R v Ross, Warwick and Porter
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.
