The Background to the Indecent Image Case
The Defendant faced 17 Counts of making indecent images of children, contrary to section 1(1)(a) of the Protection of Children Act 1978, 1 Count of Possessing 8 Indecent Images of Children, contrary to section 160(1) of the Criminal Justice Act 1988 and 6 Counts of Possessing Extreme Pornography, contrary to Section 63(1) of the Criminal Justice and Immigration Act 2008.
The charges followed the examination of 5 computers and 2 external hard drives that had been seized from the Defendant’s home address.
The Prosecution alleged that 2 of those computers had contained the 31 illegal images and further alleged that those images had been deliberately created by the Defendant.
The Defendant denied that he had deliberately or intentionally caused the creation of the indecent images of children or extreme pornography.
The Investigation of the Computer Evidence
Athena Forensics were instructed by the Solicitor representing the Defendant to examine the Prosecution expert observations and findings and assess whether there was evidence to support the Defendant’s assertions that he had not deliberately stored the indecent images of children or extreme pornography.
Findings of the Forensic Examination of the First Computer
The findings of the computer examination were that one of the computers contained over 30,000 legal images with 18 identified by the Prosecution as illegal.
The 18 images were found within the Recycle Bin. We were able to demonstrate that the images had been previously located within a folder named Cache before they had been deleted on the same date that they had been automatically stored during Internet browsing.
It was also noted that the images would not have been accessible before deletion as they contained no ‘file extension’, thereby not being recognisable to the operating system as images in the normal way.
A review of the 18 images themselves was conducted and it was found that 15 of them were ‘nudist’ style within nudism scenes and that 2 of the images featured a young Hollywood actress. There was also noted to have been a disclaimer on the front page of the website purporting to provide a statement by a Judge that the images contained within the site were not illegal.
Further evidence identified by the Police comprised of the identification of web pages also within the Cache folder in the Recycle Bin that were alleged to be relevant to the presence of the images. However, a review of this evidence revealed that it was not relevant and were not indicative of a user deliberately seeking illegal material.
A BBC News page referring to ‘nudist’ websites was also identified by Athena Forensics that appeared to support the assertion made by the Defendant of his activity on the date in question and possible reason for accessing the site in question.
Findings of the Forensic Examination of the Second Computer
The second computer contained more than 12,000 images including 7 that were alleged by the Prosecution to comprise of indecent images of children and 6 of extreme pornography.
6 of the images were identified within a Temp folder that contained over 1,800 files including 6 that were those identified by the Prosecution of indecent images of children and 6 of extreme pornography.
The source of the relevant images could not be determined, however, it was noted that 44 of the images within the same folder had been created during a 4 second period as the relevant images. Therefore, whilst it was not possible to determine whether or not they had been deliberately or intentionally created, it was noted that they had been created as a larger group of files with the majority containing legal material.
The 6 images of extreme pornography were noted to have been created prior to the introduction of the Criminal Justice and Immigration Act 2008 that had made them illegal, meaning that they were not illegal at the point of creation.
The Temporary Internet cache folder contained over 900 static images including 1 that had been identified by the Prosecution as comprising of an indecent image of a child. However, our review revealed that it was located within the slack space of a newer file and, therefore, had been deleted.
Due to this, the time/date or origins of that image could not be determined, including whether it had been created deliberately.
The Prosecution Response to the Computer Forensic Report
After the report from Athena Forensics was served on the Prosecution, the CPS decided to instruct an eminent external computer forensic expert who reviewed the Police evidence and produced a further report.
That report identified various other items of evidence that amounted to Internet web page activity suggesting potential activity on further occasions of a questionable nature.
A further report by Athena Forensics was then produced containing the observations of the latest report by the Prosecution.
That report argued that the additional evidence identified could not be attributed to the creation of the images or any of the alleged offences and that the majority of the activity identified could not be dated.
The Crown Court Trial
The Trial was due to take place over 3 days, on the first day discussions took place between the Prosecution expert and the expert from Athena Forensics. The agreement was written by Athena Forensics’ expert and agreed by the Prosecution.
That agreement then formed the basis of the evidence given by the Prosecution expert who was then cross-examined by the Defence team.
The following day as a result of the evidence heard by the court and the limitations of it, the Judge ordered the Prosecution to take further instructions, which they duly did and returned to court to offer no evidence against the Defendant.
The Trial Judge then formerly acquitted the Defendant of all of the charges that he had faced including possessing and making indecent images of children.
The case had hung over the Defendant for 4 years to that point and had been pursued by the Prosecution to the point where they sought assistance from an external computer forensic expert, however, the limitations of the evidence that were heard by the court resulted in his Acquittal.
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