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Re: [forensic-science] Interesting case law on deleted computer

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  • trewCO@compuserve.com
    The thrust is deleted data may not amount to possession and control . There are many who disagree.
    Message 1 of 6 , May 1, 2006
      The thrust is deleted data may not amount to "possession and control".
      There are many who disagree.

      ===========================================================================
      ===
      Neutral Citation Number: [2006] EWCA Crim 560
      Case No: 2005/02818/D3
      IN THE SUPREME COURT OF JUDICATURE
      COURT OF APPEAL (CRIMINAL DIVISION)
      ON APPEAL FROM SNARESBROOK CROWN COURT
      HIS HONOUR JUDGE BING
      Royal Courts of Justice
      Strand, London, WC2A 2LL
      16/03/2006
      B e f o r e :
      LORD JUSTICE DYSON
      MR JUSTICE GRIGSON
      and
      MR JUSTICE WALKER
      ____________________
      Between:
      Regina
      Respondent

      - and -


      Ross Warwick Porter
      Appellant

      ____________________
      Mr. A. Korda (instructed by C.P.S.) for the Respondent
      Mr. A. H. Milne (instructed by Messrs Edwards Duthie) for the Appellant
      Hearing dates : Monday 6th March 2006
      ____________________
      HTML VERSION OF JUDGMENT
      ____________________
      Crown Copyright ©
      Lord Justice Dyson : this is the judgment of the court.
      1. On 26 April 2005, the appellant was convicted at Snaresbrook Crown Court
      by a majority of ten to two on fifteen counts of making an indecent
      photograph of a child contrary to section 1(1)(a) of the Protection of
      Children Act 1978 and two counts (counts 16 and 17) of possessing indecent
      photographs of children contrary to section 160(1) of the Criminal Justice
      Act 1988 ("the 1988 Act"). With the leave of the single judge, he appeals
      in part against his convictions on counts 16 and 17. This appeal raises an
      important point as to the meaning of "possession" in section 160(1) of the
      1988 Act.
      2. So far as material, section 160 of the 1988 Act provides:
      "(1) Subject to subsection (1A), it is an offence for a person to have any
      indecent photograph or pseudo-photograph of a child in his possession.
      (2) Where a person is charged with an offence under subsection (1) above,
      it shall be a defence for him to prove-
      (a) that he had a legitimate reason for having the photograph or
      pseudo-photograph in his possession; or
      (b) that he had not himself seen the photograph or pseudo-photograph and
      did not know, nor had any cause to suspect, it to be indecent; or
      (c) that the photograph or pseudo-photograph was sent to him without any
      prior request made by him or on his behalf and he did not keep it for an
      unreasonable time."
      Section 160(7) provides that a "pseudo-photograph" means "an image, whether
      made by computer graphics or otherwise howsoever, which appears to be a
      photograph".
      The facts
      3. On 5 November 2002, the police raided the appellant's house and seized
      some hard drives and two computers (referred to as exhibits EOR31 and EOR
      43) which were linked to the internet almost permanently. The appellant
      worked in the field of information technology and had built two computers.
      3575 still images and 40 movie files of child pornography were recovered
      from the hard disk drives of the two computers. The still images were the
      subject of count 16 and the movie files the subject of count 17. The Crown
      chose to indict the appellant with possession on 5 November 2002 in these
      two counts.
      4. Of the 3575 still images, 2 were found in EOR31 and the remaining 3573
      in EOR43. The 2 still images found in EOR31 and 873 of the remaining 3573
      found in EOR43 had been deleted in the sense that they had been placed in
      the "recycle bin" of the computer which had then been emptied. The
      remaining 2700 still images were saved in a database of a programme called
      ACDSee. This programme is designed for viewing graphical images and is used
      by photographers. When opened in the "gallery view", the programme creates
      "thumbnail" images of the pictures viewed. These would originally have been
      larger images associated with each thumbnail. If one had clicked on the
      thumbnail, the larger image could have been viewed. All of the larger
      images had, however, been deleted. The effect of deleting the larger images
      was that the thumbnail could no longer be viewed in the gallery view. But a
      trace of each thumbnail ("the metadata") remained in the database of the
      programme.
      5. Of the 40 movie files, 7 were recovered from EOR31. All of these had
      been placed in the recycle bin which had then been emptied. The remaining
      33 files were recovered from EOR43: they had not been saved, but were
      recovered from the cache (temporary internet files) record of the two hard
      disk drives.
      6. It was conceded by the Crown that (i) all the deleted items had been
      deleted before 5 November 2002, (ii) the appellant did not have the
      software to retrieve or view the deleted still or movie files and (iii) the
      thumbnail images were only retrievable with the use of specialist forensic
      techniques and equipment provided by the US Federal Government which would
      not have been available to the public. It is common ground that the
      appellant could have acquired software to enable him to retrieve the items
      which had been emptied from the recycle bin. Such software could have been
      downloaded from the internet or otherwise purchased. There was no evidence
      that the appellant had attempted to do this.
      The trial
      7. At the close of the prosecution case, it was submitted on behalf of the
      appellant that there was no case to answer in relation to the entirety of
      the subject of count 16 and in relation to 7 of the movie files that were
      the subject of count 17. It was argued that none of these images was in the
      appellant's possession, since he had done all that he could do to divest
      himself of possession by placing them in the recycle bin which he had then
      emptied. It was conceded on his behalf that the 33 files that were in the
      cache were retrievable and were, therefore, in his possession. In rejecting
      these submissions, the judge said:
      "In my judgment, the determination of the submission should really be
      decided by analysing what, as Mr Douglas put in his slide show, is in the
      box. What is in the box is a hard drive. Within the hard drive there are
      files. Files in the hard drive may or may not include an index. Files are
      of three categories, operating files, application files and data files. For
      the purposes of this submission the photographs are, of course, data files
      and not application or operating system files.
      If a file is an active file then, in my judgment, the evidence has
      established that the user of the computer can without any real difficulty
      activate and engage the contents of the file on the hard drive; but, in my
      judgment, a file remains on the hard drive even if it has been deleted or
      lost because the evidence of Mr Douglas before the jury has been to that
      effect. A file does not cease to be a file on a hard drive if it has been
      deleted. It remains a file, albeit a deleted file.
      Therefore, the court interprets the word 'possession' in this sense; that
      the defendant possessed the files within his computer whether they were in
      an active category or a deleted category. The single point in this
      submission, therefore, fails….."
      8. In his summing up, the judge dealt with the issue of possession in the
      following way:
      "….possession, as a matter of law, in Count 16, means having something
      under your custody or control with the knowledge that you have such a thing
      in your custody and control and for practical purposes there is little
      difference in that definition and the definition of making, because as I
      defined to you in Counts 1 to 15, if a person deliberately and
      intentionally downloads an image, he makes that image and if that action is
      done with the knowledge that the downloaded image is or likely to be
      indecent, the offence is made out, but you must be sure, in relation to
      Count 16, that before you find the defendant 'guilty' of having custody or
      control on his hard disk of those images, that he knew that they were or
      likely to be indecent.
      And once again, members of the jury, the direction in relation to deleting
      the files, in relation to Count 16, applies in the same way as Counts 1 to
      15, because you have heard the experts tell you that the nature of a
      computer is that on the hard disk there are a number of files, data files.
      Such files may be active or deleted, recovered, lost or unallocated and the
      mere fact that an image is on a deleted file, rather than an active file,
      does not mean that the user is not in possession, because the file deleted
      or not, is one of the files he had on a hard disk which was in his
      possession, was his computer and his hard disk. The issue in this case, is
      whether he knew that the images were indecent, or likely to be indecent."
      The parties' submissions
      9. On behalf of the appellant, Mr Milne submits that a person does not
      commit the offence of possession of indecent photographs or
      pseudo-photographs on the hard disk drive of his computer unless the images
      are "readily accessible to the accused for viewing at the time when they
      are said to be possessed, or capable of being made so accessible without
      the need to obtain additional specialist software". He further submits that
      a person who has at some time in the past been in possession of such
      images, but who has taken all reasonable steps to destroy them or make them
      irretrievable by him (such as by placing them in the recycle bin of his
      computer and emptying the bin) is no longer in possession of them. Applying
      that approach to the facts of this case, Mr Milne does not seek to appeal
      against the conviction in relation to the 33 files in the cache that were
      the subject of count 17. But he says that the appeal should be allowed in
      respect of the remaining items in count 17 and all of the items that were
      the subject of count 16.
      10. On behalf of the Crown, Mr Korda submits that, so long as images remain
      on the hard disk drive and are recoverable and capable of being viewed,
      they are in the possession of a person who has control of the hard disk
      drive. Applying that approach to this case, Mr Korda concedes that the
      appellant was not in possession of the 2700 stills which were had been
      saved by the ACDSee programme. But he submits that the 7 movie files and
      875 still images which had been emptied from the recycle bin were in his
      possession.
      11. These rival assertions concern the physical state of affairs that is
      necessary in order to constitute the offence of possession contrary to
      section 160(1). The oral argument before us did not specifically address
      the mental element necessary to constitute the offence, although it is
      mentioned briefly in the appellant's amended skeleton argument.
      12. It should also be noted that the question before us would not have
      arisen if the appellant had been charged with possession during the period
      from the time when he viewed the images until he deleted them. At trial the
      Crown did not seek to amend the indictment to specify any such period. We
      have not sought any explanation for this, but we recognise that there may
      be practical reasons why the Crown would wish to be able to charge
      defendants with possession of images at the time when the computer in
      question is seized, rather than at some earlier date.
      The proper interpretation of section 160(1) of the 1988 Act
      13. In Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256,
      304F, Lord Pearce said:
      "Again Lord Parker CJ in Towers & Co Ltd v Gray [1961] 2 QB 361 after
      observing that the term "possession" is always giving rise to trouble, and
      after considering various cases there cited, concluded, rightly as I think,
      that in each case its meaning must depend on the context in which it is
      used".
      14. The apparently unqualified language of section 160(1) is in fact
      subject to certain qualifications. First, a person is not guilty of the
      offence of possession under section 160(1) unless he knows that he has the
      photographs or pseudo-photographs in his possession. This was decided by
      the Divisional Court in Atkins v Director of Public Prosecutions [2002] 2
      Cr App R 248, 261-262. Secondly, section 160(2) provides three defences.
      Section 160(2)(c) is of some significance: a person is not guilty of the
      offence of possessing an indecent photograph or pseudo-photograph if it was
      sent to him without any prior request by him or on his behalf and he did
      not keep it for an unreasonable time.
      15. The retention of hard copy indecent photographs of a child which are
      sent to a person without prior request presents no particular difficulty.
      It will be a matter for the jury on the facts of any individual case to
      decide whether the defendant who received such a photograph kept it for an
      unreasonable time. Once he knows that he has received it, the item will be
      in his possession until he has got rid of it, but he is not guilty of the
      offence if he gets rid of it within a reasonable time. The section
      160(2)(c) defence is only available where the photograph or
      pseudo-photograph is sent to the defendant without any prior request by him
      or on his behalf. It follows that if a hard copy photograph or
      pseudo-photograph is sent to a person at his request, then on the
      assumption that he knows that he has received it and that it is in his
      custody or control, he will be in breach of section 160(1) even if he gets
      rid of it within a reasonable time.
      16. But possession of indecent images of children on a computer presents
      special problems. It may seem superficially attractive to say that all that
      is required to prove a breach of section 160(1) of the 1988 Act is that, to
      the knowledge of the defendant, the images were on the defendant's hard
      disk drive within the computer which was in his custody and control at the
      material time. It can be argued that possession is an ordinary English word
      which should be given its normal meaning. Parliament has mitigated the
      harshness that would result from giving the word its normal meaning by
      expressly providing three defences in section 160(2) and impliedly
      providing that knowledge is an essential element of the offence. On this
      interpretation (which was adopted by the judge in the present case), the
      fact that the images may be difficult or even impossible to retrieve is
      irrelevant.
      17. But this interpretation could give rise to consequences so unreasonable
      that we are not willing to accept it unless we are compelled to do so by
      the express words of the statute or by necessary implication. Its
      unreasonableness is well illustrated by the present case. The only way in
      which the appellant could have retrieved the 2700 still images which had
      been saved by the ACDSee programme would have been by the use of specialist
      techniques and equipment supplied only with the authorisation of the US
      Federal Government and which were not available to the general public. It
      is accepted by the Crown that in reality the appellant could not have
      retrieved these images. In our judgment, it offends common sense to say
      that they were in the possession of the appellant on 5 November 2002. As we
      have said, Mr Korda does not so contend.
      18. It is not, however, necessary to postulate such an extreme example to
      demonstrate that the judge's view leads to unreasonable results. Suppose
      that a person receives unsolicited images of child pornography as an
      attachment to an email. He is shocked by what he sees and immediately
      deletes the attachment and deletes it from the recycle bin. Suppose further
      that he knows that the images are retrievable from the hard disk drive, but
      he believes that they can only be retrieved and removed by specialists who
      have software and equipment which he does not have. It does not occur to
      him to seek to acquire the software or engage a specialist for this
      purpose. So far as he is concerned, he has no intention of ever seeking to
      retrieve the images and he has done all that is reasonably necessary to
      make them irretrievable. We think that it would be surprising if Parliament
      had intended that such a person should be guilty of an offence under
      section 160(1) of the 1988 Act.
      19. Moreover, an interpretation which rendered such a person guilty of a
      breach of section 160(1) would sit uneasily with section 160(2)(c). This
      provision shows that Parliament intended that persons who inadvertently
      come into possession of images and get rid of them within a reasonable time
      are not guilty of the offence of possession. In these circumstances, it
      would be surprising if Parliament had intended that this defence should not
      be available to persons who inadvertently come into possession of images on
      their computers. But on the judge's interpretation, the section 160(2)(c)
      defence would not be available even to a person who had saved the images in
      ACDSee or in a similar programme. It is true that the defendant in the
      present case could not invoke section 160(2)(c) because he could not say
      that the images had not been sent to him at his request. But the point
      remains that, on the judge's interpretation, the section 160(2)(c) defence
      may be available to a defendant who has received hard copy photographs or
      pseudo-photographs and has adopted the simple remedy of getting rid of them
      within a reasonable time, whereas it is not available to a defendant who
      has received such images on his computer, even if they are saved in ACDSee
      or a similar programme, because the images are still on the hard disk drive
      of the computer.
      20. In our judgment, such an interpretation is not compelled either by the
      express words of the statute or by necessary implication. So what is the
      correct interpretation? In DPP v Brooks [1974] AC 862, 866H, Lord Diplock
      giving the judgment of the Privy Council said: "In the ordinary use of the
      word "possession", one has in one's possession whatever is, to one's
      knowledge, physically in one's custody or under one's physical control."
      That was said in the context of a case about unlawful possession of drugs.
      In a similar context and to similar effect, Lord Scarman said in R v
      Boyesen [1982] AC 768, 773H: "Possession is a deceptively simple concept.
      It denotes a physical control or custody of a thing plus knowledge that you
      have it in your custody or control."
      21. It is true that the context of possession of photographs or
      pseudo-photographs on the hard drive of a computer is different from the
      context of possession of drugs. Making allowance for those differences,
      however, in seeking to elucidate the meaning of "possession" in section
      160(1) in the present context, we see no reason not to import the concept
      of having custody or control of the images. In the special case of deleted
      computer images, if a person cannot retrieve or gain access to an image, in
      our view he no longer has custody or control of it. He has put it beyond
      his reach just as does a person who destroys or otherwise gets rid of a
      hard copy photograph. For this reason, it is not appropriate to say that a
      person who cannot retrieve an image from the hard disk drive is in
      possession of the image because he is in possession of the hard disk drive
      and the computer.
      22. It seems to us that both counsel in the present case were, in
      substance, adopting a test of custody or control, although they described
      it in terms of accessibility. The only difference between the formulations
      advanced by counsel is that Mr Milne argues for the less stringent test of
      reasonable accessibility; whereas Mr Korda contends for a simple test of
      accessibility. Our starting point in resolving this conflict is that the
      first question for the jury is whether the defendant in a case of this kind
      has possession of the image at the relevant time, in the sense of custody
      or control of the image at that time. If at the alleged time of possession
      the image is beyond his control, then for the reasons given earlier he will
      not possess it. If, however, at that time the image is within his control,
      for example, because he has the ability to produce it on his screen, to
      make a hard copy of it, or to send it to someone else, then he will possess
      it. It will be a matter for the jury to decide whether images are beyond
      the control of the defendant having regard to all the factors in the case,
      including his knowledge and particular circumstances. Thus, images which
      have been emptied from the recycle bin may be considered to be within the
      control of a defendant who is skilled in the use of computers and in fact
      owns the software necessary to retrieve such images; whereas such images
      may be considered not to be within the control of a defendant who does not
      possess these skills and does not own such software.
      23. We acknowledge that this introduces a subjective element into the
      concept of physical possession. But we note that the defences provided by
      section 160(2) import a consideration of the knowledge and behaviour of the
      particular defendant. Moreover, on any view, an important element of
      subjectivity is introduced by the requirement of knowledge. It follows that
      this is not an area where Parliament has enacted an absolute offence. In
      these circumstances, we see no objection to interpreting the word
      "possession" in the particular context of the possession of images in a
      computer as referring to images that are within the defendant's control.
      24. It will, therefore, be a matter for the jury to decide whether images
      on a hard disk drive are within the control of the defendant, and to do so
      having regard to all the circumstances of the case. Such is the speed at
      which computer technology is developing that what a jury may consider not
      to be within a defendant's control today may be considered by a jury to be
      within a defendant's control in the near future. Further, in the course of
      time more and more people will become skilled in the use of computers. This
      too will be a relevant factor for the jury to take into account.
      The outcome of this appeal
      25. It follows from what we have said that the judge was right not to
      accede to the submission that counts 16 and 17 should be withdrawn from the
      jury. But his summing up to the jury was flawed. He directed them that the
      only issue for them to decide was whether the defendant knew that the
      images were indecent or likely to be indecent. He did not direct them about
      the factual state of affairs necessary to constitute possession, and the
      result is that a vital issue was wrongly removed from the jury. Nor did he
      direct them about the mental element required to constitute possession. It
      seems to us that in principle this would require proof that the defendant
      did not believe that the image in question was beyond his control. However,
      as we have not heard argument on the point, we express no concluded view on
      it.
      26. For these reasons, the convictions on counts 16 and 17 must be quashed.
      The appeal is, therefore, allowed.
    • Ken Howard
      This seems like a very well thought out and reasonable ruling. Ken ... control . ... ===================================================================== ...
      Message 2 of 6 , May 1, 2006
        This seems like a very well thought out and reasonable ruling.

        Ken

        --- In forensic-science@yahoogroups.com, trewCO@... wrote:
        >
        >
        > The thrust is deleted data may not amount to "possession and
        control".
        > There are many who disagree.
        >
        >
        =====================================================================
        ======
        > ===
        > Neutral Citation Number: [2006] EWCA Crim 560
        > Case No: 2005/02818/D3
        > IN THE SUPREME COURT OF JUDICATURE
        > COURT OF APPEAL (CRIMINAL DIVISION)
        > ON APPEAL FROM SNARESBROOK CROWN COURT
        > HIS HONOUR JUDGE BING
        > Royal Courts of Justice
        > Strand, London, WC2A 2LL
        > 16/03/2006
        > B e f o r e :
        > LORD JUSTICE DYSON
        > MR JUSTICE GRIGSON
        > and
        > MR JUSTICE WALKER
        > ____________________
        > Between:
        > Regina
        > Respondent
        >
        > - and -
        >
        >
        > Ross Warwick Porter
        > Appellant
        >
        > ____________________
        > Mr. A. Korda (instructed by C.P.S.) for the Respondent
        > Mr. A. H. Milne (instructed by Messrs Edwards Duthie) for the
        Appellant
        > Hearing dates : Monday 6th March 2006
        > ____________________
        > HTML VERSION OF JUDGMENT
        > ____________________
        > Crown Copyright ©
        > Lord Justice Dyson : this is the judgment of the court.
        > 1. On 26 April 2005, the appellant was convicted at Snaresbrook
        Crown Court
        > by a majority of ten to two on fifteen counts of making an indecent
        > photograph of a child contrary to section 1(1)(a) of the
        Protection of
        > Children Act 1978 and two counts (counts 16 and 17) of possessing
        indecent
        > photographs of children contrary to section 160(1) of the Criminal
        Justice
        > Act 1988 ("the 1988 Act"). With the leave of the single judge, he
        appeals
        > in part against his convictions on counts 16 and 17. This appeal
        raises an
        > important point as to the meaning of "possession" in section 160
        (1) of the
        > 1988 Act.
        > 2. So far as material, section 160 of the 1988 Act provides:
        > "(1) Subject to subsection (1A), it is an offence for a person to
        have any
        > indecent photograph or pseudo-photograph of a child in his
        possession.
        > (2) Where a person is charged with an offence under subsection (1)
        above,
        > it shall be a defence for him to prove-
        > (a) that he had a legitimate reason for having the photograph or
        > pseudo-photograph in his possession; or
        > (b) that he had not himself seen the photograph or pseudo-
        photograph and
        > did not know, nor had any cause to suspect, it to be indecent; or
        > (c) that the photograph or pseudo-photograph was sent to him
        without any
        > prior request made by him or on his behalf and he did not keep it
        for an
        > unreasonable time."
        > Section 160(7) provides that a "pseudo-photograph" means "an
        image, whether
        > made by computer graphics or otherwise howsoever, which appears to
        be a
        > photograph".
        > The facts
        > 3. On 5 November 2002, the police raided the appellant's house and
        seized
        > some hard drives and two computers (referred to as exhibits EOR31
        and EOR
        > 43) which were linked to the internet almost permanently. The
        appellant
        > worked in the field of information technology and had built two
        computers.
        > 3575 still images and 40 movie files of child pornography were
        recovered
        > from the hard disk drives of the two computers. The still images
        were the
        > subject of count 16 and the movie files the subject of count 17.
        The Crown
        > chose to indict the appellant with possession on 5 November 2002
        in these
        > two counts.
        > 4. Of the 3575 still images, 2 were found in EOR31 and the
        remaining 3573
        > in EOR43. The 2 still images found in EOR31 and 873 of the
        remaining 3573
        > found in EOR43 had been deleted in the sense that they had been
        placed in
        > the "recycle bin" of the computer which had then been emptied. The
        > remaining 2700 still images were saved in a database of a
        programme called
        > ACDSee. This programme is designed for viewing graphical images
        and is used
        > by photographers. When opened in the "gallery view", the programme
        creates
        > "thumbnail" images of the pictures viewed. These would originally
        have been
        > larger images associated with each thumbnail. If one had clicked
        on the
        > thumbnail, the larger image could have been viewed. All of the
        larger
        > images had, however, been deleted. The effect of deleting the
        larger images
        > was that the thumbnail could no longer be viewed in the gallery
        view. But a
        > trace of each thumbnail ("the metadata") remained in the database
        of the
        > programme.
        > 5. Of the 40 movie files, 7 were recovered from EOR31. All of
        these had
        > been placed in the recycle bin which had then been emptied. The
        remaining
        > 33 files were recovered from EOR43: they had not been saved, but
        were
        > recovered from the cache (temporary internet files) record of the
        two hard
        > disk drives.
        > 6. It was conceded by the Crown that (i) all the deleted items had
        been
        > deleted before 5 November 2002, (ii) the appellant did not have the
        > software to retrieve or view the deleted still or movie files and
        (iii) the
        > thumbnail images were only retrievable with the use of specialist
        forensic
        > techniques and equipment provided by the US Federal Government
        which would
        > not have been available to the public. It is common ground that the
        > appellant could have acquired software to enable him to retrieve
        the items
        > which had been emptied from the recycle bin. Such software could
        have been
        > downloaded from the internet or otherwise purchased. There was no
        evidence
        > that the appellant had attempted to do this.
        > The trial
        > 7. At the close of the prosecution case, it was submitted on
        behalf of the
        > appellant that there was no case to answer in relation to the
        entirety of
        > the subject of count 16 and in relation to 7 of the movie files
        that were
        > the subject of count 17. It was argued that none of these images
        was in the
        > appellant's possession, since he had done all that he could do to
        divest
        > himself of possession by placing them in the recycle bin which he
        had then
        > emptied. It was conceded on his behalf that the 33 files that were
        in the
        > cache were retrievable and were, therefore, in his possession. In
        rejecting
        > these submissions, the judge said:
        > "In my judgment, the determination of the submission should really
        be
        > decided by analysing what, as Mr Douglas put in his slide show, is
        in the
        > box. What is in the box is a hard drive. Within the hard drive
        there are
        > files. Files in the hard drive may or may not include an index.
        Files are
        > of three categories, operating files, application files and data
        files. For
        > the purposes of this submission the photographs are, of course,
        data files
        > and not application or operating system files.
        > If a file is an active file then, in my judgment, the evidence has
        > established that the user of the computer can without any real
        difficulty
        > activate and engage the contents of the file on the hard drive;
        but, in my
        > judgment, a file remains on the hard drive even if it has been
        deleted or
        > lost because the evidence of Mr Douglas before the jury has been
        to that
        > effect. A file does not cease to be a file on a hard drive if it
        has been
        > deleted. It remains a file, albeit a deleted file.
        > Therefore, the court interprets the word 'possession' in this
        sense; that
        > the defendant possessed the files within his computer whether they
        were in
        > an active category or a deleted category. The single point in this
        > submission, therefore, fails….."
        > 8. In his summing up, the judge dealt with the issue of possession
        in the
        > following way:
        > "….possession, as a matter of law, in Count 16, means having
        something
        > under your custody or control with the knowledge that you have
        such a thing
        > in your custody and control and for practical purposes there is
        little
        > difference in that definition and the definition of making,
        because as I
        > defined to you in Counts 1 to 15, if a person deliberately and
        > intentionally downloads an image, he makes that image and if that
        action is
        > done with the knowledge that the downloaded image is or likely to
        be
        > indecent, the offence is made out, but you must be sure, in
        relation to
        > Count 16, that before you find the defendant 'guilty' of having
        custody or
        > control on his hard disk of those images, that he knew that they
        were or
        > likely to be indecent.
        > And once again, members of the jury, the direction in relation to
        deleting
        > the files, in relation to Count 16, applies in the same way as
        Counts 1 to
        > 15, because you have heard the experts tell you that the nature of
        a
        > computer is that on the hard disk there are a number of files,
        data files.
        > Such files may be active or deleted, recovered, lost or
        unallocated and the
        > mere fact that an image is on a deleted file, rather than an
        active file,
        > does not mean that the user is not in possession, because the file
        deleted
        > or not, is one of the files he had on a hard disk which was in his
        > possession, was his computer and his hard disk. The issue in this
        case, is
        > whether he knew that the images were indecent, or likely to be
        indecent."
        > The parties' submissions
        > 9. On behalf of the appellant, Mr Milne submits that a person does
        not
        > commit the offence of possession of indecent photographs or
        > pseudo-photographs on the hard disk drive of his computer unless
        the images
        > are "readily accessible to the accused for viewing at the time
        when they
        > are said to be possessed, or capable of being made so accessible
        without
        > the need to obtain additional specialist software". He further
        submits that
        > a person who has at some time in the past been in possession of
        such
        > images, but who has taken all reasonable steps to destroy them or
        make them
        > irretrievable by him (such as by placing them in the recycle bin
        of his
        > computer and emptying the bin) is no longer in possession of them.
        Applying
        > that approach to the facts of this case, Mr Milne does not seek to
        appeal
        > against the conviction in relation to the 33 files in the cache
        that were
        > the subject of count 17. But he says that the appeal should be
        allowed in
        > respect of the remaining items in count 17 and all of the items
        that were
        > the subject of count 16.
        > 10. On behalf of the Crown, Mr Korda submits that, so long as
        images remain
        > on the hard disk drive and are recoverable and capable of being
        viewed,
        > they are in the possession of a person who has control of the hard
        disk
        > drive. Applying that approach to this case, Mr Korda concedes that
        the
        > appellant was not in possession of the 2700 stills which were had
        been
        > saved by the ACDSee programme. But he submits that the 7 movie
        files and
        > 875 still images which had been emptied from the recycle bin were
        in his
        > possession.
        > 11. These rival assertions concern the physical state of affairs
        that is
        > necessary in order to constitute the offence of possession
        contrary to
        > section 160(1). The oral argument before us did not specifically
        address
        > the mental element necessary to constitute the offence, although
        it is
        > mentioned briefly in the appellant's amended skeleton argument.
        > 12. It should also be noted that the question before us would not
        have
        > arisen if the appellant had been charged with possession during
        the period
        > from the time when he viewed the images until he deleted them. At
        trial the
        > Crown did not seek to amend the indictment to specify any such
        period. We
        > have not sought any explanation for this, but we recognise that
        there may
        > be practical reasons why the Crown would wish to be able to charge
        > defendants with possession of images at the time when the computer
        in
        > question is seized, rather than at some earlier date.
        > The proper interpretation of section 160(1) of the 1988 Act
        > 13. In Warner v Commissioner of Police of the Metropolis [1969] 2
        AC 256,
        > 304F, Lord Pearce said:
        > "Again Lord Parker CJ in Towers & Co Ltd v Gray [1961] 2 QB 361
        after
        > observing that the term "possession" is always giving rise to
        trouble, and
        > after considering various cases there cited, concluded, rightly as
        I think,
        > that in each case its meaning must depend on the context in which
        it is
        > used".
        > 14. The apparently unqualified language of section 160(1) is in
        fact
        > subject to certain qualifications. First, a person is not guilty
        of the
        > offence of possession under section 160(1) unless he knows that he
        has the
        > photographs or pseudo-photographs in his possession. This was
        decided by
        > the Divisional Court in Atkins v Director of Public Prosecutions
        [2002] 2
        > Cr App R 248, 261-262. Secondly, section 160(2) provides three
        defences.
        > Section 160(2)(c) is of some significance: a person is not guilty
        of the
        > offence of possessing an indecent photograph or pseudo-photograph
        if it was
        > sent to him without any prior request by him or on his behalf and
        he did
        > not keep it for an unreasonable time.
        > 15. The retention of hard copy indecent photographs of a child
        which are
        > sent to a person without prior request presents no particular
        difficulty.
        > It will be a matter for the jury on the facts of any individual
        case to
        > decide whether the defendant who received such a photograph kept
        it for an
        > unreasonable time. Once he knows that he has received it, the item
        will be
        > in his possession until he has got rid of it, but he is not guilty
        of the
        > offence if he gets rid of it within a reasonable time. The section
        > 160(2)(c) defence is only available where the photograph or
        > pseudo-photograph is sent to the defendant without any prior
        request by him
        > or on his behalf. It follows that if a hard copy photograph or
        > pseudo-photograph is sent to a person at his request, then on the
        > assumption that he knows that he has received it and that it is in
        his
        > custody or control, he will be in breach of section 160(1) even if
        he gets
        > rid of it within a reasonable time.
        > 16. But possession of indecent images of children on a computer
        presents
        > special problems. It may seem superficially attractive to say that
        all that
        > is required to prove a breach of section 160(1) of the 1988 Act is
        that, to
        > the knowledge of the defendant, the images were on the defendant's
        hard
        > disk drive within the computer which was in his custody and
        control at the
        > material time. It can be argued that possession is an ordinary
        English word
        > which should be given its normal meaning. Parliament has mitigated
        the
        > harshness that would result from giving the word its normal
        meaning by
        > expressly providing three defences in section 160(2) and impliedly
        > providing that knowledge is an essential element of the offence.
        On this
        > interpretation (which was adopted by the judge in the present
        case), the
        > fact that the images may be difficult or even impossible to
        retrieve is
        > irrelevant.
        > 17. But this interpretation could give rise to consequences so
        unreasonable
        > that we are not willing to accept it unless we are compelled to do
        so by
        > the express words of the statute or by necessary implication. Its
        > unreasonableness is well illustrated by the present case. The only
        way in
        > which the appellant could have retrieved the 2700 still images
        which had
        > been saved by the ACDSee programme would have been by the use of
        specialist
        > techniques and equipment supplied only with the authorisation of
        the US
        > Federal Government and which were not available to the general
        public. It
        > is accepted by the Crown that in reality the appellant could not
        have
        > retrieved these images. In our judgment, it offends common sense
        to say
        > that they were in the possession of the appellant on 5 November
        2002. As we
        > have said, Mr Korda does not so contend.
        > 18. It is not, however, necessary to postulate such an extreme
        example to
        > demonstrate that the judge's view leads to unreasonable results.
        Suppose
        > that a person receives unsolicited images of child pornography as
        an
        > attachment to an email. He is shocked by what he sees and
        immediately
        > deletes the attachment and deletes it from the recycle bin.
        Suppose further
        > that he knows that the images are retrievable from the hard disk
        drive, but
        > he believes that they can only be retrieved and removed by
        specialists who
        > have software and equipment which he does not have. It does not
        occur to
        > him to seek to acquire the software or engage a specialist for this
        > purpose. So far as he is concerned, he has no intention of ever
        seeking to
        > retrieve the images and he has done all that is reasonably
        necessary to
        > make them irretrievable. We think that it would be surprising if
        Parliament
        > had intended that such a person should be guilty of an offence
        under
        > section 160(1) of the 1988 Act.
        > 19. Moreover, an interpretation which rendered such a person
        guilty of a
        > breach of section 160(1) would sit uneasily with section 160(2)
        (c). This
        > provision shows that Parliament intended that persons who
        inadvertently
        > come into possession of images and get rid of them within a
        reasonable time
        > are not guilty of the offence of possession. In these
        circumstances, it
        > would be surprising if Parliament had intended that this defence
        should not
        > be available to persons who inadvertently come into possession of
        images on
        > their computers. But on the judge's interpretation, the section 160
        (2)(c)
        > defence would not be available even to a person who had saved the
        images in
        > ACDSee or in a similar programme. It is true that the defendant in
        the
        > present case could not invoke section 160(2)(c) because he could
        not say
        > that the images had not been sent to him at his request. But the
        point
        > remains that, on the judge's interpretation, the section 160(2)(c)
        defence
        > may be available to a defendant who has received hard copy
        photographs or
        > pseudo-photographs and has adopted the simple remedy of getting
        rid of them
        > within a reasonable time, whereas it is not available to a
        defendant who
        > has received such images on his computer, even if they are saved
        in ACDSee
        > or a similar programme, because the images are still on the hard
        disk drive
        > of the computer.
        > 20. In our judgment, such an interpretation is not compelled
        either by the
        > express words of the statute or by necessary implication. So what
        is the
        > correct interpretation? In DPP v Brooks [1974] AC 862, 866H, Lord
        Diplock
        > giving the judgment of the Privy Council said: "In the ordinary
        use of the
        > word "possession", one has in one's possession whatever is, to
        one's
        > knowledge, physically in one's custody or under one's physical
        control."
        > That was said in the context of a case about unlawful possession
        of drugs.
        > In a similar context and to similar effect, Lord Scarman said in R
        v
        > Boyesen [1982] AC 768, 773H: "Possession is a deceptively simple
        concept.
        > It denotes a physical control or custody of a thing plus knowledge
        that you
        > have it in your custody or control."
        > 21. It is true that the context of possession of photographs or
        > pseudo-photographs on the hard drive of a computer is different
        from the
        > context of possession of drugs. Making allowance for those
        differences,
        > however, in seeking to elucidate the meaning of "possession" in
        section
        > 160(1) in the present context, we see no reason not to import the
        concept
        > of having custody or control of the images. In the special case of
        deleted
        > computer images, if a person cannot retrieve or gain access to an
        image, in
        > our view he no longer has custody or control of it. He has put it
        beyond
        > his reach just as does a person who destroys or otherwise gets rid
        of a
        > hard copy photograph. For this reason, it is not appropriate to
        say that a
        > person who cannot retrieve an image from the hard disk drive is in
        > possession of the image because he is in possession of the hard
        disk drive
        > and the computer.
        > 22. It seems to us that both counsel in the present case were, in
        > substance, adopting a test of custody or control, although they
        described
        > it in terms of accessibility. The only difference between the
        formulations
        > advanced by counsel is that Mr Milne argues for the less stringent
        test of
        > reasonable accessibility; whereas Mr Korda contends for a simple
        test of
        > accessibility. Our starting point in resolving this conflict is
        that the
        > first question for the jury is whether the defendant in a case of
        this kind
        > has possession of the image at the relevant time, in the sense of
        custody
        > or control of the image at that time. If at the alleged time of
        possession
        > the image is beyond his control, then for the reasons given
        earlier he will
        > not possess it. If, however, at that time the image is within his
        control,
        > for example, because he has the ability to produce it on his
        screen, to
        > make a hard copy of it, or to send it to someone else, then he
        will possess
        > it. It will be a matter for the jury to decide whether images are
        beyond
        > the control of the defendant having regard to all the factors in
        the case,
        > including his knowledge and particular circumstances. Thus, images
        which
        > have been emptied from the recycle bin may be considered to be
        within the
        > control of a defendant who is skilled in the use of computers and
        in fact
        > owns the software necessary to retrieve such images; whereas such
        images
        > may be considered not to be within the control of a defendant who
        does not
        > possess these skills and does not own such software.
        > 23. We acknowledge that this introduces a subjective element into
        the
        > concept of physical possession. But we note that the defences
        provided by
        > section 160(2) import a consideration of the knowledge and
        behaviour of the
        > particular defendant. Moreover, on any view, an important element
        of
        > subjectivity is introduced by the requirement of knowledge. It
        follows that
        > this is not an area where Parliament has enacted an absolute
        offence. In
        > these circumstances, we see no objection to interpreting the word
        > "possession" in the particular context of the possession of images
        in a
        > computer as referring to images that are within the defendant's
        control.
        > 24. It will, therefore, be a matter for the jury to decide whether
        images
        > on a hard disk drive are within the control of the defendant, and
        to do so
        > having regard to all the circumstances of the case. Such is the
        speed at
        > which computer technology is developing that what a jury may
        consider not
        > to be within a defendant's control today may be considered by a
        jury to be
        > within a defendant's control in the near future. Further, in the
        course of
        > time more and more people will become skilled in the use of
        computers. This
        > too will be a relevant factor for the jury to take into account.
        > The outcome of this appeal
        > 25. It follows from what we have said that the judge was right not
        to
        > accede to the submission that counts 16 and 17 should be withdrawn
        from the
        > jury. But his summing up to the jury was flawed. He directed them
        that the
        > only issue for them to decide was whether the defendant knew that
        the
        > images were indecent or likely to be indecent. He did not direct
        them about
        > the factual state of affairs necessary to constitute possession,
        and the
        > result is that a vital issue was wrongly removed from the jury.
        Nor did he
        > direct them about the mental element required to constitute
        possession. It
        > seems to us that in principle this would require proof that the
        defendant
        > did not believe that the image in question was beyond his control.
        However,
        > as we have not heard argument on the point, we express no
        concluded view on
        > it.
        > 26. For these reasons, the convictions on counts 16 and 17 must be
        quashed.
        > The appeal is, therefore, allowed.
        >
      • biocrim@yahoo.com
        This seems like a very well thought out and reasonable ruling. Ken ... control . ... ===================================================================== ...
        Message 3 of 6 , May 1, 2006
          This seems like a very well thought out and reasonable ruling.

          Ken

          --- In forensic-science@yahoogroups.com, trewCO@... wrote:
          >
          >
          > The thrust is deleted data may not amount to "possession and
          control".
          > There are many who disagree.
          >
          >
          =====================================================================
          ======
          > ===
          > Neutral Citation Number: [2006] EWCA Crim 560
          > Case No: 2005/02818/D3
          > IN THE SUPREME COURT OF JUDICATURE
          > COURT OF APPEAL (CRIMINAL DIVISION)
          > ON APPEAL FROM SNARESBROOK CROWN COURT
          > HIS HONOUR JUDGE BING
          > Royal Courts of Justice
          > Strand, London, WC2A 2LL
          > 16/03/2006
          > B e f o r e :
          > LORD JUSTICE DYSON
          > MR JUSTICE GRIGSON
          > and
          > MR JUSTICE WALKER
          > ____________________
          > Between:
          > Regina
          > Respondent
          >
          > - and -
          >
          >
          > Ross Warwick Porter
          > Appellant
          >
          > ____________________
          > Mr. A. Korda (instructed by C.P.S.) for the Respondent
          > Mr. A. H. Milne (instructed by Messrs Edwards Duthie) for the
          Appellant
          > Hearing dates : Monday 6th March 2006
          > ____________________
          > HTML VERSION OF JUDGMENT
          > ____________________
          > Crown Copyright ©
          > Lord Justice Dyson : this is the judgment of the court.
          > 1. On 26 April 2005, the appellant was convicted at Snaresbrook
          Crown Court
          > by a majority of ten to two on fifteen counts of making an indecent
          > photograph of a child contrary to section 1(1)(a) of the
          Protection of
          > Children Act 1978 and two counts (counts 16 and 17) of possessing
          indecent
          > photographs of children contrary to section 160(1) of the Criminal
          Justice
          > Act 1988 ("the 1988 Act"). With the leave of the single judge, he
          appeals
          > in part against his convictions on counts 16 and 17. This appeal
          raises an
          > important point as to the meaning of "possession" in section 160
          (1) of the
          > 1988 Act.
          > 2. So far as material, section 160 of the 1988 Act provides:
          > "(1) Subject to subsection (1A), it is an offence for a person to
          have any
          > indecent photograph or pseudo-photograph of a child in his
          possession.
          > (2) Where a person is charged with an offence under subsection (1)
          above,
          > it shall be a defence for him to prove-
          > (a) that he had a legitimate reason for having the photograph or
          > pseudo-photograph in his possession; or
          > (b) that he had not himself seen the photograph or pseudo-
          photograph and
          > did not know, nor had any cause to suspect, it to be indecent; or
          > (c) that the photograph or pseudo-photograph was sent to him
          without any
          > prior request made by him or on his behalf and he did not keep it
          for an
          > unreasonable time."
          > Section 160(7) provides that a "pseudo-photograph" means "an
          image, whether
          > made by computer graphics or otherwise howsoever, which appears to
          be a
          > photograph".
          > The facts
          > 3. On 5 November 2002, the police raided the appellant's house and
          seized
          > some hard drives and two computers (referred to as exhibits EOR31
          and EOR
          > 43) which were linked to the internet almost permanently. The
          appellant
          > worked in the field of information technology and had built two
          computers.
          > 3575 still images and 40 movie files of child pornography were
          recovered
          > from the hard disk drives of the two computers. The still images
          were the
          > subject of count 16 and the movie files the subject of count 17.
          The Crown
          > chose to indict the appellant with possession on 5 November 2002
          in these
          > two counts.
          > 4. Of the 3575 still images, 2 were found in EOR31 and the
          remaining 3573
          > in EOR43. The 2 still images found in EOR31 and 873 of the
          remaining 3573
          > found in EOR43 had been deleted in the sense that they had been
          placed in
          > the "recycle bin" of the computer which had then been emptied. The
          > remaining 2700 still images were saved in a database of a
          programme called
          > ACDSee. This programme is designed for viewing graphical images
          and is used
          > by photographers. When opened in the "gallery view", the programme
          creates
          > "thumbnail" images of the pictures viewed. These would originally
          have been
          > larger images associated with each thumbnail. If one had clicked
          on the
          > thumbnail, the larger image could have been viewed. All of the
          larger
          > images had, however, been deleted. The effect of deleting the
          larger images
          > was that the thumbnail could no longer be viewed in the gallery
          view. But a
          > trace of each thumbnail ("the metadata") remained in the database
          of the
          > programme.
          > 5. Of the 40 movie files, 7 were recovered from EOR31. All of
          these had
          > been placed in the recycle bin which had then been emptied. The
          remaining
          > 33 files were recovered from EOR43: they had not been saved, but
          were
          > recovered from the cache (temporary internet files) record of the
          two hard
          > disk drives.
          > 6. It was conceded by the Crown that (i) all the deleted items had
          been
          > deleted before 5 November 2002, (ii) the appellant did not have the
          > software to retrieve or view the deleted still or movie files and
          (iii) the
          > thumbnail images were only retrievable with the use of specialist
          forensic
          > techniques and equipment provided by the US Federal Government
          which would
          > not have been available to the public. It is common ground that the
          > appellant could have acquired software to enable him to retrieve
          the items
          > which had been emptied from the recycle bin. Such software could
          have been
          > downloaded from the internet or otherwise purchased. There was no
          evidence
          > that the appellant had attempted to do this.
          > The trial
          > 7. At the close of the prosecution case, it was submitted on
          behalf of the
          > appellant that there was no case to answer in relation to the
          entirety of
          > the subject of count 16 and in relation to 7 of the movie files
          that were
          > the subject of count 17. It was argued that none of these images
          was in the
          > appellant's possession, since he had done all that he could do to
          divest
          > himself of possession by placing them in the recycle bin which he
          had then
          > emptied. It was conceded on his behalf that the 33 files that were
          in the
          > cache were retrievable and were, therefore, in his possession. In
          rejecting
          > these submissions, the judge said:
          > "In my judgment, the determination of the submission should really
          be
          > decided by analysing what, as Mr Douglas put in his slide show, is
          in the
          > box. What is in the box is a hard drive. Within the hard drive
          there are
          > files. Files in the hard drive may or may not include an index.
          Files are
          > of three categories, operating files, application files and data
          files. For
          > the purposes of this submission the photographs are, of course,
          data files
          > and not application or operating system files.
          > If a file is an active file then, in my judgment, the evidence has
          > established that the user of the computer can without any real
          difficulty
          > activate and engage the contents of the file on the hard drive;
          but, in my
          > judgment, a file remains on the hard drive even if it has been
          deleted or
          > lost because the evidence of Mr Douglas before the jury has been
          to that
          > effect. A file does not cease to be a file on a hard drive if it
          has been
          > deleted. It remains a file, albeit a deleted file.
          > Therefore, the court interprets the word 'possession' in this
          sense; that
          > the defendant possessed the files within his computer whether they
          were in
          > an active category or a deleted category. The single point in this
          > submission, therefore, fails.."
          > 8. In his summing up, the judge dealt with the issue of possession
          in the
          > following way:
          > ".possession, as a matter of law, in Count 16, means having
          something
          > under your custody or control with the knowledge that you have
          such a thing
          > in your custody and control and for practical purposes there is
          little
          > difference in that definition and the definition of making,
          because as I
          > defined to you in Counts 1 to 15, if a person deliberately and
          > intentionally downloads an image, he makes that image and if that
          action is
          > done with the knowledge that the downloaded image is or likely to
          be
          > indecent, the offence is made out, but you must be sure, in
          relation to
          > Count 16, that before you find the defendant 'guilty' of having
          custody or
          > control on his hard disk of those images, that he knew that they
          were or
          > likely to be indecent.
          > And once again, members of the jury, the direction in relation to
          deleting
          > the files, in relation to Count 16, applies in the same way as
          Counts 1 to
          > 15, because you have heard the experts tell you that the nature of
          a
          > computer is that on the hard disk there are a number of files,
          data files.
          > Such files may be active or deleted, recovered, lost or
          unallocated and the
          > mere fact that an image is on a deleted file, rather than an
          active file,
          > does not mean that the user is not in possession, because the file
          deleted
          > or not, is one of the files he had on a hard disk which was in his
          > possession, was his computer and his hard disk. The issue in this
          case, is
          > whether he knew that the images were indecent, or likely to be
          indecent."
          > The parties' submissions
          > 9. On behalf of the appellant, Mr Milne submits that a person does
          not
          > commit the offence of possession of indecent photographs or
          > pseudo-photographs on the hard disk drive of his computer unless
          the images
          > are "readily accessible to the accused for viewing at the time
          when they
          > are said to be possessed, or capable of being made so accessible
          without
          > the need to obtain additional specialist software". He further
          submits that
          > a person who has at some time in the past been in possession of
          such
          > images, but who has taken all reasonable steps to destroy them or
          make them
          > irretrievable by him (such as by placing them in the recycle bin
          of his
          > computer and emptying the bin) is no longer in possession of them.
          Applying
          > that approach to the facts of this case, Mr Milne does not seek to
          appeal
          > against the conviction in relation to the 33 files in the cache
          that were
          > the subject of count 17. But he says that the appeal should be
          allowed in
          > respect of the remaining items in count 17 and all of the items
          that were
          > the subject of count 16.
          > 10. On behalf of the Crown, Mr Korda submits that, so long as
          images remain
          > on the hard disk drive and are recoverable and capable of being
          viewed,
          > they are in the possession of a person who has control of the hard
          disk
          > drive. Applying that approach to this case, Mr Korda concedes that
          the
          > appellant was not in possession of the 2700 stills which were had
          been
          > saved by the ACDSee programme. But he submits that the 7 movie
          files and
          > 875 still images which had been emptied from the recycle bin were
          in his
          > possession.
          > 11. These rival assertions concern the physical state of affairs
          that is
          > necessary in order to constitute the offence of possession
          contrary to
          > section 160(1). The oral argument before us did not specifically
          address
          > the mental element necessary to constitute the offence, although
          it is
          > mentioned briefly in the appellant's amended skeleton argument.
          > 12. It should also be noted that the question before us would not
          have
          > arisen if the appellant had been charged with possession during
          the period
          > from the time when he viewed the images until he deleted them. At
          trial the
          > Crown did not seek to amend the indictment to specify any such
          period. We
          > have not sought any explanation for this, but we recognise that
          there may
          > be practical reasons why the Crown would wish to be able to charge
          > defendants with possession of images at the time when the computer
          in
          > question is seized, rather than at some earlier date.
          > The proper interpretation of section 160(1) of the 1988 Act
          > 13. In Warner v Commissioner of Police of the Metropolis [1969] 2
          AC 256,
          > 304F, Lord Pearce said:
          > "Again Lord Parker CJ in Towers & Co Ltd v Gray [1961] 2 QB 361
          after
          > observing that the term "possession" is always giving rise to
          trouble, and
          > after considering various cases there cited, concluded, rightly as
          I think,
          > that in each case its meaning must depend on the context in which
          it is
          > used".
          > 14. The apparently unqualified language of section 160(1) is in
          fact
          > subject to certain qualifications. First, a person is not guilty
          of the
          > offence of possession under section 160(1) unless he knows that he
          has the
          > photographs or pseudo-photographs in his possession. This was
          decided by
          > the Divisional Court in Atkins v Director of Public Prosecutions
          [2002] 2
          > Cr App R 248, 261-262. Secondly, section 160(2) provides three
          defences.
          > Section 160(2)(c) is of some significance: a person is not guilty
          of the
          > offence of possessing an indecent photograph or pseudo-photograph
          if it was
          > sent to him without any prior request by him or on his behalf and
          he did
          > not keep it for an unreasonable time.
          > 15. The retention of hard copy indecent photographs of a child
          which are
          > sent to a person without prior request presents no particular
          difficulty.
          > It will be a matter for the jury on the facts of any individual
          case to
          > decide whether the defendant who received such a photograph kept
          it for an
          > unreasonable time. Once he knows that he has received it, the item
          will be
          > in his possession until he has got rid of it, but he is not guilty
          of the
          > offence if he gets rid of it within a reasonable time. The section
          > 160(2)(c) defence is only available where the photograph or
          > pseudo-photograph is sent to the defendant without any prior
          request by him
          > or on his behalf. It follows that if a hard copy photograph or
          > pseudo-photograph is sent to a person at his request, then on the
          > assumption that he knows that he has received it and that it is in
          his
          > custody or control, he will be in breach of section 160(1) even if
          he gets
          > rid of it within a reasonable time.
          > 16. But possession of indecent images of children on a computer
          presents
          > special problems. It may seem superficially attractive to say that
          all that
          > is required to prove a breach of section 160(1) of the 1988 Act is
          that, to
          > the knowledge of the defendant, the images were on the defendant's
          hard
          > disk drive within the computer which was in his custody and
          control at the
          > material time. It can be argued that possession is an ordinary
          English word
          > which should be given its normal meaning. Parliament has mitigated
          the
          > harshness that would result from giving the word its normal
          meaning by
          > expressly providing three defences in section 160(2) and impliedly
          > providing that knowledge is an essential element of the offence.
          On this
          > interpretation (which was adopted by the judge in the present
          case), the
          > fact that the images may be difficult or even impossible to
          retrieve is
          > irrelevant.
          > 17. But this interpretation could give rise to consequences so
          unreasonable
          > that we are not willing to accept it unless we are compelled to do
          so by
          > the express words of the statute or by necessary implication. Its
          > unreasonableness is well illustrated by the present case. The only
          way in
          > which the appellant could have retrieved the 2700 still images
          which had
          > been saved by the ACDSee programme would have been by the use of
          specialist
          > techniques and equipment supplied only with the authorisation of
          the US
          > Federal Government and which were not available to the general
          public. It
          > is accepted by the Crown that in reality the appellant could not
          have
          > retrieved these images. In our judgment, it offends common sense
          to say
          > that they were in the possession of the appellant on 5 November
          2002. As we
          > have said, Mr Korda does not so contend.
          > 18. It is not, however, necessary to postulate such an extreme
          example to
          > demonstrate that the judge's view leads to unreasonable results.
          Suppose
          > that a person receives unsolicited images of child pornography as
          an
          > attachment to an email. He is shocked by what he sees and
          immediately
          > deletes the attachment and deletes it from the recycle bin.
          Suppose further
          > that he knows that the images are retrievable from the hard disk
          drive, but
          > he believes that they can only be retrieved and removed by
          specialists who
          > have software and equipment which he does not have. It does not
          occur to
          > him to seek to acquire the software or engage a specialist for this
          > purpose. So far as he is concerned, he has no intention of ever
          seeking to
          > retrieve the images and he has done all that is reasonably
          necessary to
          > make them irretrievable. We think that it would be surprising if
          Parliament
          > had intended that such a person should be guilty of an offence
          under
          > section 160(1) of the 1988 Act.
          > 19. Moreover, an interpretation which rendered such a person
          guilty of a
          > breach of section 160(1) would sit uneasily with section 160(2)
          (c). This
          > provision shows that Parliament intended that persons who
          inadvertently
          > come into possession of images and get rid of them within a
          reasonable time
          > are not guilty of the offence of possession. In these
          circumstances, it
          > would be surprising if Parliament had intended that this defence
          should not
          > be available to persons who inadvertently come into possession of
          images on
          > their computers. But on the judge's interpretation, the section 160
          (2)(c)
          > defence would not be available even to a person who had saved the
          images in
          > ACDSee or in a similar programme. It is true that the defendant in
          the
          > present case could not invoke section 160(2)(c) because he could
          not say
          > that the images had not been sent to him at his request. But the
          point
          > remains that, on the judge's interpretation, the section 160(2)(c)
          defence
          > may be available to a defendant who has received hard copy
          photographs or
          > pseudo-photographs and has adopted the simple remedy of getting
          rid of them
          > within a reasonable time, whereas it is not available to a
          defendant who
          > has received such images on his computer, even if they are saved
          in ACDSee
          > or a similar programme, because the images are still on the hard
          disk drive
          > of the computer.
          > 20. In our judgment, such an interpretation is not compelled
          either by the
          > express words of the statute or by necessary implication. So what
          is the
          > correct interpretation? In DPP v Brooks [1974] AC 862, 866H, Lord
          Diplock
          > giving the judgment of the Privy Council said: "In the ordinary
          use of the
          > word "possession", one has in one's possession whatever is, to
          one's
          > knowledge, physically in one's custody or under one's physical
          control."
          > That was said in the context of a case about unlawful possession
          of drugs.
          > In a similar context and to similar effect, Lord Scarman said in R
          v
          > Boyesen [1982] AC 768, 773H: "Possession is a deceptively simple
          concept.
          > It denotes a physical control or custody of a thing plus knowledge
          that you
          > have it in your custody or control."
          > 21. It is true that the context of possession of photographs or
          > pseudo-photographs on the hard drive of a computer is different
          from the
          > context of possession of drugs. Making allowance for those
          differences,
          > however, in seeking to elucidate the meaning of "possession" in
          section
          > 160(1) in the present context, we see no reason not to import the
          concept
          > of having custody or control of the images. In the special case of
          deleted
          > computer images, if a person cannot retrieve or gain access to an
          image, in
          > our view he no longer has custody or control of it. He has put it
          beyond
          > his reach just as does a person who destroys or otherwise gets rid
          of a
          > hard copy photograph. For this reason, it is not appropriate to
          say that a
          > person who cannot retrieve an image from the hard disk drive is in
          > possession of the image because he is in possession of the hard
          disk drive
          > and the computer.
          > 22. It seems to us that both counsel in the present case were, in
          > substance, adopting a test of custody or control, although they
          described
          > it in terms of accessibility. The only difference between the
          formulations
          > advanced by counsel is that Mr Milne argues for the less stringent
          test of
          > reasonable accessibility; whereas Mr Korda contends for a simple
          test of
          > accessibility. Our starting point in resolving this conflict is
          that the
          > first question for the jury is whether the defendant in a case of
          this kind
          > has possession of the image at the relevant time, in the sense of
          custody
          > or control of the image at that time. If at the alleged time of
          possession
          > the image is beyond his control, then for the reasons given
          earlier he will
          > not possess it. If, however, at that time the image is within his
          control,
          > for example, because he has the ability to produce it on his
          screen, to
          > make a hard copy of it, or to send it to someone else, then he
          will possess
          > it. It will be a matter for the jury to decide whether images are
          beyond
          > the control of the defendant having regard to all the factors in
          the case,
          > including his knowledge and particular circumstances. Thus, images
          which
          > have been emptied from the recycle bin may be considered to be
          within the
          > control of a defendant who is skilled in the use of computers and
          in fact
          > owns the software necessary to retrieve such images; whereas such
          images
          > may be considered not to be within the control of a defendant who
          does not
          > possess these skills and does not own such software.
          > 23. We acknowledge that this introduces a subjective element into
          the
          > concept of physical possession. But we note that the defences
          provided by
          > section 160(2) import a consideration of the knowledge and
          behaviour of the
          > particular defendant. Moreover, on any view, an important element
          of
          > subjectivity is introduced by the requirement of knowledge. It
          follows that
          > this is not an area where Parliament has enacted an absolute
          offence. In
          > these circumstances, we see no objection to interpreting the word
          > "possession" in the particular context of the possession of images
          in a
          > computer as referring to images that are within the defendant's
          control.
          > 24. It will, therefore, be a matter for the jury to decide whether
          images
          > on a hard disk drive are within the control of the defendant, and
          to do so
          > having regard to all the circumstances of the case. Such is the
          speed at
          > which computer technology is developing that what a jury may
          consider not
          > to be within a defendant's control today may be considered by a
          jury to be
          > within a defendant's control in the near future. Further, in the
          course of
          > time more and more people will become skilled in the use of
          computers. This
          > too will be a relevant factor for the jury to take into account.
          > The outcome of this appeal
          > 25. It follows from what we have said that the judge was right not
          to
          > accede to the submission that counts 16 and 17 should be withdrawn
          from the
          > jury. But his summing up to the jury was flawed. He directed them
          that the
          > only issue for them to decide was whether the defendant knew that
          the
          > images were indecent or likely to be indecent. He did not direct
          them about
          > the factual state of affairs necessary to constitute possession,
          and the
          > result is that a vital issue was wrongly removed from the jury.
          Nor did he
          > direct them about the mental element required to constitute
          possession. It
          > seems to us that in principle this would require proof that the
          defendant
          > did not believe that the image in question was beyond his control.
          However,
          > as we have not heard argument on the point, we express no
          concluded view on
          > it.
          > 26. For these reasons, the convictions on counts 16 and 17 must be
          quashed.
          > The appeal is, therefore, allowed.
          >






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          AdmID:2EA6DB8D7845992D31CA3FF9A1B5F6D3


          [Non-text portions of this message have been removed]
        • trewCO@compuserve.com
          ... I agree Ken. I thought the Judges did very well going through the logical processes of deletion, looking at the instances where the data cannot be
          Message 4 of 6 , May 2, 2006
            >This seems like a very well thought out and reasonable ruling.<
            I agree Ken.

            I thought the Judges did very well going through the logical processes of
            deletion,
            looking at the instances where the data cannot be recovered in ordinary
            circumstances
            and then use that for possession and control.

            The issue of the specialists software did seem a bit suspect, but then
            again the Judges
            are only using the information provided in evidence.

            The hue and cry was that 'intention' and 'historical possession' wasn't
            argued, etc etc.

            Greg

            -------------Forwarded Message-----------------

            From: INTERNET:forensic-science@yahoogroups.com,
            INTERNET:forensic-science@yahoogroups.com
            To: , INTERNET:forensic-science@yahoogroups.com
            Date: 02/05/06 01:55 PM
            RE: [forensic-science] Re: Interesting case law on deleted computer


            This seems like a very well thought out and reasonable ruling.

            Ken

            --- In forensic-science@yahoogroups.com, trewCO@... wrote:
            >
            >
            > The thrust is deleted data may not amount to "possession and
            control".
            > There are many who disagree.
            >
            >
            =====================================================================
            ======
            > ===
            > Neutral Citation Number: [2006] EWCA Crim 560
            > Case No: 2005/02818/D3
            > IN THE SUPREME COURT OF JUDICATURE
            > COURT OF APPEAL (CRIMINAL DIVISION)
            > ON APPEAL FROM SNARESBROOK CROWN COURT
            > HIS HONOUR JUDGE BING
            > Royal Courts of Justice
            > Strand, London, WC2A 2LL
            > 16/03/2006
            > B e f o r e :
            > LORD JUSTICE DYSON
            > MR JUSTICE GRIGSON
            > and
            > MR JUSTICE WALKER
            > ____________________
            > Between:
            > Regina
            > Respondent
            >
            > - and -
            >
            >
            > Ross Warwick Porter
            > Appellant
            >
            > ____________________
            > Mr. A. Korda (instructed by C.P.S.) for the Respondent
            > Mr. A. H. Milne (instructed by Messrs Edwards Duthie) for the
            Appellant
            > Hearing dates : Monday 6th March 2006
            > ____________________
            > HTML VERSION OF JUDGMENT
            > ____________________
            > Crown Copyright ©
            > Lord Justice Dyson : this is the judgment of the court.
            > 1. On 26 April 2005, the appellant was convicted at Snaresbrook
            Crown Court
            > by a majority of ten to two on fifteen counts of making an indecent
            > photograph of a child contrary to section 1(1)(a) of the
            Protection of
            > Children Act 1978 and two counts (counts 16 and 17) of possessing
            indecent
            > photographs of children contrary to section 160(1) of the Criminal
            Justice
            > Act 1988 ("the 1988 Act"). With the leave of the single judge, he
            appeals
            > in part against his convictions on counts 16 and 17. This appeal
            raises an
            > important point as to the meaning of "possession" in section 160
            (1) of the
            > 1988 Act.
            > 2. So far as material, section 160 of the 1988 Act provides:
            > "(1) Subject to subsection (1A), it is an offence for a person to
            have any
            > indecent photograph or pseudo-photograph of a child in his
            possession.
            > (2) Where a person is charged with an offence under subsection (1)
            above,
            > it shall be a defence for him to prove-
            > (a) that he had a legitimate reason for having the photograph or
            > pseudo-photograph in his possession; or
            > (b) that he had not himself seen the photograph or pseudo-
            photograph and
            > did not know, nor had any cause to suspect, it to be indecent; or
            > (c) that the photograph or pseudo-photograph was sent to him
            without any
            > prior request made by him or on his behalf and he did not keep it
            for an
            > unreasonable time."
            > Section 160(7) provides that a "pseudo-photograph" means "an
            image, whether
            > made by computer graphics or otherwise howsoever, which appears to
            be a
            > photograph".
            > The facts
            > 3. On 5 November 2002, the police raided the appellant's house and
            seized
            > some hard drives and two computers (referred to as exhibits EOR31
            and EOR
            > 43) which were linked to the internet almost permanently. The
            appellant
            > worked in the field of information technology and had built two
            computers.
            > 3575 still images and 40 movie files of child pornography were
            recovered
            > from the hard disk drives of the two computers. The still images
            were the
            > subject of count 16 and the movie files the subject of count 17.
            The Crown
            > chose to indict the appellant with possession on 5 November 2002
            in these
            > two counts.
            > 4. Of the 3575 still images, 2 were found in EOR31 and the
            remaining 3573
            > in EOR43. The 2 still images found in EOR31 and 873 of the
            remaining 3573
            > found in EOR43 had been deleted in the sense that they had been
            placed in
            > the "recycle bin" of the computer which had then been emptied. The
            > remaining 2700 still images were saved in a database of a
            programme called
            > ACDSee. This programme is designed for viewing graphical images
            and is used
            > by photographers. When opened in the "gallery view", the programme
            creates
            > "thumbnail" images of the pictures viewed. These would originally
            have been
            > larger images associated with each thumbnail. If one had clicked
            on the
            > thumbnail, the larger image could have been viewed. All of the
            larger
            > images had, however, been deleted. The effect of deleting the
            larger images
            > was that the thumbnail could no longer be viewed in the gallery
            view. But a
            > trace of each thumbnail ("the metadata") remained in the database
            of the
            > programme.
            > 5. Of the 40 movie files, 7 were recovered from EOR31. All of
            these had
            > been placed in the recycle bin which had then been emptied. The
            remaining
            > 33 files were recovered from EOR43: they had not been saved, but
            were
            > recovered from the cache (temporary internet files) record of the
            two hard
            > disk drives.
            > 6. It was conceded by the Crown that (i) all the deleted items had
            been
            > deleted before 5 November 2002, (ii) the appellant did not have the
            > software to retrieve or view the deleted still or movie files and
            (iii) the
            > thumbnail images were only retrievable with the use of specialist
            forensic
            > techniques and equipment provided by the US Federal Government
            which would
            > not have been available to the public. It is common ground that the
            > appellant could have acquired software to enable him to retrieve
            the items
            > which had been emptied from the recycle bin. Such software could
            have been
            > downloaded from the internet or otherwise purchased. There was no
            evidence
            > that the appellant had attempted to do this.
            > The trial
            > 7. At the close of the prosecution case, it was submitted on
            behalf of the
            > appellant that there was no case to answer in relation to the
            entirety of
            > the subject of count 16 and in relation to 7 of the movie files
            that were
            > the subject of count 17. It was argued that none of these images
            was in the
            > appellant's possession, since he had done all that he could do to
            divest
            > himself of possession by placing them in the recycle bin which he
            had then
            > emptied. It was conceded on his behalf that the 33 files that were
            in the
            > cache were retrievable and were, therefore, in his possession. In
            rejecting
            > these submissions, the judge said:
            > "In my judgment, the determination of the submission should really
            be
            > decided by analysing what, as Mr Douglas put in his slide show, is
            in the
            > box. What is in the box is a hard drive. Within the hard drive
            there are
            > files. Files in the hard drive may or may not include an index.
            Files are
            > of three categories, operating files, application files and data
            files. For
            > the purposes of this submission the photographs are, of course,
            data files
            > and not application or operating system files.
            > If a file is an active file then, in my judgment, the evidence has
            > established that the user of the computer can without any real
            difficulty
            > activate and engage the contents of the file on the hard drive;
            but, in my
            > judgment, a file remains on the hard drive even if it has been
            deleted or
            > lost because the evidence of Mr Douglas before the jury has been
            to that
            > effect. A file does not cease to be a file on a hard drive if it
            has been
            > deleted. It remains a file, albeit a deleted file.
            > Therefore, the court interprets the word 'possession' in this
            sense; that
            > the defendant possessed the files within his computer whether they
            were in
            > an active category or a deleted category. The single point in this
            > submission, therefore, fails.."
            > 8. In his summing up, the judge dealt with the issue of possession
            in the
            > following way:
            > ".possession, as a matter of law, in Count 16, means having
            something
            > under your custody or control with the knowledge that you have
            such a thing
            > in your custody and control and for practical purposes there is
            little
            > difference in that definition and the definition of making,
            because as I
            > defined to you in Counts 1 to 15, if a person deliberately and
            > intentionally downloads an image, he makes that image and if that
            action is
            > done with the knowledge that the downloaded image is or likely to
            be
            > indecent, the offence is made out, but you must be sure, in
            relation to
            > Count 16, that before you find the defendant 'guilty' of having
            custody or
            > control on his hard disk of those images, that he knew that they
            were or
            > likely to be indecent.
            > And once again, members of the jury, the direction in relation to
            deleting
            > the files, in relation to Count 16, applies in the same way as
            Counts 1 to
            > 15, because you have heard the experts tell you that the nature of
            a
            > computer is that on the hard disk there are a number of files,
            data files.
            > Such files may be active or deleted, recovered, lost or
            unallocated and the
            > mere fact that an image is on a deleted file, rather than an
            active file,
            > does not mean that the user is not in possession, because the file
            deleted
            > or not, is one of the files he had on a hard disk which was in his
            > possession, was his computer and his hard disk. The issue in this
            case, is
            > whether he knew that the images were indecent, or likely to be
            indecent."
            > The parties' submissions
            > 9. On behalf of the appellant, Mr Milne submits that a person does
            not
            > commit the offence of possession of indecent photographs or
            > pseudo-photographs on the hard disk drive of his computer unless
            the images
            > are "readily accessible to the accused for viewing at the time
            when they
            > are said to be possessed, or capable of being made so accessible
            without
            > the need to obtain additional specialist software". He further
            submits that
            > a person who has at some time in the past been in possession of
            such
            > images, but who has taken all reasonable steps to destroy them or
            make them
            > irretrievable by him (such as by placing them in the recycle bin
            of his
            > computer and emptying the bin) is no longer in possession of them.
            Applying
            > that approach to the facts of this case, Mr Milne does not seek to
            appeal
            > against the conviction in relation to the 33 files in the cache
            that were
            > the subject of count 17. But he says that the appeal should be
            allowed in
            > respect of the remaining items in count 17 and all of the items
            that were
            > the subject of count 16.
            > 10. On behalf of the Crown, Mr Korda submits that, so long as
            images remain
            > on the hard disk drive and are recoverable and capable of being
            viewed,
            > they are in the possession of a person who has control of the hard
            disk
            > drive. Applying that approach to this case, Mr Korda concedes that
            the
            > appellant was not in possession of the 2700 stills which were had
            been
            > saved by the ACDSee programme. But he submits that the 7 movie
            files and
            > 875 still images which had been emptied from the recycle bin were
            in his
            > possession.
            > 11. These rival assertions concern the physical state of affairs
            that is
            > necessary in order to constitute the offence of possession
            contrary to
            > section 160(1). The oral argument before us did not specifically
            address
            > the mental element necessary to constitute the offence, although
            it is
            > mentioned briefly in the appellant's amended skeleton argument.
            > 12. It should also be noted that the question before us would not
            have
            > arisen if the appellant had been charged with possession during
            the period
            > from the time when he viewed the images until he deleted them. At
            trial the
            > Crown did not seek to amend the indictment to specify any such
            period. We
            > have not sought any explanation for this, but we recognise that
            there may
            > be practical reasons why the Crown would wish to be able to charge
            > defendants with possession of images at the time when the computer
            in
            > question is seized, rather than at some earlier date.
            > The proper interpretation of section 160(1) of the 1988 Act
            > 13. In Warner v Commissioner of Police of the Metropolis [1969] 2
            AC 256,
            > 304F, Lord Pearce said:
            > "Again Lord Parker CJ in Towers & Co Ltd v Gray [1961] 2 QB 361
            after
            > observing that the term "possession" is always giving rise to
            trouble, and
            > after considering various cases there cited, concluded, rightly as
            I think,
            > that in each case its meaning must depend on the context in which
            it is
            > used".
            > 14. The apparently unqualified language of section 160(1) is in
            fact
            > subject to certain qualifications. First, a person is not guilty
            of the
            > offence of possession under section 160(1) unless he knows that he
            has the
            > photographs or pseudo-photographs in his possession. This was
            decided by
            > the Divisional Court in Atkins v Director of Public Prosecutions
            [2002] 2
            > Cr App R 248, 261-262. Secondly, section 160(2) provides three
            defences.
            > Section 160(2)(c) is of some significance: a person is not guilty
            of the
            > offence of possessing an indecent photograph or pseudo-photograph
            if it was
            > sent to him without any prior request by him or on his behalf and
            he did
            > not keep it for an unreasonable time.
            > 15. The retention of hard copy indecent photographs of a child
            which are
            > sent to a person without prior request presents no particular
            difficulty.
            > It will be a matter for the jury on the facts of any individual
            case to
            > decide whether the defendant who received such a photograph kept
            it for an
            > unreasonable time. Once he knows that he has received it, the item
            will be
            > in his possession until he has got rid of it, but he is not guilty
            of the
            > offence if he gets rid of it within a reasonable time. The section
            > 160(2)(c) defence is only available where the photograph or
            > pseudo-photograph is sent to the defendant without any prior
            request by him
            > or on his behalf. It follows that if a hard copy photograph or
            > pseudo-photograph is sent to a person at his request, then on the
            > assumption that he knows that he has received it and that it is in
            his
            > custody or control, he will be in breach of section 160(1) even if
            he gets
            > rid of it within a reasonable time.
            > 16. But possession of indecent images of children on a computer
            presents
            > special problems. It may seem superficially attractive to say that
            all that
            > is required to prove a breach of section 160(1) of the 1988 Act is
            that, to
            > the knowledge of the defendant, the images were on the defendant's
            hard
            > disk drive within the computer which was in his custody and
            control at the
            > material time. It can be argued that possession is an ordinary
            English word
            > which should be given its normal meaning. Parliament has mitigated
            the
            > harshness that would result from giving the word its normal
            meaning by
            > expressly providing three defences in section 160(2) and impliedly
            > providing that knowledge is an essential element of the offence.
            On this
            > interpretation (which was adopted by the judge in the present
            case), the
            > fact that the images may be difficult or even impossible to
            retrieve is
            > irrelevant.
            > 17. But this interpretation could give rise to consequences so
            unreasonable
            > that we are not willing to accept it unless we are compelled to do
            so by
            > the express words of the statute or by necessary implication. Its
            > unreasonableness is well illustrated by the present case. The only
            way in
            > which the appellant could have retrieved the 2700 still images
            which had
            > been saved by the ACDSee programme would have been by the use of
            specialist
            > techniques and equipment supplied only with the authorisation of
            the US
            > Federal Government and which were not available to the general
            public. It
            > is accepted by the Crown that in reality the appellant could not
            have
            > retrieved these images. In our judgment, it offends common sense
            to say
            > that they were in the possession of the appellant on 5 November
            2002. As we
            > have said, Mr Korda does not so contend.
            > 18. It is not, however, necessary to postulate such an extreme
            example to
            > demonstrate that the judge's view leads to unreasonable results.
            Suppose
            > that a person receives unsolicited images of child pornography as
            an
            > attachment to an email. He is shocked by what he sees and
            immediately
            > deletes the attachment and deletes it from the recycle bin.
            Suppose further
            > that he knows that the images are retrievable from the hard disk
            drive, but
            > he believes that they can only be retrieved and removed by
            specialists who
            > have software and equipment which he does not have. It does not
            occur to
            > him to seek to acquire the software or engage a specialist for this
            > purpose. So far as he is concerned, he has no intention of ever
            seeking to
            > retrieve the images and he has done all that is reasonably
            necessary to
            > make them irretrievable. We think that it would be surprising if
            Parliament
            > had intended that such a person should be guilty of an offence
            under
            > section 160(1) of the 1988 Act.
            > 19. Moreover, an interpretation which rendered such a person
            guilty of a
            > breach of section 160(1) would sit uneasily with section 160(2)
            (c). This
            > provision shows that Parliament intended that persons who
            inadvertently
            > come into possession of images and get rid of them within a
            reasonable time
            > are not guilty of the offence of possession. In these
            circumstances, it
            > would be surprising if Parliament had intended that this defence
            should not
            > be available to persons who inadvertently come into possession of
            images on
            > their computers. But on the judge's interpretation, the section 160
            (2)(c)
            > defence would not be available even to a person who had saved the
            images in
            > ACDSee or in a similar programme. It is true that the defendant in
            the
            > present case could not invoke section 160(2)(c) because he could
            not say
            > that the images had not been sent to him at his request. But the
            point
            > remains that, on the judge's interpretation, the section 160(2)(c)
            defence
            > may be available to a defendant who has received hard copy
            photographs or
            > pseudo-photographs and has adopted the simple remedy of getting
            rid of them
            > within a reasonable time, whereas it is not available to a
            defendant who
            > has received such images on his computer, even if they are saved
            in ACDSee
            > or a similar programme, because the images are still on the hard
            disk drive
            > of the computer.
            > 20. In our judgment, such an interpretation is not compelled
            either by the
            > express words of the statute or by necessary implication. So what
            is the
            > correct interpretation? In DPP v Brooks [1974] AC 862, 866H, Lord
            Diplock
            > giving the judgment of the Privy Council said: "In the ordinary
            use of the
            > word "possession", one has in one's possession whatever is, to
            one's
            > knowledge, physically in one's custody or under one's physical
            control."
            > That was said in the context of a case about unlawful possession
            of drugs.
            > In a similar context and to similar effect, Lord Scarman said in R
            v
            > Boyesen [1982] AC 768, 773H: "Possession is a deceptively simple
            concept.
            > It denotes a physical control or custody of a thing plus knowledge
            that you
            > have it in your custody or control."
            > 21. It is true that the context of possession of photographs or
            > pseudo-photographs on the hard drive of a computer is different
            from the
            > context of possession of drugs. Making allowance for those
            differences,
            > however, in seeking to elucidate the meaning of "possession" in
            section
            > 160(1) in the present context, we see no reason not to import the
            concept
            > of having custody or control of the images. In the special case of
            deleted
            > computer images, if a person cannot retrieve or gain access to an
            image, in
            > our view he no longer has custody or control of it. He has put it
            beyond
            > his reach just as does a person who destroys or otherwise gets rid
            of a
            > hard copy photograph. For this reason, it is not appropriate to
            say that a
            > person who cannot retrieve an image from the hard disk drive is in
            > possession of the image because he is in possession of the hard
            disk drive
            > and the computer.
            > 22. It seems to us that both counsel in the present case were, in
            > substance, adopting a test of custody or control, although they
            described
            > it in terms of accessibility. The only difference between the
            formulations
            > advanced by counsel is that Mr Milne argues for the less stringent
            test of
            > reasonable accessibility; whereas Mr Korda contends for a simple
            test of
            > accessibility. Our starting point in resolving this conflict is
            that the
            > first question for the jury is whether the defendant in a case of
            this kind
            > has possession of the image at the relevant time, in the sense of
            custody
            > or control of the image at that time. If at the alleged time of
            possession
            > the image is beyond his control, then for the reasons given
            earlier he will
            > not possess it. If, however, at that time the image is within his
            control,
            > for example, because he has the ability to produce it on his
            screen, to
            > make a hard copy of it, or to send it to someone else, then he
            will possess
            > it. It will be a matter for the jury to decide whether images are
            beyond
            > the control of the defendant having regard to all the factors in
            the case,
            > including his knowledge and particular circumstances. Thus, images
            which
            > have been emptied from the recycle bin may be considered to be
            within the
            > control of a defendant who is skilled in the use of computers and
            in fact
            > owns the software necessary to retrieve such images; whereas such
            images
            > may be considered not to be within the control of a defendant who
            does not
            > possess these skills and does not own such software.
            > 23. We acknowledge that this introduces a subjective element into
            the
            > concept of physical possession. But we note that the defences
            provided by
            > section 160(2) import a consideration of the knowledge and
            behaviour of the
            > particular defendant. Moreover, on any view, an important element
            of
            > subjectivity is introduced by the requirement of knowledge. It
            follows that
            > this is not an area where Parliament has enacted an absolute
            offence. In
            > these circumstances, we see no objection to interpreting the word
            > "possession" in the particular context of the possession of images
            in a
            > computer as referring to images that are within the defendant's
            control.
            > 24. It will, therefore, be a matter for the jury to decide whether
            images
            > on a hard disk drive are within the control of the defendant, and
            to do so
            > having regard to all the circumstances of the case. Such is the
            speed at
            > which computer technology is developing that what a jury may
            consider not
            > to be within a defendant's control today may be considered by a
            jury to be
            > within a defendant's control in the near future. Further, in the
            course of
            > time more and more people will become skilled in the use of
            computers. This
            > too will be a relevant factor for the jury to take into account.
            > The outcome of this appeal
            > 25. It follows from what we have said that the judge was right not
            to
            > accede to the submission that counts 16 and 17 should be withdrawn
            from the
            > jury. But his summing up to the jury was flawed. He directed them
            that the
            > only issue for them to decide was whether the defendant knew that
            the
            > images were indecent or likely to be indecent. He did not direct
            them about
            > the factual state of affairs necessary to constitute possession,
            and the
            > result is that a vital issue was wrongly removed from the jury.
            Nor did he
            > direct them about the mental element required to constitute
            possession. It
            > seems to us that in principle this would requir
            e proof that the
            defendant
            > did not believe that the image in question was beyond his control.
            However,
            > as we have not heard argument on the point, we express no
            concluded view on
            > it.
            > 26. For these reasons, the convictions on counts 16 and 17 must be
            quashed.
            > The appeal is, therefore, allowed.
            >
          • trewCO@compuserve.com
            This second version of my email was not sent be me. Look at Internet header below and check with Internet header that related to my reply to Ken s email the
            Message 5 of 6 , May 2, 2006
              This second version of my email was not sent be me. Look at Internet header
              below and check with
              Internet header that related to my reply to Ken's email the first time
              around.

              Can see a any point in the system duplicating and re-sending my first
              email.
              Greg

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              Date: Tue, 02 May 2006 09:33:32 -0700
              Subject: [forensic-science] Re: Interesting case law on deleted computer
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            • Ken Howard
              My reply also posted twice and the second post was not sent by me. Strange. Ken ... Internet header ... time ... first ... SMTP id ... d=yahoogroups.com; ...
              Message 6 of 6 , May 2, 2006
                My reply also posted twice and the second post was not sent by me.
                Strange.

                Ken



                --- In forensic-science@yahoogroups.com, trewCO@... wrote:
                >
                >
                >
                > This second version of my email was not sent be me. Look at
                Internet header
                > below and check with
                > Internet header that related to my reply to Ken's email the first
                time
                > around.
                >
                > Can see a any point in the system duplicating and re-sending my
                first
                > email.
                > Greg
                >
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