Sentencing for possession, distribution, or production of illegal images

In the Magistrates Court, sentence will be decided by the magistrates or a district judge. The maximum sentence available in the Magistrates Court is 26 weeks in prison per offence, with a maximum total of 52 weeks in prison. 

If it is decided that the powers of the Magistrates Court are not enough then a person will be sent to the Crown Court for sentence. 

In all sentencing cases there are essentially three types of sentence available; a fine, a community order, or a prison sentence. 

If a person is to be given a prison sentence of 2 years or less then it is possible to argue that the prison sentence be suspended. This means you will not actually go to prison as long as you stay out of trouble and comply with other community requirements.

If you plead guilty they will receive a discount on their sentence. A person who pleads guilty straight away will usually receive a discount of one third. A person who pleads not guilty to start with, but changes their plea later might receive a discount of between 10% or 20%.

The Sentencing Guidelines Council publishes sentencing guidelines to help every court impose consistent sentences for like offending. The court must usually follow these guidelines (although the guidelines allow for sufficient flexibility to ensure that justice and fairness can be done to each case). The guidelines work by giving a ‘starting point’ sentence and then a sentence range for each category of offence. This is the ballpark sentence for each level of offence within this type of offending.

In cases of illegal images of children, the seriousness of the offence will be determined by the nature of the images and what was being done with them. There are three categories of image, with Category A images being the most serious, then Category B, then Category C. 

A person may be in possession of the images, distributing the images or producing the images. Thus as a starting point the most serious offender will produce Category A images. The least serious offender will possess Category C images. The table of likely sentences therefore looks like this:

 PossessionDistributionProduction
Category AStarting point
1 year’s custody3 years’ custody6 years’ custody
Category range
26 weeks’ – 3 years’ custody2 – 5 years’ custody4 – 9 years’ custody
Category BStarting point
26 weeks’ custody1 year’s custody2 years’ custody
Category range
High level community order – 18 months’ custody26 weeks’ – 2 years’ custody1 – 4 years’ custody
Category CStarting point
High level community order13 weeks’ custody18 months’ custody
Category range
Medium level community order – 26 weeks’ custodyHigh level community order – 26 weeks’ custody1 – 3 years’ custody

Once the court has made appropriate adjustments up or down depending on aggravating and mitigating features, the court will then give credit for any guilty plea, at a level in-line with the timing of that plea.

If the sentence at that point is above the custody threshold the court must ask whether a prison sentence is necessary in all the circumstances of the case. Even if a case is serious enough for a prison sentence, a prison sentence need not be given, perhaps because of certain mitigating features or because the offender has shown a commitment and readiness to undergo rehabilitation and therapy. A robust community sentence may be a proper alternative to a prison sentence in such a case.

If the offence is so serious that only a custodial sentence can be justified then if that sentence is two years or less the court must ask whether the sentence can be suspended. The court may suspend a sentence of imprisonment if the circumstances of the offence or the offender make it appropriate to do so. 

A prison sentence may, for example, be suspended because whilst the offence is so serious the prospects of effective rehabilitation in the community are real and genuine. 

A person may have work or family commitments that would mean another person would be adversely affected by such a sentence. Each case very much turns on its own facts. If a court suspends a sentence of imprisonment then it can impose any requirement that it might have done under a community order, or impose no requirements other than not to commit a further offence.

If a person is sent to prison they will usually serve a maximum of one half of their sentence in prison, and the remainder on licence to the probation service. They may be released earlier than the halfway stage on a tag, under a home detention curfew. More serious offenders, or those who are considered dangerous, may face a different regime.

A community order may include an order to undergo therapy or treatment organised through the probation service. It may also include an order to undertake community service, which is unpaid work in the community. It can also include being ordered to wear a tag with a curfew to remain indoors at your home address for certain hours during the week.

A person convicted of a child image offence may also face being subject to a Sexual Harm Prevention Order, as well as being on the Sex Offender’s Register.

Although the sentencing guidelines have improved consistency and allowed a greater degree of structure around the sentencing process, in reality the way in which various different factors are weighed and balanced makes the exercise very much one of discretion. For example, the weight to be attached to a person’s previous good character or to the fact that they have done considerable and important good deeds in the community is a matter of fine judicial judgment.

For confidential and impartial advice, please contact John on 01207.654365 or email jbrown@nechambers.co.uk 

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