As part of hate crime awareness week in October, the Crown Prosecution Service published much-anticipated guidelines stating that “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”.

That much has been part of CPS rhetoric for some time, but has not until now been laid down in the guidance and its inclusion is welcomed.

However, the guidance also reserves the wide discretion of prosecutors to pursue criminal proceedings in “other scenarios, such as those involving exploitation, grooming or bullying”.

As to the practical application of this discretion, the guidance unhelpfully advises that “care should be taken”. There is no guidance as to the indicative features or the level of seriousness to be taken into account during the exercise of this care.

The vagueness leaves the door wide open for cases in which aggravating features are present. Those mentioned are in addition to cases where the conduct could fall into the scope of “causing or inciting” a child to engage in sexual activity or pornography.

These offences do not require a high evidential threshold; it is sufficient to show that the suspect contemplated or desired a particular action to take place – for example, sending an image – and it was done on the suspect’s express or implied authority or as a result of exercising control or influence. That threshold in relation to sexting could be held to be persuasive or persistent message requests for pictures from one teenager to another. Such a situation is not difficult to imagine taking place during the course of adolescent relationships. While ill advised and potentially harmful, it is questionable whether a criminal record is the appropriate solution.

Despite the promise of a move towards a more coherent strategy for dealing with this complex and highly sensitive area, it is disappointing that nothing seems to have progressed at all within the CPS. Instead, it appears to have been left to the College of Policing, in its expanded guidance note on youth-produced sexual imagery published last week, to advocate a commonsense approach.

While there is no concession on the recording of the investigation itself, it instructs officers 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 process”. 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.

It is hoped that these guidelines will help to ensure that a reasoned and rational approach is taken at the earliest stages of an investigation, resulting in cases of teenage misadventure never crossing the prosecutor’s desk.

This article was originally published in The Brief, and can be found here.