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In the case of deleted computer images, if a person could not retrieve or gain access to an image then he/she no longer had custody or control of it.

CRIMINAL LAW – LEGISLATION

Computers: Indecent Photographs Of Children: Interpretation: Knowledge: Deleted

Computer Images: Meaning Of “Possession” In S.160(1) Criminal Justice Act 1988: Statutory Construction: Possession Of Indecent Photographs: Recycle Bin: S.160(1)

Criminal Justice Act 1988: S.160(1) Criminal Justice Act 1988

A person could not be in possession of indecent photographs of children under the Criminal Justice Act 1988 s.160(1) if he no longer had custody or control of the images. In the case of deleted computer images if a person could not retrieve or gain access to an image then he no longer had custody or control of it.

The appellant (P) appealed against convictions for possessing indecent photographs of children contrary to the Criminal Justice Act 1988 s.160(1). The police had seized computer hard drives from P. They were found to contain numerous still images and movie files of child pornography. Some of the images and movie files had been deleted and the recycle bin emptied and of the remaining still images some had been saved in a database that contained “thumbnail” images. All of the larger images had been deleted and could not be viewed by clicking on the thumbnail. The prosecution conceded that the deleted items had been deleted before the date of possession contained in the indictment, that P did not have the software to retrieve or to view the deleted files and the thumbnail images were only retrievable using specialist forensic techniques that would not have been available to the public. At the close of the prosecution case P submitted there was no case to answer in relation to the deleted items as none of the items were in his possession for the purposes of s.160(1) of the Act. The judge ruled there was a case to answer and that P possessed the files within the computer whether they were in an active or deleted category. P contended that a person could not commit the offence of the possession of indecent photographs on the hard drive of a computer unless the images were readily accessible to him for viewing at the time when they were said to be possessed. P further contended that a person who had at some stage in the past been in possession of such images but who had taken all reasonable steps to destroy them or make them irretrievable was no longer in possession of them.

HELD

Whilst the judge was right in refusing the submission of no case to answer, his summing up was flawed as he failed to direct the jury about the factual state of affairs necessary to constitute possession. In the case of deleted computer images if a person could not retrieve or gain access to an image then he no longer had custody or control of it. In interpreting the meaning of possession in s.160(1) of the Act there was no reason not to import the concept of having custody or control of the images. It would not be appropriate to say a person who could not retrieve an image from the hard drive was in possession of the image merely because he was in possession of the hard drive and the computer. It would be for a jury to determine whether a defendant had possession of the image at the relevant time in the sense of custody or control of the image. If at the alleged time of possession the image was beyond a defendant’s control then he would not possess it. It was for the jury to decide whether images were beyond the control of a defendant having regard to all the circumstances of the case, including his knowledge.

A full transcript is available here.

In August 2002 the Panel published its advice to the Court of Appeal.

The Court of Appeal clarified the definitions in relation to image level classifications.

The courts held that Level 1 as it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. Accordingly, with that amendment to the Panels proposals we categorise the relevant levels as:

(1)   Images depicting erotic posing with no sexual activity;

(2)   Sexual activity between children, or solo masturbation by a child;

(3)   Non-penetrative sexual activity between adults and children;

(4)   Penetrative sexual activity between children and adults;

(5)   Sadism or bestiality.

The implication of this judgement has been to remove nudity from the Level 1 offence however still retaining the element of erotic posing.

Neutral Citation Number: (2002) EWCA Crim 2766

Following R v Wild (2002) the Court of Appeal sought the views of the Sentencing Advisory Panel in relation to offences involving indecent photographs and pseudo images of children.  

On 30 April 2007 the Sentencing Guidelines Council published its Sexual Offences Act 2003 Definitive Guidelines. See page 109 for Part 6A: Indecent Photographs of Children including details of sentencing levels 1 - 5, guidelines for establishing the seriousness of child sexual abuse images.

These Guidelines were replaced on 1 April 2014 by the Sentencing Council’s Sexual Offences Definitive Guideline which outlines new definitions for the different categories of child sexual abuse imagery on page 75 in the section on Indecent Photographs of Children.

This case held that the downloading an indecent image of a child was an act of ‘making’ under the Protection of Children Act 1978.

It was accepted in the Bowden case that s.1(1)(a) of the 1978 Act covered those making pseudo-photographs who may have had no contact with the subjects of the images. But it also covered those making copies of photographs by knowingly copying the photograph. 

The wording in s.1 of the 1978 Act as amended was clear and unambiguous. The words "to make" had to be given their natural and ordinary meaning, and in the instant context that was "to cause to exist; to produce by action, to bring about". 

Downloading an indecent photograph from the Internet was "making a copy of an indecent photograph" since a copy of that photograph had been caused to exist on the computer to which it had been downloaded. 

A ‘pseudo photo’ is something that ‘appears’ to be a photo and ‘appears’ to show a child - even if it is not based on a child or indeed a real person. This means that electronically manipulated or created images will be caught 

The implications of this judgement were extensive - not only did it confirm that those downloading indecent images from the Internet were breaking the law, it also meant that law enforcement officers committed the same offence when they made a copy of the contents of suspects' computer disks. This led to amendments to the Protection of Children Act by the Sexual Offences Act 2003 to create a statutory defence where it was necessary "to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings". 

It also meant that those simply viewing Internet child pornography on their computer screens were committing the offence. In R v Jayson (CA, [2002] EWCA Crim 683) the Court of Appeal ruled that "the act of voluntarily downloading an indecent image from a web page on to a computer screen is an act of making a photograph or pseudo-photograph".

In this case the court held that the wording of the Protection of Children Act 1978 covered the use of the internet to distribute indecent images.

In R v Fellows and Arnold (1997) 1 CAR 244, the Court of Appeal had held that a computer file containing data that represented the original photograph in another form was "a copy of a photograph" as per section 7(2) of the 1978 Act. 

Therefore, downloading an indecent photograph from the internet was "making a copy of an indecent photograph" since a copy of that photograph had been caused to exist on the computer to which it had been downloaded. 

For a full transcript of the appeal court hearing on the case, please visit here.

This concluded that the act of deliberately downloading an image from the internet was "making an image". 

R v (1) Graham Westgarth SMITH (2) Mike JAYSON (2002)

SMITH: No offence of “making” or “being in possession of an indecent pseudo-photograph” was committed by opening an e-mail attachment, when the recipient was unaware that it contained or was likely to contain an indecent image.

JAYSON: The act of voluntarily downloading an indecent image from the internet to a computer screen was an act of making a photograph or pseudo-photograph because the computers operator, in so downloading, was causing the image to exist on the screen.

For a full transcript of the appeal court hearing on the case, please visit here. 

This is the first prosecution under the 2009 Coroners and Justice Act Section 64 (2009) for this type of non-photographic child abuse content.

In July 2011 Scotland Yard secured a Landmark victory after convicting Steven Freeman (57) of making indecent drawings of children. In this instance, the drawings included children being raped.  This is the first prosecution under the 2009 Coroners and Justice Act Section 64 (2009) for this type of non-photographic Child Abuse Content. Some 3000 drawings were found at the home of Freeman where images were also traded with other members of Freemans Pedophile network (PIE – Pedophile Information Exchange) which shared and traded in images. Freeman was given an indeterminate sentence with a minimum term of 30 months. 4 other members of the same group were also sentenced with terms ranging from 12 to 24 months. 

Police had originally raided Freeman’s house on a previous occasion in 2008 and Freeman was charged with the possession of Indecent Photographic Images, however as the 2009 Act had not come into force no specific action was able to be taken on the drawings. Once the Act came into force Police returned to Freeman’s house and secured the case against him. Although the images were not posted online, it demonstrates that it is an offence to be in possession of, and to distribute this form of content.