Porter, R. v

For possession of indecent computer images under section 160(1), custody or control of the computer alone is insufficient. The prosecution must prove that the defendant knew of the images and had custody or control of them at the material time.

A deleted image is not possessed if the defendant cannot retrieve or gain access to it. Whether it remains within the defendant’s control is a fact-sensitive question for the jury. Relevant matters include the defendant’s knowledge, computer skills, available software and ability to display, copy or transmit the image.

The appellant was convicted at Snaresbrook Crown Court of making indecent photographs and of two counts of possessing indecent photographs of children contrary to section 160(1) of the Criminal Justice Act 1988. He appealed only the possession convictions.

Police recovered images and movie files from his computers. Some had been deleted and removed from the recycle bin, while others survived only as metadata in image-viewing software. The appellant had no software capable of retrieving the deleted material, although some recovery software could have been acquired.

The trial judge ruled that all files remaining on the hard drives were in the appellant’s possession and directed the jury accordingly. The central issue was whether deleted computer images were possessed when they were inaccessible to their former user.

1. Appeal allowed. The convictions on counts 16 and 17 were quashed. The judge had been right to leave the counts to the jury, but the summing up wrongly removed from them the vital issue of custody or control.
2. The meaning of possession depends on its statutory context: Warner v Commissioner of Police of the Metropolis [1969] 2 AC 256. Under section 160(1) of the Criminal Justice Act 1988, the accused must know of the images and have them in custody or under control. The court adopted the ordinary possession concept stated in DPP v Brooks [1974] AC 862, adapted to computer images.
3. For a deleted image, a person who cannot retrieve or access it no longer has custody or control of it. It has been put beyond that person’s reach, as a hard-copy photograph is put beyond reach when destroyed or discarded. Possession of the hard drive does not by itself establish possession of every inaccessible image recorded upon it.
4. The inquiry is fact-sensitive. The jury must decide whether an image was within the defendant’s control at the alleged time, considering all the circumstances. Ability to display, print or transmit an image will ordinarily demonstrate control. A computer-skilled defendant who owns recovery software may control deleted material, whereas a defendant lacking both the relevant skill and software may not. The statutory defences in section 160(2), especially the defence for unsolicited material not kept for an unreasonable time in section 160(2)(c), supported that contextual construction.
5. The judge directed the jury that the only issue was whether the appellant knew the images were indecent or likely to be indecent. That was a misdirection because it excluded the separate question whether the images remained within his control. The court expressed, without deciding the point, the provisional view that the mental element might require proof that the defendant did not believe the image was beyond his control.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the possession convictions: [2006] EWCA Crim 560.
• Snaresbrook Crown Court: The appellant was convicted, by a majority, of fifteen making offences and two possession offences. The appeal concerned the two possession convictions.