BSQ Briefing - Criminalising Children for Sexting – The Law and Your Rights

It is every parent’s nightmare – a call from the school or police asking for their child to attend an interview under caution because sexual images have been found on their phone.

At BSQ we have extensive experience of acting for children in police investigations which follow reports often from school staff of pupil misconduct in the independent and state sector. Advising pupils and their parents on how to deal with both a school enquiry and police investigation we specialise in diverting cases away from prosecution and any further police action.

Sexting and the Law

Many children and their parents are often unaware that sexting - sharing sexual imagery of another child under 18 – is illegal. This is not surprising. It is not against the law for 16 and 17-year-olds to have sexual intercourse. But it is an offence if they sext each other. The fact that the sender or recipient is also younger than 18 is no defence.

Offences that could be committed include making (i.e. downloading), distributing or possessing indecent images of children – contrary to s1(1) of the Protection of Children Act 1978 or s160 (1) of the Criminal Justice Act 1988.

The sharing of sexual messages between children or “sexting” is now commonplace for young people growing up in a digital age. In 2016 a NSPCC survey suggested that up to 40% of young people may be involved in sexting.

Fortunately, where parents and their children are properly advised, most cases of sexting do not result in police action. The authorities recognise that a conviction or caution for a sexting offence can have a disproportionate impact on a child’s future prospects. A criminal sanction is not always appropriate as young people frequently share sexual images consensually, in a romantic relationship, as a joke or when there is no intended malice.

Sexting and Schools

Most sexting cases are dealt with in schools as disciplinary matters. The National Guidance for schools on how to handle sexting cases suggests that where there are no aggravating features or safeguarding issues, a police report is not required. Some police forces specifically encourage schools to deal with these cases internally.

However, parents whose children are subject to internal school investigations often approach BSQ as they still require representation where Outcome 21 is recorded – see below.

Police Action on Sexting

Once the police are involved, BSQ will take proactive steps to try and steer a case away from prosecution. The parents will be told their child will be asked to attend a formal police interview by the police community security officer following a report from the school.

Our first steps will Include seeing whether any investigation is really necessary. If the police insist on interviewing we will consider making representations to the police or CPS arguing that it is against the public interest for any formal action to be taken against a juvenile.

The law requires the authorities to take a very different approach when dealing with children as opposed to adults. In deciding whether a child should be prosecuted, the best interest and welfare of the child must be considered. The CPS must also take into account whether a prosecution is likely to have an adverse impact on the child’s future prospects that is disproportionate to the seriousness of the offending.

Outcome 21

One option BSQ frequently pursue is to persuade the police or the CPS to resolve a case by way of Outcome 21 – see our BSQ briefing on Outcome 21 here.

Outcome 21 allows the police to take no further action in a sexting case even where they have sufficient evidence to prosecute or administer a caution – normally where they have seized a child’s phone and sexual images are found on it. It allows the police to make an entry on an individual’s police national database record that despite having evidence to pursue a case they have chosen not to take any further action as it was not in the public interest.

Outcome 21 is also often recorded even when there is no formal police investigation – this is because schools are required by Home Office guidelines to record a sexting allegation as a crime in line with the Home Office Accounting Rules.

While Outcome 21 does not result in a formal criminal record there are concerns that it might have to be disclosed on an enhanced DBS check. So for example someone applying for a job in the NHS could find that an Outcome 21 recorded when they were 14 years old might be disclosed to their employers.

Ultimately it is up to the Chief Constable to decide if an Outcome 21 resolution should be disclosed on an enhanced DBS check. This will only be justified if the Chief Constable considers the information to be relevant.

In 2019 the Justice Working Party recommended that where outcome 21 is used, this should not be disclosable on a DBS check (Para.5.84 of their report). BSQ supports this conclusion and takes the view that where outcome 21 is recorded a client’s personal details should be excluded altogether and we will write to the Chief Constable asking for this information to be removed.

Find out more about our sexual crimes defence solicitors or if you require advice or assistance in relation to a sexual misconduct allegation please contact our London offices for a confidential consultation.