When it comes to how indecent images should be used in family law proceedings, the law states the following should be taken into consideration:

1. FPR Rule 1.1(2) states:

“Dealing with a case justly includes, so far as practicable –

a) ensuring that it is dealt with expeditiously and fairly;

b) dealing with the case in ways which are proportionate to the nature, importance and complexity of the issues;

c) ensuring that the parties are on an equal footing;

d) saving expense;

and e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”

In order to give effect to the overriding objective, FPR Rule 22.1 gives the court power to control the evidence the parties may adduce in support of their respective cases.

2. FPR Rule 22.1(1) states that the court may control the evidence by giving directions as to

(a) the issues on which it requires evidence;

(b) the nature of the evidence which it requires to decide those issues;

and (c) the way in which the evidence is to be placed before the court.

3. FPR Rule 22.1(2) provides the power to exclude evidence that would otherwise be admissible.

4. FPR Rule 22.1(4) provides the power to limit cross-examination.

5. Practice Direction 12J, which applies in any private law proceedings where allegations of domestic abuse have been made or admitted. Where the court has determined that a fact finding hearing is necessary to determine disputed allegations, paragraph 19 of PD12J directs the court to consider a variety of matters in order to ensure a fair and effective hearing. Of relevance to the issues in this case, those matters include:

• identifying the key facts in dispute (paragraph 19(a));

(b) what evidence is required in order to determine the existence of coercive, controlling or threatening behaviour, or of any other form of domestic abuse (paragraph 19(d))

and (c) what evidence the alleged victim of domestic abuse is able to give and what support the alleged victim may require at the fact-finding hearing in order to give that evidence (paragraph 19(j).

What is an indecent image?

The legal definition of an indecent – or more accurately an  ‘intimate image’ – in the context of private law proceedings is an image of a person, adult or a child and/or naked or partially naked.  Such an image could include part of a person’s body, clothed, or unclothed, such as breasts, genitalia or the anus, which are generally regarded as private.

Intimate images include those of a person engaged in what is normally regarded as private behaviour such as washing, urinating, masturbating or engaged in other sexual acts either alone or with another being.

The images can be both still and moving images and are categorised as:

1. Category A – Images involving penetrative sexual activity, sexual activity with an animal or sadism
2. Category B – Images involving non-penetrative sexual activity
3. Category C – Indecent images not falling in categories A or B

Additional features are then itemised, these include:

• The age/vulnerability of the person depicted
• Whether the person depicted is in obvious pain or distress
• Whether the person depicted is known to the offender
• Whether the person depicted is obviously intoxicated or drugged
• Where there is a large number of different victims

Additional resources regarding the use of indecent images in family law proceedings

Westgate Chambers’ Ayisha Robertson has produced a series of PDF downloads exploring:

• Notes from Ms Robertson’ recent seminar for East Sussex Resolution on indecent images
• How should indecent/explicit images be used and controlled in family law proceedings?
• The Private Law Children Proceedings between K and L and M (by her children’s Guardian)

Each of the headings above is linked to the relevant PDF so you can download them immediately.

If you or a client is affected by a case involving indecent images and you would like to discuss it in total confidence with Ayisha, please contact us today.