Internet Crime Defence - Indecent Images
Nicholas Wragg, Crown Court Advocate at Mowbray Woodwards, recently represented a defendant at Bristol Crown Court for making indecent images of a child contrary to section 1(1)(a) of the Protection of Children Act 1978. The indictment contained three counts in respect of making such photographs in order for the Crown to best illustrate the nature of the defendant’s activity. The counts reflected the making of category A, B and C images. Images are categorised from A – C depending on the seriousness of the images. This particular defendant was found by forensic experts and through the categorisation of the police officer in the case to have nearly 200 category A images, nearly 200 category B images and over 2,000 category C images.
The defendant made full and frank admissions in interview but stated categorically that he had only saved a handful of category C images on his computer. Given the overwhelming evidence that there were nearly 2,000 images of all categories stored on his computer equipment one would have imagined he would face enormous difficulty in asserting that he had only saved a handful of category C images.
It is not difficult to see how very important a careful examination of a case such as this when considering the Sentencing Council Sexual Offences: Definitive Guidelines. In cases where a person has in their possession category A images the starting point for sentence is one year custody with a range of 26 weeks to three years custody. Surprisingly enough the total number of images in this case although seemingly high does not compare to cases where individuals are found to have tens or even hundreds of thousands of such images stored on their computer.
If the defendant in this case was right and the only images on his computer he stored were category C images then the sentence would be a high level community order with a range of medium level community order to 26 weeks custody. By pleading guilty at the earliest opportunity and arguably by making admissions at the police station it is eminently likely that a community order or suspended sentence of imprisonment would be appropriate in this case.
Having carefully taken our client’s instructions the true nature of this case became apparent. He was reminded that forensic science can be extremely effective in determining one’s activity on the internet. He remained resolute in his assertion that he had only actively stored category C images on his computer.
When one considers the law on making indecent images it can be seen that the act of making the indecent photograph must be a deliberate and intentional act done with the knowledge that the image made, is or is likely to be, an indecent photograph of a child. An example would be where somebody is clicking on adult pornography and links to other sites where “pop ups” frequently occur. If the defendant had clicked a link to a site and he did not know that any resulting pop ups would depict or be likely to depict indecent images of children then he would have a defence. In cases such as this where the defendant is actively searching for category C images and large amounts of category A images appear one has to consider whether there is any impact in sentence. There can be little doubt that simply by knowing that during his searches images would appear on his screen depicting indecent images of children at all levels, that he did in law make those images.
It was the opinion of those representing this defendant that there has to be a distinction between those who collect A, B and C images not just by making them, i.e. by causing them to appear on their computer screen but by also actively saving them on to their computer. In this case the defendant was exploring sites with the intention of viewing category C images and potentially saving them. He was not interested in saving category A or B images but knew that in his search for C images more serious images would undoubtedly be made.
The next issue revolves around how it can be that the defendant states he only saved a handful of category C images but nearly 2,500 category A, B and C images were stored on his computer.
Most people are aware that computers are far more complex than cameras. If one were to focus a camera at an image the image will not be stored on the camera until a button is pressed to take the photograph. Where a person searches the internet large amounts of data can be stored on their computer system automatically. Cookies for example are small files which are stored on a user’s computer. They are designed to hold a modest amount of data specific to a particular website and can be accessed by the webserver or the computer. Websites when first accessed can take longer to load up on your computer than when you access them a short time later on. This is because your computer will automatically store much of the images and other data to enable quicker access on a later occasion. You do not need to save these images to your computer to facilitate this process. The images are not saved in your documents folder and may not be saved as individual files. Over a short period of time a significant amount of images can be stored on your computer as temporary files without your knowledge. Therefore in this case when it was alleged by the Crown Prosecution Service that the defendant had nearly 2,000 category A, B and C images stored on his computer all but a handful had in fact been atomically saved to the computer without the defendant’s knowledge. Whilst technically the defendant had made all of the images there is a distinction to be made between somebody who actively searches for A, B and C images and saves them to their computer and somebody who is searching for C images resulting in the “making” of A and B images of which he has no interest in.
In this case detailed representations were made to the Crown Prosecution Service and a basis of plea was submitted for their consideration. A basis of plea is a document that confirms the defendant will be pleading guilty to an offence but on a basis other than that asserted by the Crown. In this case the basis pointed out the defendant had stored a handful of category C images but had on no occasion actively saved category A and B images. The importance of this distinction is revealed in the sentencing guideline which states “in most cases the intrinsic character of the most serious offending images will initially determine the appropriate category. If, however, the most serious images are unrepresentative of the offenders conduct a lower category may be appropriate. A lower category will not, however, be appropriate if the offender has produced or taken (for example) images of a higher category”.
The clear assertion to be made therefore is that whilst the defendant had undoubtedly made a number of category A and B images it is arguable that the most serious images i.e. the category A and B images were unrepresentative of the defendant’s conduct.
In this case the defendant, who was a man of good character, who had pleaded guilty at court at the earliest opportunity, and who had participated in various schemes to address his offending behaviour managed to avoid an immediate custodial sentence and instead received a suspended sentence and community order.
Nicholas Wragg states “I often observe cases dealt with by others very large amounts of images are referred to in court. Seldom do I see lawyers making representations for their clients that very significant amounts of these images might have been cache or temporary files, thumbnails or files saved other than by the direct intervention of their client. It is also interesting to note that the police and Crown Prosecution Service do not indicate in their papers which files have been stored by automatic processes and which have actively been stored by the defendant. Of course it is always shocking where the defendant is found to have indecent images on their computer and some might say that there is little difference between a person who has 10 and a person who has 10,000 such images. In reality the difference between 10 and 10,000 images can and should make a difference to the sentence because the purposeful storing of images are to the detriment of the victims who may not know of their existence, the fact that they are being endlessly copied and the fact that they can never be destroyed.”
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