Indecent images deleted from computers, closure of premises and limits on power to direct groups to disperse

Does a person still “possess” indecent images after he has deleted them?

In R. v. Porter (Ross Warwick) (CLW/06/14/4) the Court of Appeal said that the answer to this question depends on whether the person is an expert in the use of computers. The appellant (who worked in the field of information technology) was convicted of possession of indecent images of children, contrary to section 160(1) of the Criminal Justice Act 1988. When the hard drive of one his computers was examined, it was found that he had placed a large number of indecent images in the “recycle bin,” which he had then “emptied.” The indictment alleged that he had “possessed” the images after he had done so. At the trial, the judge directed the jury that they did not need to consider whether the appellant “possessed” the images, because he physically possessed the hard drive on which they were stored; even though the images had been deleted, they were still stored on the hard drive and it was possible for them to be retrieved.

Quashing the conviction, the appeal court said that the question of whether the appellant had been in possession of the images should have been a question for the jury to determine themselves. Merely being in possession of the hard drive from which images had been deleted was not enough to put a person in possession of the images. “Possession” of indecent images would only be established if it could be said that the person had “custody or control” of them. If he had deleted them and could no longer retrieve or gain access to them, then he would no longer have possession of them. But if he was skilled in the use of computers and he owned the software capable of retrieving them, then he would retain possession.

CLW Comment

There is something obviously unsatisfactory about the answer to the question whether a person is in possession of deleted indecent photographs of children depending on his know-how. The computer expert would only be able to deprive himself of possession of files on his lap-top by chucking his lap-top away (into a river or the like). If he were to receive an unsolicited email with a file attached containing child pornography, and the name of the file unmistakeably suggested that it was child pornography, even if he were to delete the email without opening it or the attached file, he would, according to the court, continue to be in possession of the file and, because he could not deprive himself of possession thereof (save by getting rid of the computer), he would be unable to bring himself within section 160(2)(c) (“the photograph … was sent to him without any prior request made by him … and he did not keep it for an unreasonable time”). Why should the computer literate be in a worse position than the computer illiterate, where neither has the least interest in child pornography?

The problem may well have been thrown up by the manner in which the offence was charged in the instant case (by alleging possession after the images had been deleted). It is submitted that it would be preferable to relate any allegation of possession of files that have been deleted to the moment before they were deleted. At that moment, there should be no issue over possession, and the only issue would be as to whether the defendant was able to bring himself within one of the defences in subsection (2). The person who receives an unsolicited attachment containing child pornography, with a name that strongly suggests it is child pornography, would be able to bring himself within paragraph (c) if he deleted it immediately. If he did not do so, then the question whether he kept it for an unreasonable time would be for the tribunal of fact to decide. In the instant case, the appellant would not have been able to rely on this paragraph as he apparently solicited the images, and he would therefore have been convicted and there would have been no appeal against conviction (or at least there would not have been a successful appeal against conviction).

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