Part 7: Other provision about use of, or access to, data Purported intimate images Section 138: Creating, or requesting the creation of, purported intimate image of adult
Section 138(2) inserts new sections 66E, 66F, 66G and 66H into the Sexual Offences Act 2003 to provide for new offences relating to creating (66E), or requesting the creation of (66F), purported intimate images of an adult without consent or reasonable belief in consent, as well as relevant definitions (66G) and time limits for prosecution of the offences (66H).
	Subsection (1) provides that it is an offence if a person (A) intentionally creates a purported intimate image of another person (B), without B’s consent or a reasonable belief in B’s consent.
	Subsection (2) provides that a "purported intimate image" of a person is an image which appears to be or include, but is not, or is not only, an authentic photograph or film of the person; appears to be of an adult; and appears to show them in an "intimate state". This does not cover images of children as the criminal law already captures the making of indecent images (including deepfake images) of children (i.e. those under the age of 18).
	Subsection(3) provides that an "intimate state" is defined, for the purposes of this offence, as it is in sections 66D(5) to 66D(9) of the Sexual Offences Act 2003.
	Subsection (4) provides that creating a purported intimate image of a person does not include modifying an authentic photograph or film, where those modifications do not add to the image either a new person, or a new element which constitutes an intimate state, which was not shown in the original authentic photograph or film.
	Subsection (5) provides for a defence of reasonable excuse to the offence of creating a purported intimate image without consent, with the legal burden on the defendant. This would mean that if a person could prove on the balance of probabilities that they had a reasonable excuse for creating the image without consent or reasonable belief in consent, they would not be guilty of this offence. The Government anticipates that this would apply only in very rare scenarios, where there is a genuinely reasonable, not spurious, excuse. The Government anticipates that the bar is especially high for images appearing to show a person engaged in sexual activity. For example, if a person created a purported intimate image of a person engaged in sexual activity, without that person’s consent or reasonable belief in consent, but claimed it was a legitimate work of satire, it is the Government’s view that it is extremely unlikely that they would be able to satisfy the legal burden of proving that there was a reasonable excuse.
	Subsection (6) sets out that the creating offence will be triable summarily, and that the maximum penalty on conviction is an unlimited fine or imprisonment not exceeding the maximum term for summary offences (or both).
	Subsection (7) places a duty on the Secretary of State to review the operation of the reasonable excuse defence to the offence of creating a purported intimate image, to publish the outcome of the review within two years of the offences coming into force, and to lay the report before Parliament. Section 66F subsection (1) provides that it is an offence if a person (A) intentionally requests the creation of a purported intimate image of another person (B), without B’s consent or a reasonable belief in B’s consent. The offence is committed whether the request is made to create a specific purported intimate image, or a purported intimate image in general.
	Subsection (2) provides that it is an offence to request that if a purported intimate image of another adult is created, it includes or excludes something in particular. This could be, for example, where one person offers to make some purported intimate images of a person in general, and another person replies with a request for a specific image, such as an image of that person in particular underwear, naked or engaged in a particular sexual act.
	Subsection (3) provides that a ‘request’ includes doing an act which could reasonably be taken to be a request (such as: nodding, giving a ‘thumbs up’, ‘liking’ a message or otherwise indicating agreement in response to an offer, or complying with condition of an offer, for example by sending money).
	Subsection (4) provides that making a "request" includes both making a request directed to a particular person or persons, and making a request available to one or more people (or people generally), without directing it to a particular person or people (for example, by posting a request on a large online forum).
	Subsection (5) provides that "consent" for the purposes of these offences means consent to the specific type of request in question: either consent to a request directed to a particular person or persons, or consent to a request made available to one or more people (or people generally), without directing it to a particular person or people.
	Subsection (6) provides that the offence can be committed irrespective of whether or not the image being requested is ever, in fact, created and irrespective of whether another individual has also made the same request for a purported intimate image. This ensures that if, for example, multiple people vote for the same option in a poll to request the creation of an image (or that an image should include or exclude a particular thing), each individual who votes would commit the offence. However, a person merely encouraging someone else to create an image when they are aware that the other person had already expressed a settled intent to create such an image would not commit the offence. The subsection also provides that the offence includes acts of requesting, irrespective of the location of any person who is being requested to create the image.
	Subsection (7) provides for a defence of reasonable excuse, to the offence of requesting the creation of a purported intimate image without consent, with the legal burden on the defendant. This would mean that if a person could prove on the balance of probabilities that they had a reasonable excuse for requesting the creation of the image, they would not be guilty of this offence. The Government anticipates that this would apply only in very rare scenarios where there is a genuinely reasonable, not spurious, excuse. The Government anticipates that the bar is especially high for images appearing to show a person engaged in sexual activity. For example, if a person created a purported intimate image of a person engaged in sexual activity, without that person’s consent or reasonable belief in consent, but claimed it was a legitimate work of satire, it is the Government’s view that it is extremely unlikely that they would be able to satisfy the legal burden of proving that there was a reasonable excuse.
	Subsection (8) sets out that the requesting offence will be triable only summarily, and that the maximum penalty on conviction is an unlimited fine or imprisonment not exceeding the maximum term for summary offences (or both).
	Subsection (9) provides that references to a purported intimate image, to creating such an image and to a person shown in an intimate state have the same meaning as in section 66E.
	Subsection (10) places a duty on the Secretary of State to review the operation of the reasonable excuse defence to the offence of requesting the creation of a purported intimate image, to publish the outcome of the review within two years of the offences coming into force, and to lay the report before Parliament.
	Section 66G subsection (1) sets out provisions relevant to sections 66E and 66F.
	Subsection (2) provides that "consent" to the creation, or a request for the creation, of a purported intimate image, includes general consent covering the particular act, as well as specific consent to that particular act
	Subsection (3) provides that when determining whether or not A’s belief in B’s consent was reasonable, regard must be had to all of the circumstances, including any steps that A has taken to ascertain whether B consents.
	Subsection (4) and (5) define "photograph" and "film".
	Subsection (6) provides that references to "image", "photograph" or "film" include data that can be converted into an image, photograph or film - for instance data stored on a hard drive or disc.
	Subsection (7) provides that an image appears to be an image of an adult if the impression conveyed is that the person shown is aged 18 or over; or if the predominant impression conveyed is that the person is 18 or over - even if some characteristics shown are of a person under 18.
	Subsection (8) defines the term ‘the maximum term for a summary offence’, which is used in new sections 66E and 66F as part of the maximum penalty of the offences. In line with how the same term is defined in other legislation, the definition sets out that if the offence is committed before the time when section 281(5) of the Criminal Justice Act 2003 comes into force, the term means 6 months, and if the offence is committed after that time, the term means 51 weeks.
	Section 66H subsection (1) makes an exception to the generally applicable statutory time limit for offences tried in a magistrates’ court in section 127(1) of the Magistrates’ Courts Act 1980 (which is six months from when the offence was committed), to enable prosecutions for the offences at sections 66E and 66F to be brought at any date which is both within six months from when the sufficient evidence comes to the prosecutor’s knowledge to justify a prosecution and within three years from when the offence was committed.
	Subsection (2) provides that a certificate signed by or on behalf of a prosecutor stating the date on which evidence which the prosecutor thinks is sufficient to justify a prosecution came to the prosecutor’s knowledge is conclusive evidence of that fact.
	Subsection (3) makes a consequential amendment to section 79(5) of the Criminal Justice Act 2003. The effect of the amendment is to exclude new sections 66E and 66F from the application of the general definition of an "image of a person" which otherwise applies for the purposes of Part 1 of that Act.
	Subsection (4) inserts new section 177DA into the Armed Forces Act 2006 to ensure that where a person commits a service offence, as respects which the corresponding offence under the law of England and Wales is the offence of creating a purported intimate image without consent or reasonable belief in consent, courts within the Service Justice System have the power to make a deprivation order in respect of the images to which the offence relates, and anything containing them. Such an order could be used to deprive the offender of ownership of the image or anything containing the image, such as a mobile phone, laptop or hard drive.
	New section 177DA does this by providing that for the purposes of the powers under section 177C of the Armed Forces Act 2006 to deprive offenders of certain property following conviction for a criminal offence (including property used for the purpose of committing the offence), purported intimate images to which the offence relates are to be treated as having been used for purposes of committing the offence, such that the power under section 177C of the Armed Forces Act 2006 will apply to such images.
	Subsection (5) provides that a person cannot be guilty under section 45 or 46 of the Serious Crime Act 2007, of encouraging or assisting the offence under new section 66F of the Sexual Offences Act 2003.
	Section 138(6) inserts a new section 154A into the Sentencing Act 2020. Subsections (1) and (2) ensure that where a person commits the offence of creating a purported intimate image without consent or reasonable belief in consent, courts have the power to make a deprivation order in respect of the images created during the commission of an offence, and anything containing them. Such an order could be used to deprive the offender of ownership of the image or anything containing the image, such as a mobile phone, laptop or hard drive.
	Subsection (2) does this by providing that for the purposes of the powers under section 153 of the Sentencing Act 2020 to deprive offenders of certain property following conviction for a criminal offence (including property used for the purpose of committing the offence), purported intimate images to which the offence relates are to be treated as having been used for purposes of committing the offence, such that the power under section 153 of the Sentencing Act 2020 will apply to such images.
	Subsections (3) to (5) ensure that where a person commits the offence of requesting the creation of a purported intimate image without consent or reasonable belief in consent, courts have the power to make a deprivation order in respect of the images connected to the offence, and anything containing them. Such an order could be used to deprive the offender of ownership of the image or anything containing the image, such as a mobile phone, laptop or hard drive.
	Subsection (4) does this by providing that for the purposes of the powers under section 153 of the Sentencing Act 2020 to deprive offenders of certain property following conviction for a criminal offence (including property used for the purpose of committing the offence), where a person commits the offence, purported intimate images which are connected with the offence, or any device containing those images, are to be treated as having been used for purposes of committing the offence such that the power under section 153 of the Sentencing Act 2020 will apply to such images.
	Subsection (5) provides that a purported intimate image of an adult is an "image which is connected with an offence" under new subsection (4) if it was in the offender’s possession or control as a result of the request, and it appears to be of the person who was the subject of the request. The subsection provides that, if the image meets these conditions, it does not have to be the precise image requested (for example, if the request was for a naked image of an individual, and the image appears to depict the same individual wearing only underwear, this would still be an "image connected with an offence" for these purposes).