Is a person in possession of indecent images if he has deleted them from a floppy disk and does not have the skill to retrieve them?

“No”, said the Court of Appeal in R v Rowe (CLW/08/43/6).

Police officers, who were in possession of a warrant, visited the home where the defendant lived with his parents and searched the premises. They seized 20 floppy disks from his bedroom, eight of which contained a large number of deleted files containing images of child pornography. A total of 124 images were contained on the eight disks. Three of the disks contained a total of six movie files with pornographic images of children.

At the defendant’s trial on 12 counts of possession of an indecent photograph of a child, an officer from a computer crime unit gave detailed evidence about the material found on the disks. Among other things he explained that deleted images are not deleted completely until the space that the image occupies on the floppy disk has been used.

It was agreed that the defendant’s computer did not have the necessary software to enable him to recover the deleted images, and there was no evidence to suggest that he had the necessary specialist knowledge to enable him to access them. On appeal, the issue arose as to what effect the deletion of the images would have had on the defendant’s alleged possession of them.

The court considered the principles enunciated in R v. Porter, namely that for the purposes of this offence (i) a person possesses images if he has “custody or control” of them, (ii) a person does not have custody or control of indecent images stored on his hard disk drive where he has deleted those images and can no longer retrieve or gain access to them because he is neither sufficiently skilled in the use of computers nor owns software capable of retrieving them, and (iii) in such cases, possession is a question for the jury to determine, having regard to all the factors in the case, including the defendant’s knowledge and the particular circumstances.

The court then held that these principles apply equally to cases where images are stored on a floppy disk rather than a computer’s hard disk drive. Accordingly, the defendant’s convictions were quashed.