Sexting as a phenomenon, has shown no sign of disappearing since we first wrote about the criminal ramifications a few years ago. Recent freedom of information requests by BBC Newcastle revealed there have been more than 4,000 cases since 2013 where children have taken explicit pictures of themselves and sent them to others including a 10-year old boy who received a caution for sending a photograph of himself to an 11 year old. Greater Manchester Police recorded the highest number of incidents with 695 cases being considered including four children aged just seven years old. It is important to note in passing, that the age of criminal responsibility is 10.

‘Sexting’ encompasses a wide range of behaviour from consensual sharing to coercive and exploitative behaviour. In many cases, young people share these types of images without fully appreciating the serious criminal implications, such as:

  • If you are under 18, it is illegal to send a naked selfie: you could be charged with an offence of distributing an indecent image of a child under the Protection of Children Act 1978 or Criminal Justice Act 1998;
  • Sending or forwarding indecent images of someone who is under 18 is an offence;
  • Unless you are a married couple, it is irrelevant that the age of consent is 16. You could still be charged with an offence of distributing an indecent image of a child even if you are 17 and send a photo of yourself to your 17 year old girlfriend/boyfriend;
  • Sending an unwanted naked selfie could also result in prosecution under the Malicious Communications Act if it was found that the image was sent with the intention of causing harm, distress or anxiety to the recipient.

In November 2016, the police published a briefing note on “police action in response to youth produced sexual imagery (‘Sexting’)”. The police have said that they deal with incidents proportionately and do not seek to criminalise children. The note sets out factors for consideration by the police in deciding whether the criminal justice system is a necessary and proportionate route for dealing with these cases including the long-term impact of investigation and prosecution, such as labelling a child a ‘sex offender’ and disclosure as part of a criminal records check as part of the Disclosure and Baring Service (DBS Check).

All reported offences of “youth produced sexual imagery” must be recorded as a crime in line with Home Office Counting Rules. Once investigated, the Code requires each crime to be allocated an ‘outcome code’. In January 2016, the Home Office launched a new code ‘outcome 21’ 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.’

Put simply in the context of sexting, this means that (the police believe) there is enough evidence to charge the young person with an offence but formal police action is not in the public interest. The guidance suggests that “Outcome 21” may be the most appropriate resolution in sexting cases where the making and sharing is considered “non-abusive” and there is “no evidence of exploitation, grooming, profit motive, malicious intent or persistent behaviour”.

If an Outcome 21 is recorded, the young person would not receive a caution or conviction and would avoid the many difficulties that a criminal record can bring. The outcome would still be recorded on the Police National Computer and could be disclosed if an Enhanced Disclosure and Barring Service (DBS) check was carried out in future. However, this is a discretionary disclosure and is only likely to be disclosed if the person is being investigated in relation to a similar offence and the information would suggest a relevant pattern of behaviour.

At a recent event, Jeremy Hunt said that there is a “sexting crisis” and called for a ban on sexting for under 18s but even if efforts were made to progress such a ban (unlikely), this will undoubtedly take time to implement. Technology and social media apps have made sexting simple and accessible with the click of a button or two.

For now, we are left with a situation where children and young people are sexting and are liable to criminal prosecution for such behaviour. The take home message for teenagers and their parents is that sexting is serious and, unless outcome 21 applies, you can end up with criminal cautions or convictions if it comes to the attention of the police.

Outcome 21 is a good start in stemming the criminalisation of children and young people for behaviour that is now a commonplace aspect of flirting and relationships. The law as it currently stands has the potential to make ordinary, healthy, otherwise law abiding young people into “mini sex offenders”. Any review of the law should perhaps be focussed on differentiating sexting from child pornography and educating young people about how to build safe and healthy relationships.