should issue the following advice to youths and guardians:

“In the event that a future ‘Enhanced [DBS] check is required it is unlikely that this record will be disclosed unless you/your child are investigated or have further action taken against you/them in the future which could suggest a relevant pattern of behaviour.”

It is hoped that the expanded policing guidelines will ensure that a reasoned and rational approach is taken at the earliest stages of an investigation, and thus affect CPS considerations at the charging stage. It is, however, disappointing that nothing seems to have changed within the CPS itself.

This article was originally published in Criminal Law & Justice Weekly, and can be found here, behind a paywall.

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