Darknet Sexual Offences: An Overview of the Law in the UK

The Internet has completely revolutionised everyday life by making information easier to access and more widely available. Given the boons that it provides to individuals, a common issue that presents itself is that of anonymity on the Internet. This has given rise to the so-called ‘Darknet’, or dark side of the Internet.

The Darknet is a space within the Internet which does not materialise on search engines. An alternative way of thinking about this part of the Internet is that it is not ‘public’ or freely accessible. It allows individuals that have the technology and knowledge to access it, to use it to share material without the risk of being tracked by regulators or government organisations. This ability to remain anonymous in the sharing of information has resulted in the creation of a series of offences aimed at curbing the perpetration of sexual offences online.

At Tuckers Solicitors, we have been at the forefront of developments in this field: we are regularly instructed to defend individuals that have been charged with offences relating to use of the Darknet in connection with allegations of the most serious breaches of criminal law.

Overview of the Law on the Darknet

In the UK, there are a series of offences that exist which are specifically created to address the ability of individuals to use the Darknet to commit sexual offences. The legislation in this field is varied and criminalises a great deal of activities, most of which concern any participation in or connection with the sexual abuse of children. The offences that have been created are relatively comprehensive and have been designed in such a way that there is no ambiguity regarding the legal position in the UK regarding sexual activity involving children.

Possessing Guidance on Child Abuse

The Serious Crime Act 2015 is the most recent piece of legislation in this area and details the following offence:

It is an offence to be in possession of any item that contains advice or guidance about abusing children sexually.

The language used in the legislation is unambiguous. ‘Possession’ will be taken to have its ordinary meaning, i.e. if someone is found to have a physical copy of what has been termed a ‘paedophile manual’ or other guidance on child abuse, then they will be vulnerable to this charge. Furthermore, in the context of using the Darknet to access such material, if there is evidence of this then there will be grounds for them to be charged under the 2015 Act.

In terms of defences to allegations of possession under the 2015 Act, there are three options available:

1. The accused had a legitimate reason for being in possession of the material. This defence is primarily made available for those whose job or occupation requires them to have sight of this kind of information, i.e. police officers or prosecutors who, in the course of their duties, must have possession of this material. It will, however, be for the jury to determine what a ‘legitimate’ reason actually is, depending on the circumstances.
2. The accused had not had sight of the material and did not know, nor had any reason to suspect that the material contained advice or guidance about abusing children sexually. This is perhaps best described as the defence to a situation where suspect material is found on a computer or sharing network that an individual has access to, i.e. the Darknet, but the individual concerned was not aware of the material’s existence.
3. The material was sent unsolicited by the accused, and they did not keep it for an unreasonable time. This defence is specifically designed for situations where the accused had not asked for the material to be made available to them and who act quickly to delete the material.

The legislation governing the ‘possession’ of guidance concerning child abuse is blunt, and all encompassing. However, at Tuckers Solicitors we have particular experience on handling criminal charges of this nature. In defending an allegation of possession of guidance on child abuse, we regularly employ the use of computer experts to contribute to our defence work. Working in partnership with them, we will be able to identify if certain files were accessed by an individual. If there is technical evidence that this is not the case, we will be able to provide this to a jury, presenting a credible defence that is difficult for the prosecution to refute.

Sexual Exploitation of Children

The Protection of Children Act 1978 is one of the oldest pieces of legislation in this particular field, and one of the widest ranging. It criminalises a variety of acts in respect of the sexual exploitation of children. Under the Act, it is a crime for an individual to:

1. Take, permit to be taken or to make, any indecent photograph or pseudo-photograph of a child; or
2. Distribute or show such indecent photographs or pseudo-photographs; or
3. To have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or
4. To publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

In respect of any of these offences, the Prosecution will be required to prove three things to a jury:

1. The person charged deliberately, or knowingly, took part in any of the actions listed above in respect of indecent images of children;
2. The images of the children were indecent. In practice, images will include moving images, a copy of a film or even computer information that can be turned into a photograph. Furthermore, it is important to understand that the question of whether or not an image of a child is indecent will be determined by the jury, not the prosecution.
3. The photograph in question must be of a child. The law contained in the Sexual Offences Act 2003 defines a ‘child’ as an individual under 18 years old. However, as with the question of indecency, it will be for a jury to decide on whether or not the image was of a child.

The 1978 Act is arguably one of the most regularly used pieces of legislation used by prosecutors in pursuing criminal activities in respect of the internet, and in particular the Darknet. In practice, it will not be particularly difficult for the prosecuting authorities, on available evidence, to demonstrate that the act of downloading questionable material, contrary to Act, took place. However, this will not be enough to succeed in a criminal prosecution, as there must be evidence that the individual concerned actually knew what they were doing.

The Act makes three defences available to individuals charged under the 1978 Act:

1. The accused has a Legitimate reason for having the material in question. This defence is relatively easy to understand but is limited in its applicability: it tends to relate to individuals whose job requires them to be familiar with and to possess material pertaining to sexual exploitation i.e. police officers. Its utility in a prosecution for use of the Darknet to access questionable material is limited.
2. The accused had a lack of knowledge in respect of their activity. This defence can be particularly useful in terms of defeating a charge of using the Darknet to access illegal material. It is not illegal per se to view pornographic material. However, if child pornography is accessed then this will attract liability under the Act. If it can be demonstrated that someone did not know that what they were viewing on the Darknet would be illegal, then this will be incredibly useful to defeating the prosecution’s case.

At Tuckers Solicitors, we have a great deal of experience in handling this particular defence. Our defence strategy is unique among criminal defence firms in that we complete a comprehensive analysis of the charges brought against clients. We regularly acquire psychiatric reports on the mental state of our clients to demonstrate to a jury that the requisite mental element of the offence in respect of the sexual exploitation offences was not satisfied.

3. The photograph was sent without any request from the person concerned and they did not keep it for an unreasonable period of time. Not unlike the ‘lack of knowledge’ defence, this can be particularly useful in fighting a prosecution for an alleged violation of the law. Due to the nature of the Darknet and similar technology information can be spread among users very easily, often resulting in a ‘shared space’ being created online to enable access and use. This can attract liability in respect of the Act, however, if the material was not actively sought out and was deleted almost immediately, then this will constitute a valid defence to the charge.

Owing to our many years of experience in handling cases concerning the 1978 Act, the team at Tuckers have become highly specialised in using this kind of defence. We regularly instruct reports from technical experts to work with us: they will be able to examine the technology and demonstrate to a court that even if there is any evidence of questionable material on a computer that was downloaded from the Darknet, it was downloaded immediately and was not accessible again by the user.

Many people believe that the Darknet, owing to the need for specialist knowledge and technology to access it, presents a ‘safe space’ where the law cannot reach. This is not the case. Many cases have been brought before the courts which relate to activities on the Darknet, as regulatory authorities master the skills of tracking online activities there. It is incredibly important that individuals concerned about potential criminal charges seek the advice of lawyers that are experts in this area.

Darknet Sexual Offence Lawyers UK – Contact our Expert Criminal Defence Team

Our specialist criminal defence team have an enviable reputation in defending clients accused of having committed sexual offences online. They have been involved in a number of cases that have centred on allegations of the use of the Darknet to conduct criminal activity. We understand that being accused of having broken the law can create a great deal of stress and anxiety for people and their families. We approach each client’s case with professionalism and integrity, and will handle your defence with the utmost care and diligence. For more information on how we can help, contact our leading criminal defence team head Jim Meyer on 0797 322 6586 or at meyerj@tuckerssolicitors.com.