The increase in young people sexting cannot have escaped the attention of even the most ostrich like parents. The temptation not to think about and deal with these issues is irresistible for many parents. Those parents do so at their peril because data from police forces published in November 2017 shows a surge in children sharing or possessing sexual images of themselves or others - now politely referred to as “Self-Generated Images” – with over 6200 incidents reported last year being an increase of 131% from 2014/2015. Thankfully, an initial analysis shows that the number of children being charged in these cases has more than halved.

Outcome 21 – what is it and why was it introduced?

Outcome 21 enables police forces to deal with sexting offences without criminalising children and young people. You will recall from our previous blogs that sexting encompasses a wide range of behaviour from consensual sharing to coercive and exploitative behaviour. In many cases, young people share these images without fully appreciating the serious criminal implications. While the photo can be of the young person themselves - and certainly sent and received consensually - they are indecent images of children if the participants are under 18.

In a concession to the irrationality of this situation, in January 2016, the Home Office launched Outcome 21 (an additional option for recording the conclusion of a police investigation concerning sexting) which states:

Further investigation, resulting from the crime report, which could provide evidence sufficient to support formal action being taken against the suspect is not in the public interest – police decision.

This outcome code allows the police to record a crime as having been committed but for no formal criminal justice action to be taken as it is not considered to be in the public interest to do so.

Some say that Outcome 21 fails to tackle the legislative root of the problem. However, the intention of utilising Outcome 21 in cases of youth produced sexual imagery is to provide the option of a proportionate response to this behaviour and to avoid the criminalising of children.

The College of Policing briefing note ‘Police action in response to youth produced sexual imagery (‘Sexting’)’ (November 2016) states that Outcome 21 may be considered the most appropriate resolution in youth produced sexual imagery cases where the making and sharing is considered non-abusive and there is no evidence of exploitation, grooming, profit motive, malicious intent (e.g. extensive or inappropriate sharing (e.g. uploading onto a pornographic website) or it being persistent behaviour. Where these latter factors are present, Outcome 21 would not apply.

The wide discretion enabled by these factors may explain why there is so little use of the code in recording the outcome of these investigations. Indeed, our experience at Kingsley Napley is that the police are taking “no further action” in these cases but very few are aware of Outcome 21 until we raise the issue.

Implications of Outcome 21

It is not possible to categorically say that an incident of youth produced sexual imagery recorded on police systems with Outcome 21 would never be disclosed on a Disclosure and Barring Service (DBS) certificate. But it shouldn’t be and to do so entirely defeats the purpose of having the disposal option.

The decision to disclose information on a DBS certificate is made on the basis of whether that information is relevant to the risk an individual might pose to children, young people or vulnerable adults.

If, as a result of a police investigation, Outcome 21 was considered appropriate this indicates that a criminal justice sanction was not considered proportionate. If a criminal sanction was not appropriate, it is then unlikely that there would be many if any instances in which the disclosure test the Chief Officer must apply would be passed.

Discretion about whether to disclose non-conviction information rests with each Chief Constable managing the process. When considering each case, these senior officers are supposed to consider the relevance of the information to the position applied for (for example, whether it involves children, young people or vulnerable adults).

Few people over 30 years old, let alone police officers, will truly understand why young people sext or will ever see sexting as a “routine” activity in modern day relationships. For as long as this lofty value judgement continues to be exercised by the police, the likelihood of Outcome 21 providing a pragmatic response to a legislative vacuum remains an illusion.