I exchanged emails with a man that was facing an imminent sentence hearing. It was my understanding that there was uncertainty regarding the exact events that had caused indecent images of children to be on the computer.
From: Graham Dilloway <email>
Sent: 03 October 13:51
To: 'D
Subject: RE: Advice on challenging e-crime evidence in
court
Mr D
Indecent images can be on a computer without any
deliberate attempt to obtain such images by a user
of the computer. The
Prosecution must show that images were on a computer as a result of knowing
and deliberate action to prosecute.
There is a Court Judgement that says
unambiguously that there needs to be evidence of a deliberate act
of
possession or of making. The Judgement is at …
http://www.bailii.org/ew/cases/EWHC/Admin/2000/302.html
Pop-up web pages are well known. The pages pop-up on the screen without any
deliberate act by the
user of the computer. Many web sites include pop-up
web pages that carry advertisements. Most web
browser software includes an
option that can be ticked to prevent pop-up web pages.
Pornography web
sites are well known users of pop-up web pages (including pop-ups that
circumvent
pop-up prevention). The user of a computer has no control of the
content of a pop-up web page. It has
been accepted by police computer
examiners in other cases that pop-up web pages could be the source
of
unintended indecent images found on a computer.
A user of file sharing
software such as Limewire relies on other file sharing software users to create
and
to label the material that is being downloaded by the file sharing
software. The great majority of file
sharing software users are engaged in
anonymous copyright theft. Users of file sharing software cannot
not be
relied upon to accurately label the material that they make available for
download. A file sharing
software user might download a file expecting to
hear Beatles songs and would be disappointed to hear
songs by the Rolling
Stones.
Those who distribute pornography using file sharing software are
likely to be the most unreliable of all
file sharing users. It is entirely
possible for a computer to use file sharing software to download a file
expecting to find legal adult pornography and for that file to include indecent
images of children. It has
been accepted by police computer examiners in
other cases that file sharing software could be the
source of unintended
indecent images found on a computer.
I have seen cases were images found
in the “swap file” were included in evidence. Simply stated, an
image would
have been in the swap file if the computer had been processing the image in the
hours (or,
maybe, days) before the computer was seized. I have never seen a
case were the police were able to
say what processing of the image had
occurred for an image in the swap file. It is my firm view that
nobody
should be prosecuted for images found in the swap file because it is not
possible to say exactly
why those images were in the swap file. An image (or
images) may have been in the swap file as a result
of, for example, a pop-up
web page.
Police computer examiners describe deleted files as being in
unallocated space. A deleted file (a file in
unallocated space) would not be
visible to a typical user of the computer. A deleted file (a file in
unallocated space) would not be accessible by a typical user of the computer. I
cannot recall that I have
ever seen a case where someone has been
successfully prosecuted for possession of deleted files. It is
my
understanding that the Atkins Judgement requires a person to know that they have
possession of a
file and a typical person does not know that they have
possession of a deleted file (a file in unallocated
space).
It is my
understanding that the Atkins judgement requires a person to deliberately cause
an indecent
image to be stored on a computer to prosecute a charge of
making. I would expect the Prosecution to
show the act that caused a file to
be on the computer. The Defence might say that a file is inadvertently
on a
computer due to a web page pop-up if the Prosecution are unable to show the act
that caused a file
to be on the computer.
Anything that I say here
should be treated with caution because I am not a lawyer and I do not have full
knowledge of your circumstances …
But …
If the only evidence
is evidence of a file (or files) in the swap file and evidence of files in
unallocated
space …
And …
There is no evidence regarding, for
example, the names or creation dates of files.
There is no evidence of, for
example, Google searches or Limewire searches.
There is no evidence regarding
the web browser history showing visits to, for example, web sites that
display indecent images of children.
There is no compelling evidence to show
the actions (such as mouse clicks or typing) that caused the
indecent images
to be on the computer.
Then … the absence of evidence of a deliberate act
may prevent a successful prosecution.
Please note that there are factors
that are outside the remit of a computer specialist including the
impact of
any admissions or other remarks made in interview.
Additionally, there
may be those who take the view that 69 images is too many to have been acquired
by accident. This may be a matter of context and may require consideration
of the total number of
images on the computer (legal and illegal) and the
number of legal pornographic images.
It is my understanding that a Newton
hearing is where a Judge hears evidence and then states the
sentence that
would be given if the plea was Guilty. The implication of this is that a
Defendant has the
opportunity to plead Not Guilty after a Newton hearing.
The police computer examine might be at the Newton hearing. The police
computer examiner might
answer “Yes” if asked …
Can web pages pop-up
when browsing a web site?
Do pop-up web pages display, for example,
advertisements that may be of no interest to the computer
user?
Could a
pop-up web page include unsolicited material?
Can pop-ups avoid measures
intended to prevent their display?
Do pornography websites use pop-ups?
Could an unsolicited pop-up include an indecent image of a child?
Could an
indecent image of a child from an unsolicited pop-up be found later in the swap
file or in
unallocated space?
Are most of the files that are
distributed using file sharing software such as Limewire created by the
users of the file sharing software (for example, do file sharing users copy
songs from their CDs onto their
computers to allow sharing)?
Are many
file sharing software users engaged in anonymous copyright theft?
Are file
sharing software users likely to sometimes incorrectly label the files that they
share (for
example, by labelling a file as a Beatles song when it is not a
Beatles song)?
Are file sharing software users that use file sharing to
distribute pornography likely to sometimes
incorrectly label the files that
they share?
Could an unsolicited indecent image of a child be included in a
file obtained using file sharing software
and labelled as containing legal
material?
Could an indecent image of a child from an incorrectly labelled
file sharing file be found later in the swap
file or in unallocated space?
I am not a lawyer and cannot give you legal advice. I would be happy to
discuss the evidence in your
case with your lawyer or with you. I can take a
call at any time.
Regards
Graham Dilloway
Expert Witness