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03 Sep 2015

The Trouble with Sexting

A story published today across the media highlights the growing problem of teenagers engaging in “sexting” and the potential for significant ramifications on their lives and careers. In the present case, a mother of a 14 year old boy has spoken out, with the support of the Criminal Bar Association, after her son (A) was questioned by police in connection with a naked image sent via Snapchat to a girl (B) from his school. As users of Snapchat will be aware, images sent will usually be deleted after 10 seconds of the recipient viewing them. However, in this instance the image was not only saved by B, but also shared with other members of their school. Had A and B both been over 18, this act would have rendered A simply as the victim of the new revenge pornography legislation which was reported on by this firm in April of this year. However, as a 14 year old he instead found himself under suspicion of the creation and distribution of indecent images of children.

Unsurprisingly, neither A nor B have been arrested or charged. The intention of the provisions of the Sexual Offences Act 2003 is not to criminalise teenage impropriety or foolishness, and this is a position which should be well known to police through the guidance of the Association of Chief Police Officers (ACPO) on Young People Who Post Self-Taken Indecent Images. That guidance acknowledges the common sense position that teenagers are prone to “taking risks and pushing boundaries as they become more sexually and socially aware.” ACPO warns of the dangers of sexting or making self-taken images available to others on the internet, including the possibilities of those images finding their way onto paedophile chat sites or forums.

Despite the lack of formal police action which will doubtless come as a relief to the parties involved, the details of A and B, and the fact of the investigation itself is now held on the police intelligence database (“PND”) for 10 years. The consequences of that should not be overlooked. Let us presume that A or B go on to pursue further education after their upcoming GCSEs and begin the process of choosing the career which will define their lives after school. Perhaps they wish to become teachers, or lawyers, or doctors and nurses. Or maybe they would like to have a summer job after turning 16 as a registered babysitter or lifeguard. Those options will now be affected by the existence of this information stored by the police.

An enhanced DBS check may tell future employers that A was once investigated for the making and distribution of indecent images on children. The narrative attached to that inflammatory piece of history is entirely at the discretion of the police. One can only hope that the true context is fully described in order to mitigate against the damage that may be done. Alternatively, an individual can apply under the “exceptional case procedure” for removal of information from the PNC. This procedure is rarely successful, and where it is, the applicant must prove that the information about the alleged offence is somehow false; that the incident described did not happen or that the identity of the individual was mistaken. Where sexting is involved, it is often fairly simple to identify that a particular individual was involved through telephone data. In the present case, A apparently also admitted to having taken the picture to police at his school. It is highly unlikely that such an application would therefore succeed.

The last resort is to take positive action at the point an application for a job which involves an enhanced DBS check is made. Legal representations can be made as to why the information held should not be disclosed. There are some reported cases of this approach being successful. If it is unsuccessful, and such a disclosure is made, then a final avenue of recourse may be available in the form of a judicial review at the High Court of the police decision. Such an application should be made within 3 months from the date of the disclosure and there should be evidence that the disclosure breaches the police’s own rules or guidance. The ACPO guidance referred to above may help form the basis for this type of argument.

Sadly, this reported case is not an isolated incident. The NCA Child Protection unit (Ceop Command) reported in June that it receives an average of one report per day of an issue linked to sexting. Of course, where there are genuine child protection issues such as grooming, then an investigation is entirely warranted. But it is the experience of this firm that police are increasingly pursuing teenagers who engage in consensual sexual relationships over social media and the internet. Despite a general heightened sensitivity to child protection issues, it appears that those youngsters who find themselves the subject of these types of investigation are not afforded the same consideration of their emotional and social development.

Teenagers of 13 and 14 have endured investigations of up to two years during a time of intense pressure at school. Phones and computers have been seized and examined, days off school have been taken to attend the Magistrates Court and interviews with police sat through as the most private aspects of their teenage lives have been exposed and scrutinised in the presence of lawyers and parents. These are experiences which in themselves prove difficult to recover from and move forward as untainted adolescents, whether or not they result in a criminal conviction.


This article has been published on Crimeline and on the Barrister.

Danielle’s comments have also been published in The Times, and can be found here.

An amended version of this article, ‘Sexting and the School System,’ has also been published in Criminal Law & Justice Weekly, and can be found here.

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