Times 21/6 Page 62 "Images beyond control not in possession"
deno, 21 Jun 2006 19:24:49
The Law Report in today's Times may be of interest and also save us the cost
of new hard drives! "COURT OF APPEAL Regina v Ross Porter, before Lord
Justice Dyson, Grigson and Walker.
Defendant worked in IT and built his own computers, on which police found
indecent images of children. Convicted by judge and jury at Snaresbrook Crown
Court April 26, 2005
Count 16 related to 3,575 still images and count 17 to 40 movie files. Some
of the files had been deleted in that they had been placed in the recycle
bin. Defendant did not have the software to retrieve or view the deleted
files in (should this be from?) the recycle bin , but could have obtained it.
The Crown conceded that still images saved in a database program and then
deleted were not in the defendant's possession because they were retrievable
only with specialist techniques and equipment provided by the US Federal
government and not available to the public.
Trial judge, rejecting a defence submission of no case to answer, held that
the files were in the defendant's possession if they remained on the hard
drive, which was in the custody of the defendant, even if they had been deleted
or lost and were therefore inactive.
His Lordship said the interpretation adopted by the judge could give rise to
consequences so unreasonable that their Lordships were not willing to accept
it..........
In the special case of deleted computer images, if a person could not
retrieve or gain access to an image he no longer had custody or control of it. He
had put it beyond his reach.........
Thus images emptied from the recycle bin might be considered to be within
the control of a defendant skilled in the use of computers and who owned the
necessary software to retrieve
them, whereas such images might be considered not within the control of a
defendant who did not possess those skills and own the software.
If the image was beyond his control, he would not possess it. If however it
was within his control, then he possessed it.
The Judge erred in failing to direct the jury on the factual state of
affairs necessary to constitute possession thereby wrongly removing a vital issue
from the jury. For these reasons the conviction on counts 16 and 17 would be
quashed."
deno posted 21st June
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