The Police Foundation have published a report on some of the complex legal issues surrounding sexting. The report examines the law, crime recording rules and practices and questions whether there is a case for change.
- Sexting is the sending and receiving by children and young people of ‘youth produced sexual imagery’. It takes place within consensual relationships but can also be associated with bullying and exploitation. Recorded offences have more than doubled in the last three years.
- The relevant law was enacted in the pre digital age in order to protect children from exploitation. Sexting was not the type of behaviour it was designed to prevent.
- Schools have a choice whether to report sexting incidents to the police and some forces are increasingly seeking to avoid criminalising children where there are no aggravating factors present.
- The National Crime Recording Standard states that incidents involving indecent images of children (including sexting offences) must always be recorded as crimes once reported to the police.
- The Home Office Counting Rules for Recorded Crime (HOCR) clarify how crimes should be recorded for statistical purposes. This can result in surprising outcomes. A girl who takes a naked photograph of herself and sends it to a boy is arguably a suspect and a victim but how individual police officers record the information will vary as the NCRS and HOCR are silent on this point.
- There is nothing in the NCRS and HOCR which says that a police force must record anyone’s personal details in the suspect / victim fields of a crime record for a crime to be recorded and counted.
- All of the above points could result in different crime record construction and a lack of comparability of any resulting statistics.
- The Home Office view is that a child having their details recorded on the police database does not criminalise them and the police are under no obligation to record personal details of victims and suspects. The author disagrees.
- Outcome 21 seems like a sensible way of complying with NCRS and taking a proportionate response. However, chief constables have considerable discretion over whether to disclose ‘Outcome 21’ allegations as part of DBS disclosures.
- NPCC data is difficult to analyse and rely on due to the inconsistencies in crime recording.
- It is important to think about what the law would look like if it was drafted today.
In its current state, the law created to protect children in fact criminalises them. Even when no formal action is taken against a child, information linking them to sex offences is held on the police national database and potentially disclosed to future employers. The issues surrounding sexting are complex and multi-layered. The result may be that the relevant legislation needs to be re-examined as does the current criminal records regime.