Defendant acquitted of making indecent images

What happens if there are images on a computer that you didn’t know about? It never came up in a search, it has never been viewed. This can happen it happened to Mr. C.

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

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

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

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

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

As a result we advised Mr C to give a no comment interview which was perfectly within his rights. In its stead and as a result of his instructions we prepared a written statement and read it to the officer in the case during the interview. Mr C stated that he was not interested in indecent images of children and had never knowingly done anything that would result in an indecent image appearing on his computer. Images had appeared on his computer as a result of the actions of others i.e. whilst engaging with others in chat rooms people would occasionally post indecent images. In addition he had downloaded packages of what he believed to be adult pornography. He had deleted them immediately, nothing on his computer showed any interest in children.

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

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

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

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

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