Crossing a significant age threshold: Notification requirements

[2023] EWCA Crim 204


The Court of Appeal has confirmed that where the application of notification requirements is dependent upon a defendant having attained a particular age, it is their age when the offence was committed that is relevant, rather than the age at which they appear before the Court.


The applicant here was a young adult of previous good character, who had committed an offence of distributing an indecent image of a child when he was 17 years old. At the time, he had been in a sexual relationship with the complainant, who was 15 years old, and they had filmed themselves having sexual intercourse. He then posted the video on a pornographic website, where it was viewed by others before being taken down. He made full admissions in his police interview but was only charged with the offence when he was 20 years old. He pleaded guilty and was committed to the Crown Court for sentence, where he was ultimately sentenced to an 18-month Community Order.

No issue was taken with the sentence itself. However, the Judge ordered that he be subject to notification requirements for 5 years as a result of the conviction. It was submitted by the defence advocate that he should not have been made subject to notification requirements in light of the fact that he was under 18 at the time of the offence. However, the Sentencing Judge was not persuaded, stating that on his “interpretation of s.95 of the Sexual Offences Act 2003, the reference to the person’s age when the photograph was taken is a reference not to the offender, but to the person who appears in the photograph”. The notification requirements therefore remained and he appealed to the Court of Appeal.

Allowing the appeal, and quashing the s.92 certificate, the Court of Appeal stated that Parliament had limited the circumstances in which such an offence attracts notification requirements in two ways. Firstly, by requiring that the subject of the photograph is under 16 and secondly, by requiring that the ‘offender’ was 18 or over, unless the offence was of such seriousness that the ‘offender’ was sentenced to a period of custody for at least 12 months. 

The Court of Appeal confirmed that where the application of the notification requirements is dependent upon the ‘offender’ having attained a particular age, it is their age when the offence was committed that is relevant, rather than the age at which they appear before the Court. In this case, the person in the image was under 16 but the applicant was not, at that point, aged 18 or over.  Therefore, on a proper interpretation of the statutory provisions, the notification requirements did not attach to the applicant.


The offences of possession, making and distributing indecent images of children were created before the age of social media and the internet; with Parliament’s intention being to safeguard children and to prevent adults creating, and distributing, indecent images of children. There have been a number of reports over the last decade in relation to children who have demonstrated harmful sexual behaviour. The 2016 parliamentary report entitled ‘Now I know it was wrong: Report of the parliamentary inquiry into support and sanctions for children who display harmful sexual behaviour’ confirmed that children and young people who are investigated for such behaviour should be treated as children first. It stressed that there is a risk that children and young people will be unnecessarily criminalised, and stigmatised, as ‘mini sex offenders’ despite the fact that they did not act with the necessary criminal intent.

In this case, the Court of Appeal recognised that Parliament had limited the circumstances in which notification requirements applied in such cases, no doubt with the position of young people in mind. They commented that Parliament has granted young people the benefit of an exception from the normal consequences of such offences, based on their comparative youth, and confirmed that they do not lose that benefit merely because they are not convicted until after they have turned 18 years old.

It is unclear why this applicant was not deemed suitable for an Out of Court Disposal or why there was such a delay in him being charged with this offence, particularly in light of his full admissions in his interview. However, this case serves as an important reminder to those who represent Young People at the police station of the importance of active engagement with the police to obtain charging decisions before a child turns 18. Had he been bought before the Youth Court, it appears likely that a Referral Order would have been imposed. 

For guidance on representing children facing allegations of a sexual nature, see the following YJLC guide:

Children facing sexual allegations

Written by Sabrina Neves, Solicitor at GT Stewart Solicitors