Stupidity and criminality: a fine line?

The news that a teenage boy has been placed on the police national database for sharing a photograph of himself unclothed via an app he expected to destroy the photograph within seconds of its receipt raises interesting questions. Firstly, there is the issue of what is indecent? Had he taken a photo using the app on a nudist beach and shared it with someone else on the same beach would it have been indecent. Secondly, was the school suffering from large numbers of pupils sharing such photographs of others in a manner that was disrupting the life of the school, even if the photographs were taken outside of the school? If this was the case, were pupils told that taking and sending such photos, even on a self-destruct basis, was a breach of school rules?

Even if all the above were true, the boy seems to have been stupid. The person who stopped his photo self-destructing and then passed it on to others gratuitously seems to be much more culpable, as was anyone then passing it on to another person. However, what if the boy had painted an image of himself in a life class and then photographed it? Would that constitute a representation of art or an indecent image, even if forwarded to a third party?

The fact that the police officer appears to have said that she had been told by her superior to take action suggests this might not have been an isolated incident. Even so, did it merit what appears to be a deterrent sentence of inclusion as intelligence on the police computer with all that entails for enhanced DBS checks? Without knowing the full facts, it is difficult to answer that question other than in the abstract.

There was a suggestion during the coalition government that all of these teenage transgressions be wiped from the record at eighteen if there had been no further mis-behaviour. After all, most teenagers do silly things, some of which are not legal.  I would support at least the of an individual to have the ability to ask a court to take such action as a way forward. Presumably, the school will have to decide whether it includes reference to this event in any support it provides on an application form for a job, apprenticeship or university place?

The law does seem to be bearing down hard on teenagers at present even though I suspect that deterrent sentences have less effect on teenagers that on adults, as young people often act before thinking. In this case it raises the question of where does the criminal law operate in relation to institutions? I suspect the answer is that the rule of law is paramount and must always take precedence over the rules of an institution. However, there seems to be an issue of what happens with cases that fail to meet the charging threshold and are left to junior police officers to decide the outcome and consequences for the individual in such circumstances where they cannot have either a jury or a bench of magistrates decide on guilt or innocence. That seems to me to pose big risks as we have seen with the use of unfettered police bail in the past. It is why I have never favoured district judges sitting alone to decide on the issue of guilt or innocence except in the most clear cut motoring cases.

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4 thoughts on “Stupidity and criminality: a fine line?

  1. According to CriminalLawyer, there should be no criminal record if no further action was taken following someone’s arrest. If the police keep ‘no further action’ data they could be breaking their rules.

    http://criminallawyer.co.uk/criminal-defence-questions-and-answers-old-bailey-solicitors/police-station-questions-and-answers/if-i-have-been-arrested-will-i-have-a-criminal-record/

    That said, the consequences of sexting and sharing indecent photos should be taught in schools perhaps through well-designed PSHE programmes.

    • Janet,

      But my understanding is that the police can collect soft intelligence and pass that on when a full DBS check is made. This includes cautions – not a criminal record – and follows from the Soham murders when I think different police forces had intelligence they didn’t share. In this case there is a risk of the police holding intelligence but not of a criminal record.

      John Howson

      • The news report said no further action was taken. The investigating force said no young person had been arrested or interviewed under caution. http://www.bbc.co.uk/news/uk-34136388 This would suggest no young person was given a caution. Cautions remain on a person’s record https://www.askthe.police.uk/content/q562.htm but it doesn’t appear from the news report that the young people were given a caution.

        Whether entering the data into the Police Database was lawful or not would depend on whether the young people were given a caution. If not, it would possibly be unlawful to record the young people’s name with the crime log (or whatever).

        Having said that, the database keeps info about arrests. Presumably this includes arrests of people subsequently found innocent. This is a grey area. However, in the case under discussion the young people were not arrested.

        http://www.inbrief.co.uk/police/police-national-computer.htm

      • Janet,

        I think the whole issue of intelligence is a grey area. In the interview on the today programme the mother it seemed to me thought it was recorded. Presumably, she now has a lawyer arguing it out.

        John Howson

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