R v Ross, Warwick & 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.
Page Created: Wed, July 26th, 2006
Page Modified: Wed, July 26th, 2006
