09 Mar 2018 Posted in

Defendant acquitted of making indecent images

Nicholas Wragg Posted by Nicholas Wragg, Associate Solicitor & Advocate, Criminal Law

Defendant acquitted of making indecent images

It was Mr C’s son who called us in a panic. His father had answered the door that morning to a group of plain clothed officers. They’d said they had received intelligence that he had been sharing indecent images of children.

We arranged an emergency conference and he and his son travelled from Wales to our offices. The National Crime Agency had received intelligence from abroad that the IP address associated with the family computer had been using Chatstep and Emule in circumstances where indecent images had been transferred.

We explained that the computers and phones seized would be assessed by the police’s in house forensic department and that it might take some months. Only a small number of close family were aware of the situation and we advised them to keep it that way. We also advised him to visit his GP. Eventually the police would get in touch and either invite him for an interview or drop the case if they found nothing.

We discussed press involvement and when they would get involved. We also advised him on how the investigation and any prosecution would proceed. We explained the scope and effect of the sex offenders register, future restrictions on employment and contact with children and potential sentences. This did not make Mr C any less worried but at least he was aware of the timescale and potential outcomes. We agreed we would contact the local police force and get ourselves on the record as representing. In future the police were to contact us.

Some months later Mr C was invited to the police station for a voluntary interview under caution. We attended and the police provided us with written disclosure. As usual the disclosure was sparse but the upshot was that the home computer and a USB drive contained deleted images located in unallocated clusters of each. We pressed the officers for more detail: what were the titles of the files, when were they made, could they be attributed to the actions of any one person, had the forensics uncovered any indicative search terms etc. The police were reluctant and would tell us little more. We came to the conclusion that they had little more they could say.

As a result we advised Mr C to give a no comment interview which was perfectly within his rights. In its stead and as a result of his instructions we prepared a written statement and read it to the officer in the case during the interview. In broad terms Mr C stated that he was not interested in indecent images of children and had never knowingly done anything that would result in an indecent image appearing on his computer. Images had appeared on his computer as a result of the actions of others i.e. whilst engaging with others in chat rooms people would occasionally post indecent images. In addition he had downloaded packages of what he believed to be adult pornography in zip format only to find that a small portion comprised indecent images. He had deleted them immediately.

Mr C was eventually charged to appear in the Magistrates Court where he pleaded not guilty to a number of offences of making indecent images of children.

The Crown’s forensic report was served and in addition to the indecent images referred to the presence of a number of extreme images (i.e bestiality).  Details were also given of the chat rooms that Mr C had entered and their current status i.e. whether or not they were banned. As part of the case management at the magistrates’ court it was pointed out on his behalf that the indecent images had no names, could not be attributed to a single user, that the computer was not password protected and that the household was so busy (including various overnight guests). The Crown nevertheless decided to proceed. Mr C maintained his not guilty plea.

We then instructed a computer expert to consider the report of the Crown’s expert. It was served in accordance with the Criminal Procedure Rules and the Crown eventually agreed that it could be read to the court and that the expert therefore would not have to attend. The defence expert report could not state who created the images but that didn’t matter: it is the Crown who must prove their case. The defence expert did however point out that it was impossible to determine when the images were created, whether there was anything in their titles indicative of their content and whether they had been downloaded as a batch. Finally the defence expert concluded that there was no evidence to suggest that the images had been created by an intentional and deliberate act.

On the day of trial the Crown were persuaded not to adduce evidence of the banned rooms as it was not relevant. Just because a room was banned didn’t mean that it had illegal content when the defendant was using it. They also agreed not to adduce evidence of the extreme images. Theoretically they could have done if they had made a bad character application but they had not. In any event the same problems arose in respect of the extreme images as did for the indecent images.

The Crown’s expert gave evidence. In cross examination he confirmed that the computer was not password protected and in principle it was impossible to know who made the images, when the images were made and whether they were made by a deliberate act. Following closure of the Crown’s case the Learned Judge enquired as to the force of the evidence and the Crown reluctantly offered no evidence. Mr C was acquitted.

Forensic computer evidence is often strong in cases such as this but occasionally whilst the Crown’s case might appear strong, careful analysis shows that the evidence is either inadmissible or will not stand up to scrutiny. Whilst the presence of indecent images might well be indicative of the commission of an offence the crown has to prove who made them and that they were deliberately made by someone who knew what they contained or were likely to contain.

 

To contact our specialist team, call 01225 485700 or email confidential@mowbraywoodwards.co.uk

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Nicholas Wragg

Nicholas Wragg

Associate Solicitor & Advocate, Criminal Law

01225 400666

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