PCD Solicitors have recently represented a 68 year old male in the Crown Court and obtained not guilty verdicts relating to indecent images of children found in the thumb-cache of his device.
The trial lasted a period of three days, we presented to a jury the defence of no knowledge.
Following a two year police investigation our client was charged with five offences all linked to each other concerning the indecent images of children.
Making catgegory A images
Making category B images
Making category C images
Possessing indecent images of children
Distributing indecent images of children
Following successful discussions with the Crown Prosecutor at the client’s first appearance at the Magistrates Court, the offence of distributing indecent images was dropped. The offence was charged due to the intelligence which had led officers to the client’s home address, intelligence that on a certain date at a certain time 147 indecent images of children were uploaded to the the internet using the IP address of our client. The forensic examination of our client’s devices could not evidence this upload, the evidential weakness were highlighted by us and the prosecution had no option but to withdraw this specific charge.
Following the magistrates court appearance we continued to prepare the case for trial in the Crown Court. This particular case was allocated to the Crown Court for two reasons:
- The presence of category A images, which potentially took any potential sentence outside of the magistrates jurisdiction; and
- The complexity of the forensic evidence involved was better placed before a Crown Court judge
It would have been our advice in any event that our client’s case was best placed in the Crown Court for a trial before a jury.
Making indecent images of children is an offence contrary to section 1(1)(a) of the Protection of Children Act 1978. It is an either-way offence, which means it can be heard by the Magistrates or Crown Court. The offence, upon conviction, carries a maximum of a 10 years imprisonment in the most serious of cases.
A person is guilty of an offence of making an indecent image if they have “caused an image to exist”, this includes clicking on a pop up, opening an attachment or downloading from a website. The law requires that the making must be a deliberate and intentional act, done with the knowledge that the image is, or is likely to be, an indecent photograph of a child.
In short there are two elements to this offence:
(a) the images/photographs are indecent images of children.
There was no issues about this in our clients case, the people identified in the photographs were children.
(b) The defendant made the photographs
This was the issue for the jury to consider and to consider whether or not he made them intentionally and with the knowledge that the images being downloaded were of children.
Meticulous and thorough preparation was required, the first step was for us to consider in detail all evidence in the case and to establish whether or not the offences were made out by the forensic evidence.
We provided our client with full legal advice throughout the process and guided him through the evidence during several face to face case conferences.
Once we had obtained a full account from our client and his response to the evidence we instructed an independent defence expert to analyse the devices and data produced in evidence by the Crown Prosecution Service.
The client had informed us that over many years he had downloaded hundreds if not thousands of films and TV programmes all of a perfectly legal nature. He stated that anything illegal has either come onto his computer by someone else using the device, or accidentally during a bulk download of movies. The method he used following a bulk download was to bulk delete the files he no longer needed, once the film he was looking for was identified. It is within the deleted bulk he says these images must have been present, and he did not see them.
The evidence of the images was that they were thumbnail images. The forensic evidence from the Crown was that for a thumbnail image to exist the original image must have at some stage been downloaded. We did not dispute this evidence, we agreed the full forensic report of the Crown Prosecution Service, our defence was that our client was not responsible for the image download and if the court found that he was, he had no knowledge of it.
We obtained a forensic report and held several case conferences with our client, the forensic examiner and the defence barrister.
As a team we devised a trial strategy and planned the best way in which to present our clients case.
What is a thumb-cache file?
A thumb-cache file contains thumb-nail images which are created when a user views a folder which contains the file.
Specifically to this case, our client had a folder which could at times consist of 100's of files. When the folder was opened, a thumb-nail would be created for each file within that folder. Therefore, there was no need for our client to have clicked on any particular file for the thumb-nail images to be created.
The purpose of thumb-cache is to speed up the display of files within a folder on your computer. It is a process the computer will automatically do, unless the user has manually turned off caching.
The thumb cache will remain on a computer, even where the file itself has been deleted.
The trial lasted a period of three days, during the three days we heard evidence from forensic experts and the client himself.
The client clearly explained his position, what he used his devices for and the methods he used to download from the internet. He denied all knowledge of indecent images being present on his devices.
The jury had to be sure of our clients guilt, they had to be sure he had knowledge of the images within the thumb-cache.
At the conclusion of the trial the jury found our client not guilty of having made indecent images of children found in the thumb-cache of his device.
If you would like to discuss your case with us, please contact one of our lawyers on 0151 705 8488 for a free, non-judgemental chat. We can advise you on the law, procedures and next steps we will look to take in your case.