Indecent Images Acquittal
In August 2018 the police knocked on Mr S’s door with a warrant for his arrest. S had gone to work – his partner phoned him and he quickly returned, anxious to find out was going on.
On getting home he was arrested by two officers. They had received intelligence that he had been uploading indecent images of children using Chatstep, an online chatroom. Mr S protested his innocence. He had never used Chatstep and was not aware of any indecent images of children on his computer.
He was arrested and taken into custody. On the advice of his then solicitor he answered no comment to all questions asked. A large number of electronic devices were seized and sent off for forensic examination.
The results revealed that two devices contained a total of 15 Category A images 18 Category B images and 24 Category C images. No further interview was conducted and the defendant received a written requisition informing him that he had been charged with three offences of making indecent images of children. Needless to say, S was devastated.
S had used a duty solicitor at the police station. His partner researched online for specialist lawyers and located Mowbray Woodwards. We reassured her that we could assist anywhere in the country. Because of the distance we conducted a first conference with S using Skype. S was under immense strain. He had used the internet to view legal pornography but had no interest in indecent images of children. He had some specialist IT skills and had worked on other people’s computers in the past. He had often backed up peoples hard disk drives onto his when he worked. Perhaps that was why there were images on his system.
The defence instructed a forensic IT expert to consider the Crown’s evidence. The expert pointed out that the Crown’s forensic report indicated that none of the files were accessible to S. They had all been deleted. It was not known how they got onto his computer i.e. from downloading or copying. Similarly it was not known when they got onto the computer, whether they had been opened and viewed, what their filenames were and whether they had been created on different occasions or as one or more compressed files. The forensic report indicated that there were no search terms suggesting active searches for such material.
In conclusion there was little to show that S had created the files as a result of a deliberate and intentional act. The only matter the Crown could rely upon was that the images were found on S’s devices.
Prior to the first hearing at the Crown Court Mowbray Woodwards served a Defence Position Statement on the Court and Crown. It pointed out that there was insufficient evidence to prove that the images had been made by a deliberate and intentional act. The Crown indicated they would review the case in the coming weeks but decided to continue.
Despite a number of letters of representation the Crown doggedly hung on. Suddenly in February 2019 just a few days before trial the Crown served two statements. The first from an officer at the National Crime Agency gave evidence in respect of the use of S’s computer to upload indecent images onto Chatstep the statement indicated that the NCA had received a reference from the National Centre for Missing and Exploited Children. The NCMEC is an American non-governmental association that enables persons to make a report using its Cybertipline function. Under US federal law service providers are required to report instances of child sexual exploitation and abuse that they become aware of on their systems to the Cybertipline. Where the geographic location resolves to the UK the NCMEC will make a reference to the NCA. It appears that Chatstep reported to NCMEC who then reported to the NCA. It appears that S’s IP address had uploaded an indecent image onto Chatstep, a further statement from the Crown’s expert confirmed that the same image had been located on S’s computer.
Mowbray Woodwards immediately served an emergency skeleton argument on the court. The skeleton argument complained that the Crown had not acted in accordance with the Criminal Procedure Rules, were relying on hearsay without having made an application to the court and the late service and reliance on such evidence amounted to an abuse of process.
The Crown sought to list the case before the court the day before trial. Mowbray Woodwards objected strongly. It was too late in the day, both advocate and S were travelling to Durham the next day and accommodation had been booked. Representations were made to the Crown Court and the Judge who considered the correspondence agreed that it was inappropriate to list the case on the eve of trial. The Crown finally considered their position and decided to offer no evidence. The following day S was acquitted of all charges.
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