In September 2015, the issue of police discretion in cases of teenage “sexting” investigations came briefly to the attention of national media and the public following the decision of a Manchester mother to publicise her son’s case. Her son, who was not named, was investigated by his school following the discovery that naked self-taken images were sent via Snapchat to other students. The school’s reporting of the matter to police led to an incident log being created and details of the individuals involved and the nature of the allegations being recorded on the police intelligence database.
Despite no arrests being made, controversy surrounded the fact that future employers could potentially be made aware of the investigation into alleged sexual offences in the future via the enhanced DBS system, with no realistic recourse or challenge available to the individuals involved. The prosecution of individuals in these types of circumstances is a serious problem in itself. But, the mere existence of a recorded investigation without any discretion for the police to delete that record was deemed by many commentators to have a significant and disproportionate potential impact on a child’s future.
Unfortunately, this type of situation is far from uncommon. In June 2016, the NSPCC reported that around 1 in 7 young people have taken a semi-naked or naked picture of themselves using electronic devices. Over half of the young people in their study went on to share the image with someone else. The majority of those who shared images reported that they knew that person. The NSPCC report came amid renewed reassurances by the Crown Prosecution Service (CPS) that the guidance available to prosecutors was under review, to ensure that cases of teenage sexting were not unnecessarily criminalised. It was anticipated that those guidelines would more coherently formalise the position on how these cases are viewed and dealt with by the criminal justice system. As it stood, there was no such clarity aside from a three page lead position document published in 2014 by the College of Policing, 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 to all individuals concerned. Although informative, that paper was not binding upon prosecutors, who were free to consider or disregard as they deemed appropriate.
On 10 October, as part of Hate Crime Awareness Week, the CPS published their promised (and much anticipated) guidelines after a lengthy period of consultation. The guidance about teenage sexting cases is buried deeply amongst material concerning social media hate crime, online bullying, stalking and revenge pornography. It states 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.”
There is no guidance as to what “care” should be taken by prosecutors. It is assumed that this vagueness is deliberate in order to reserve the CPS position in cases where child protection concerns may be raised. “Sexting” is defined as being capable of 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, which in turn may be shared with peers or adults without their consent.” The CPS do not appear to address the research conducted by the NSPCC, which clearly found that the young people participating in their study did not define sexting in this way, instead referring to the exchange of words rather than images.
The CPS guidelines do not guide either the prosecution or defence on the correct course of action likely to be taken in instances of teenagers sharing images of themselves, merely that “care should be taken.” Although the guidelines codify the position that prosecuting consenting teenagers would not be in the public interest, it makes clear that this would not be the case where there is evidence of exploitation, grooming or bullying, or where the conduct of one party could fall into the scope of “causing or inciting” another party to engage in sexual activity or pornography. The latter offences do not require a high evidential threshold; it is sufficient for the prosecution to show that the suspect contemplated or desired a particular action to take place (i.e. the sending of an image) and it was done on his/her express or implied authority, or as a result of exercising control or influence over the other person. That threshold, in relation to sexting, could well be held to be persuasive or persistent message requests for nude selfies from one teenager to another, even when in the context of a consensual relationship. Such a situation is not one which is difficult to imagine taking place during the course of adolescent relationships.
Once again, one has to resort to the College of Policing for an indication of the criminal justice response. The College published their briefing note on police action in response to youth produced sexual imagery on 24 November 2016. The note encourages police to actively take a common sense approach. Whilst there is no concession on the recording of the investigation itself (all reported offences must be recorded as a crime to comply with Home Office rules), it instructs 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.” Police are discouraged from seizing devices where it appears the sending of images has been consensual, and support should be put in place for all youth parties concerned.
In cases where there is no evidence of “exploitation, grooming, profit motive, malicious intent or persistent behaviour”, it is considered by the College of Policing that no further action may be the most appropriate outcome. In order to address the specific concern of a future DBS disclosure, police should make youths and their parents/guardians aware and issue the following advice:
“In the event that a future ‘Enhanced Disclosure and Barring Service’ (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. Any decision to disclose will be made by the chief police officer dealing with the request, based on all factors and information available at the time of the decision.”
It is hoped that the expanded edition of the policing guidelines for cases of this nature will help to ensure that a reasoned and rational approach is taken at the very earliest stages of a potential investigation, and that this will translate through to the decision making process within the CPS at the charging decision stage. Nevertheless, despite the promise of a move towards a more coherent strategy for dealing with this complex and highly sensitive area of cases, it is disappointing that nothing seems to have changed at all within the CPS. Furthermore, the spectre of the enactment of section 67 of the Serious Crime Act 2015, covering sexual communication with a child (or in this context, between children) remains in the shadows of the Ministry of Justice. We await its release into force, and the guidance on how “care” will be taken by prosecutors when the subject of the exchange may be words alone and not images.
 Martellozzo et.al; “’I wasn’t sure it was normal to watch it’ The impact of online pornography on the values, attitudes, beliefs and behaviours of children.” NSPCC Research Report (2016)
This article is also published in The Barrister.