Not So Innocent Chatter -– How Users Could Face Prosecution for Unsolicited Material sent to them on Social Media Chat Threads

Three recent cases BSQ have been involved in highlight the dangers of users interacting in a multi-party social media or WhatsApp thread where illegal material is posted or shared by a third-party. Even if the material – usually photos or videos, often sent in an attempt at dark humour – is not solicited or asked for by viewing, accessing or deliberately forwarding this material a passive recipient could find themselves in court facing criminal charges. And claiming ignorance of the law – as the old legal maxim provides - is no defence.

The law concerning illegal images is contained in the Protection from Children Act 1978 and makes it an offence to access, view or download indecent material. The offence of downloading (known in legal parlance as “making”) carries a maximum penalty of 10 years. As the case studies below illustrate, individuals can be prosecuted even if they passively receive images posted by others they didn’t ask for. Examples of where criminal liability could arise include situations where one user posts illegal material in a multi user group. Viewing such material can result in charges of downloading. Forwarding this material onto others is even more perilous as it can lead to the more serious charge of distribution.  

In the first case study, BSQ‘s client T, a professional working in IT was a man with no previous police history who was married with a young family. He was charged with downloading indecent images. It was alleged that he had viewed and accessed illegal material that had been posted on a multi-party WhatsApp group with ex school and university friends that he was a member of.

It was not alleged that T had posted any illegal material on Whatsapp, rather that he passively received the images and then viewed them. When questioned about the accusations, T’s response was that the messages had been posted some years ago. He had no recollection of ever participating in the group or viewing any images circulated on it.

In preparing T’s defence, BSQ challenged the expert evidence provided by a digital engineer instructed by the Crown. In response BSQ instructed defence forensics experts to review the prosecutions report. They identified numerous errors in the Crowns expert report. Some of the errors were so fundamental and concerning that BSQ queried the competence of the digital forensics engineer responsible for preparing it.

It was only after protracted correspondence and four procedural pre-trial hearings that the Crown were persuaded to instruct a second expert to review their initial findings.  Following a second review by a new expert instructed by the CPS, a decision was taken to discontinue the case against T in January 2022, 14 months after he was originally told of the decision to charge him in September 2021. The Crown’s decision vindicated the representations we had maintained throughout that the evidence disclosed from our client’s phone did not record any criminal behaviour by our client.

You can read more about T’s case in our blog here.

In our second case study, BSQ’s client J, a businessman of good character belong to a WhatsApp thread with former work, army and rugby club friends. Provocative material was often shared on the thread, normally in jest. Acting on intelligence received police seized J’s phone. A forensics analysis of J’s devices revealed that he had viewed and accessed this material which included extreme pornographic images. J maintained that he had no knowledge that this type of pornographic material was illegal but accepted that he may have seen it. His digital footprint suggested he had. J was interviewed by the police on two occasions. Following a BSQ intervention, J avoided criminal charges and received a formal caution for this conduct.

In our third case study, BSQ client X, who worked in the financial services industry and was a man of good character was prosecuted for downloading and distributing a handful of illegal images. This material had been sent to him on a WhatsApp group he shared with university friends.

X was unaware that the material which featured illegal images. Digital forensics analysis of his phone reveal that he had viewed and access the material and also forwarded it on to other members of the thread. This was sufficient, in the view of the CPS, to justify instituting criminal proceedings despite X’s good character. Taking (in BSQ’s opinion) a very rigid position the CPS rejected BSQ’s representations that the X’s case should be diverted away from court and he should be considered for a caution.

When X pleaded guilty and was sentenced at the Crown Court the Court accepted BSQ’s submissions that X had no sexual interest in children and took the unusual step of not ordering him to attend a sex offenders treatment program.

T, J and X were all represented throughout by BSQ partner Roger Sahota acting as solicitor and counsel.

You can find more information about our indecent images defence solicitors on our dedicated page.

If you require advice and assistance in relation to an indecent images investigation or need a crime solicitor please call our London offices.