Melissa Vaughan is a member of Oriel Chambers Family Team.

Here Melissa provides a case update surrounding the issue of sharing sexual images in family cases.

If you would like any further assistance in any of the topics arising from this article please do not hesitate to contact our clerks at clerks@orielchambers.co.uk

‍

Revenge porn is a term that we are all now unfortunately familiar with. With the progression of social media, we have sadly become familiar with cases of parties threating to share sexual images of a partner/ex-partner without their consent. Sharing sexual images of a person without their consent is a crime. The offence is outlined at S.33 of the Criminal Justice and Courts Act 2015.

The definition of the offence is as follows:

Threats to disclose private sexual photographs and films with intent to cause distress

(1)Section 33 of the Criminal Justice and Courts Act 2015 (disclosing private sexual photographs and films with intent to cause distress) is amended as follows.

(2)In the heading, after “Disclosing” insert “, or threatening to disclose,”.

(3)For subsection (1) substitute—

“(1)A person commits an offence if—

(a)the person discloses, or threatens to disclose, a private sexual photograph or film in which another individual (“the relevant individual”) appears,

(b)by so doing, the person intends to cause distress to that individual, and

(c)the disclosure is, or would be, made without the consent of that individual.”

Although this issue is widely recognised in criminal proceedings, until recently there has been limited guidance on how to approach such matters within the family court. Often in the family court an alleged perpetrator of abuse will seek to rely on images of a sexual nature from the relationship to show that the alleged victim’s version of events is untrue.

The case of M (A child-Private Law Children Proceedings- Case Management- Intimate images) 2022 EWHC 986, now gives guidance on how to approach such matters within the family court.

Mrs Justice Knowles offered a definition of the term "intimate image" in the context of private law proceedings as follows:

"an image of a person, whether an adult or a child, naked or partially naked. Such an image can 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…. both still and moving images."

She deliberately did not refer to definitions contained in the criminal law as those did not meet the needs of the family court.

Firstly, should a party wish to rely on images of this nature, they must file a C2 application seeking permission. The application will be considered at the onset of the proceedings and sexual images must NOT be filed in the ordinary course of filing as to do so may lead to the party committing a criminal offence.

The relevance test must – of necessity – be generously applied at a pre-hearing stage, but it is noted that it is "not an open door to permit everything including the proverbial kitchen sink being deployed to bolster a case" Additionally, the court noted that the court must undertake a balancing exercise between the alleged perpetrators right to a fair hearing when faced with extremely serious allegations and the alleged victims need to have a fair process which does not impact adversely on her/his ability, as a vulnerable witness, to give his/her best evidence to the court. Finally, Mrs Justice Knowles accepted that "there may be limited value in viewing a still intimate image in order to be able to determine any issues of fact. However, a small number of such images may still have relevance and probative value, for example, to demonstrate that evidence may have been manipulated or to contradict an account given in a witness statement. Whether it is necessary for them to be viewed is another matter entirely."

Mrs Justice Knowles, at paragraph 76 made the following comments:

‘I have grave concerns about the use of intimate images in private law children proceedings where allegations of abuse, specifically domestic abuse, are made, perceiving it to be a problem which is already present in a growing number of private law children cases and one which is likely only to increase given the growing use of still and/or moving images to document intimate relationships.’

Her observations for the future are set out in 12 agreed guidelines, which is set out below:

A) Sexually explicit or intimate videos and photographs should not be filed as part of evidence without a written application being made to the court in advance.

B) Any such application will require the court's adjudication, preferably at an already listed case management hearing.

C) It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.

D) The court should carefully consider the relevance of the evidence to the issues in the case together with the likely probative value of any such evidence.

E) As part of its analysis and balancing exercise, the court will need to consider all the relevant factors including (i) any issues as to vulnerability in relation to any of the parties and the likely impact on any such parties of the admission of such evidence and the manner in which it is used in the proceedings; and (ii) if it is able to do so at a preliminary stage, whether the application/use of such images is motivated, in whole or in part, by a desire to distress or harm a party.

F) The circumstances in which a court will permit the inclusion in evidence of sexually explicit or intimate videos or photographs of any person are likely to be rare, in particular, in circumstances in which that person does not consent to such material being admitted.

G) Where the court is being asked to admit such material, the court should consider whether there may be a range of alternatives to the viewing of such material, for example but not limited to:

i) seeking an admission/partial admission in respect of the alleged conduct

ii) agreed transcripts and/or descriptions of any videos

iii) playing only the audio track of any video recordings

iv) using a still image rather than a video or a short excerpt from a longer video

v) editing images to obscure intimate parts of the body

vi) extracting meta data as to the timing and location of the evidence

vii) focused and specific cross examination on the issues

viii) consideration of the use of other evidence to prove the particular fact in issue instead.

H) If the court decides to admit any sexually explicit or intimate images/videos for any purpose, care should be taken to limit the volume of such evidence to that which is necessary to fulfil the purpose for which it is admitted;

I) The court should determine who can view the material that is to be admitted and limit this where necessary, bearing in mind its private character and the humiliation and harm caused to those both depicted and involved in the proceedings;

J) If the evidence is considered relevant, a starting point should be to say that it should incorporate the lowest number of images, seen by as few people as necessary, and viewed in the least damaging way;

K) It would be helpful to consider how best to ensure that the evidential security of such material can be maintained (for example, by using only password protected files) both within the hearing itself and outside it, and how the material is deployed within the proceedings;

L) Likewise, specific consideration should be given to the protection and safeguards necessary in respect of any video evidence relied upon (for example, such evidence being made available on a single laptop and brought to court, or the distribution being limited to a core specified legal team on behalf of each party).

Mrs Justice Knowles recognised that judges dealing with private law children proceedings in which allegations of domestic abuse are made already face significant difficulties stemming both from the volume of such work within the family justice system and from the reality that many parties are unrepresented.

The suggestions made by Mrs Justice Knowles for the management of intimate images in family proceedings are intended to be straightforward and to discourage their use save where strictly necessary to the issues which the court needs to resolve.

‍