Rowe, R. v

For the purposes of section 160(1) of the Criminal Justice Act 1988, possession of an indecent image requires custody or control of the image itself. A person who cannot retrieve or gain access to a deleted image does not possess it merely because he possesses the computer medium on which it remains stored. The same principle applies to deleted files on a floppy disk and on a computer hard drive.

A jury must be directed on the factual and mental issues necessary for possession. Where deletion may bear on knowledge and control, a failure to direct the jury on its significance may render convictions unsafe.

The appellant was convicted at the Crown Court at King’s Lynn of twelve offences of possessing indecent photographs of children, contrary to section 160(1) of the Criminal Justice Act 1988. The prosecution relied on images recovered from floppy disks seized from his bedroom. Ten counts concerned deleted images. Two counts concerned active movie files.

After an unsuccessful application for leave to appeal, the Criminal Cases Review Commission referred the convictions. The reference followed R v Porter [2006] EWCA Crim 560, which addressed possession of deleted indecent images. The central questions were whether deleted images on floppy disks could be possessed, and whether the jury had been properly directed on the significance of deletion to possession and knowledge.

1. Appeal allowed. All twelve convictions were unsafe and were quashed.

2. Possession under section 160(1) of the Criminal Justice Act 1988 concerns custody or control of the indecent images, rather than simply possession of the storage medium. Applying R v Porter [2006] EWCA Crim 560, a person who cannot retrieve or access a deleted image has put it beyond his reach and does not possess it merely because he possesses the computer or disk. There was no distinction in principle between deletion from a hard drive and deletion from a floppy disk.

3. For counts 1–8 and 11–12, the images had been deleted and the appellant had neither recovery software nor evidence of the specialist knowledge needed to restore them. The jury had not been directed to consider the significance of deletion either to possession or to the knowledge required for criminal possession. That omission was material, notwithstanding that knowledge generally had been put in issue at trial.

4. Counts 9 and 10 concerned active files, but were also unsafe. The jury had considered those counts as part of a case alleging possession of 124 images. If the deleted-image counts had been removed and the jury properly directed, only a small number of images from the active movie files would have remained. The jury might then have had a reasonable reservation about whether the appellant knew of those files.

5. The later decision in Porter did not create a change-of-law case. It explained principles which had not previously been defined. Although time had passed, justice required the appellant to be permitted to advance an argument which had been available when he first sought leave. Section 42 of the Criminal Justice and Immigration Act 2008 did not affect that conclusion.

6. In a tangential observation, the court confirmed that R v Cottrell and Fletcher [2007] EWCA Crim 2016 was authoritative on the Commission’s need to consider the court’s practice concerning out-of-time applications. Any inconsistent implication drawn from R (DRCP) v CCRC [2006] EWHC 3064 (Admin) was unsound.

• Court of Appeal (Criminal Division): Following a reference by the Criminal Cases Review Commission, allowed the appeal and quashed all convictions.

• Single judge: Refused the appellant leave to appeal against conviction. The application was not renewed.

• Crown Court at King’s Lynn: On 13 August 2003, convicted the appellant of twelve section 160(1) offences. On 3 November 2003, imposed concurrent sentences of six months’ imprisonment and notification orders.