The defendant appealed his conviction of possession of indecent photographs or pseudo-photographs of children. The images had been deleted, and were irrecoverable, but they had originally been viewed through a program which created a smaller additional image for each original. Though the thumbnail images were no longer accessible without the original, they remained on the computer.
Held: The defendant could not be found to be in possession of pictures which were not accessible to him without specialised recovery software not available to him: ‘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. ‘
Judges:
Dyson LJ, Grigson J, Walker J
Citations:
Times 21-Jun-2006, [2006] EWCA Crim 560, [2006] 1 WLR 2633, [2006] 2 Cr App Rep 25, [2007] 2 All ER 625
Links:
Statutes:
Criminal Justice Act 1988 160(1), Protection of Children Act 1978 1(1)(a)
Jurisdiction:
England and Wales
Citing:
Cited – Warner v Metropolitan Police Commissioner HL 1968
The appellant had been convicted of an offence contrary to section 1 of the 1964 Act, of having been found in possession of drugs.
Held: (Reid dissenting) The prosecution had only to prove that the accused knew of the existence of the thing . .
Cited – Atkins v Director of Public Prosecutions; Goodland v Director of Public Prosecutions Admn 8-Mar-2000
For possession of an indecent image of a child to be proved, it was necessary to establish some knowledge of its existence. Images stored without the defendant’s knowledge by browser software in a hidden cache, of which he was also unaware, were not . .
Cited – Director of Public Prosecutions v Brooks PC 1974
The defendant appealed against a conviction for the possession of drugs.
Held: ‘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 . .
Cited – Regina v Boyesen HL 1982
The House considered the meaning of possession.
Held: Lord Scarman: ‘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.’ . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 23 November 2022; Ref: scu.239144