Indecent Images

Law For The Accused

National Crime Agency - defence

Protection of Children Act 1978

Usually, people who are found to have such images on their computers cannot explain how they come to be there.

The key questions is at the beginning of an investigation, who has access to your computer?

The answer most people gives, "only me".

If there is a Trojan programme on your computer you will not know about it and your computer may have been accessed thousands of times without your knowledge.

Doctors, lawyers, pop stars and even judges have been found within indecent images on their computers (no surprise there then).

Anyone is at risk.

You need lawyers with experience in computer and criminal law like MJP solicitors.

Further confidential advice on indecent images can be found on our dedicated website.





The law says

Protection of Children Act 1978, s.1

1. Indecent photographs of children

(1) Subject to sections 1A and 1B, it is an offence for a person -

(a) to take, or permit to be taken, or to make any indecent photograph or pseudo-photograph of a child; or

(b) to distribute or show such indecent photographs or pseudo-photographs; or

(c) to have in his possession such indecent photographs or pseudo-photographs, with a view to their being distributed or shown by himself or others; or

(d) to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or pseudo-photographs, or intends to do so.

(2) For purposes of this Act, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(3) Proceedings for an offence under this Act shall not be instituted except by or with the consent of the Director of Public Prosecutions.

(4) Where a person is charged with an offence under subsection (1)(b) or (c), it shall be a defence for him to prove -

(a) that he had a legitimate reason for distributing or showing the photographs or pseudo-photographs or (as the case may be) having them in his possession; or

(b) that he had not himself seen the photographs or pseudo-photographs and did not know, nor had any cause to suspect them to be indecent.

(5) References in the Children and Young Persons Act 1933 (except in sections 15 and 99) to the offences mentioned in Schedule 1 to that Act shall include an offence under subsection (1)(a) above.

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Protection of Children Act 1978, s.1a

1A. Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 1 (1)(a) of taking or making an indecent photograph of a child, or for an offence under section 1 (1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he -

(a) were married or civil partners of each other, or

(b) lived together as partners in an enduring family relationship.

(2) Subsections (5) and (6) also apply where, in proceedings for an offence under section 1 (text)(1)(b) or (c) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he -

(a) were married or civil partners of each other, or

(b) lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) In the case of an offence under section 1 (1)(a), if sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being taken or made, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

(5) In the case of an offence under section 1 (1)(b), the defendant is not guilty of the offence unless it is proved that the showing or distributing was to a person other than the child.

(6) In the case of an offence under section 1 (1)(c), if sufficient evidence is adduced to raise an issue both -

(a) as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, and

(b) as to whether the defendant had the photograph in his possession with a view to its being distributed or shown to anyone other than the child, the defendant is not guilty of the offence unless it is proved either that the child did not so consent and that the defendant did not reasonably believe that the child so consented, or that the defendant had the photograph in his possession with a view to its being distributed or shown to a person other than the child.

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Protection of Children Act 1978, s.1b

1B. Exception for criminal proceedings, investigations etc.

(1) In proceedings for an offence under section 1 (1)(a) of making an indecent photograph or pseudo-photograph of a child, the defendant is not guilty of the offence if he proves that -

(a) it was necessary for him to make the photograph or pseudo-photograph for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world,

(b) at the time of the offence charged he was a member of the Security Service [or the Secret Intelligence Service], and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of the [that] Service, or

(c) at the time of the offence charged he was a member of GCHQ, and it was necessary for him to make the photograph or pseudo-photograph for the exercise of any of the functions of GCHQ.

(2) In this section "GCHQ" has the same meaning as in the Intelligence Services Act 1994.

[Ss.1A and 1B were inserted by the SOA 2003, ss.45(1) and (3), and 46(1). S.1A ) is printed as amended by the Civil Partnership Act 2004, s.261(1), and Sched. 27, para. 60. The words in square brackets in s.1B are inserted, and the italicised word is omitted, as from a day to be appointed, by the CJIA 2008, s.69(1) and (2).]

Drafting the indictment

See the guidance given in relation to section 160 of the CJA 1988 (text) in R. v. Thompson (Richard)[2004] 2 Cr.App.R. 16, CA (post, 31-117), which is likely to be carried across to the 1978 Act, although caution will be required as good practice in relation to offences the essence of which is "possession" may not be so readily applied to offences involving an activity such as "taking" or "making".

Ingredients of the offences

The circumstances in which the alleged indecent photograph of a child was taken and the motives of the photographer are not relevant to the question whether the photograph is, in fact, indecent for the purposes of section 1 (1)(a). In a case of "taking" the jury must consider two questions: (a) is it proved that the defendant deliberately and intentionally took the photograph of the subject as disclosed by the photograph produced; and (b) if so, is it indecent? In deciding (b), the jury have to apply the test as stated in R. v. Stamford[1972] 2 Q.B. 391 at398,56 Cr.App.R. 398 at405, of applying the recognised standards of propriety. The circumstances and motivation of the taker of a photograph might be relevant to his mens rea as to whether his taking was intentional or accidental - they are not relevant to whether the photograph is indecent: R. v. Graham-Kerr,88 Cr.App.R. 302, CA; and R. v. Smethurst (John Russell)[2002] 1 Cr.App.R. 6, CA (in which an argument to the effect that the conclusion in Graham-Kerr was incompatible with the right to freedom of expression as guaranteed by Article 10 of the ECHR (ante, 16-119) was rejected). The word "indecent" in section 1(1) qualifies the words which follow it - "photograph of a child". Accordingly, since the jury must of necessity know the age of the child, they are entitled to have regard to that age when answering the question "is this an indecent photograph of a child?": R. v. Owen (C. W.),86 Cr.App.R. 291, CA.

In R. v. Smith (Graham Westgarth);R. v. Jayson[2003] 1 Cr.App.R. 13, CA, it was held: (i) that where a person opens an attachment to an email that contains an indecent photograph or pseudo-photograph of a child, he may be said to "make" that photograph or pseudo-photograph within section 1 (1)(a), and he will be guilty of an offence contrary to that provision if it is established that when he opened the attachment he did so intentionally and with knowledge that what he was making was, or was likely to be an indecent image of a child; (ii) that the mere act of downloading a photograph or pseudo-photograph from the internet to a computer screen could also be said to constitute the "making" of a photograph or pseudo-photograph, and that a person who did such an act intentionally and knowing that the image was, or was likely to be an indecent image of a child, would be guilty of an offence under section 1 (text)(1)(a); and (iii) that in neither case was it necessary to prove that the individual did any act with a view to saving the image on his computer. See also R. v. Bowden (Jonathan)[2000] 1 Cr.App.R. 438, CA (post, 31-114); Atkins v. DPP ([2000] 1 W.L.R. 1427); Atkins v. DPP[2000] 2 Cr.App.R. 248, DC. These authorities were considered in R. v. Harrison (Neil John)[2008] 1 Cr.App.R. 29, CA, in which it was held that where the appellant had accessed legal pornograhic websites in which indecent photographs of children had appeared by way of an automatic "pop-up" mechanism, it was the appellant and not the web-designer who was the maker of the image. As to mens rea, the jury had to be sure that the appellant knew about the "pop-up" activity when he accessed the adult pornographic sites and that, in accessing those sites, there was a likelihood that the "pop-ups" would include illegal images: ibid.

A person who responded to an advertisement offering to supply indecent photographs of children by placing an order for the supply of such photographs could be charged with the common law offence of inciting the commission of an offence of distribution of indecent photographs of children, contrary to section 1 (text)(1)(b), or with an attempt at such incitement (depending on whether the order was received by the incitee); if the incitee supplied photographs pursuant to the order, that supply would constitute a separate and distinct offence of distribution from any offence that might have been committed by virtue of the publication of the advertisement itself: R. v. Goldman (Terence)[2001] Crim.L.R. 822, CA. As to incitement to distribute at common law, see also R. (on the application of O'Shea) v. Coventry Magistrates Court[2004] Crim.L.R. 948, DC (33-88 in the supplement). The common law offence of incitement has been abolished and replaced (in relation to acts done on or after October 1, 2008) by the statutory offences consisting of the doing of acts capable of encouraging or assisting crime under the SCA 2007, Pt 2 (post, 33-92 et seq.).

To be guilty of an offence contrary to section 1 (text)(1)(c), a person must have a view to showing the photographs to another or others; a view only to show them to himself is insufficient: R. v. E.T.,163 J.P. 349, CA. Where indecent images of which the defendant was in possession were left by him in a location where they were likely to be seen by others, his knowledge that this was so would be insufficient to bring him within the subsection; the prosecution would have to show that one of his reasons for keeping or leaving them in that particular location was to enable others to view them: R. v. Dooley (Michael) (Appeal against Conviction)[2006] 1 Cr.App.R. 21, CA.

Where a person provides another with a password to enable him to access data stored on a computer, he may be said to be "showing" him the matter so stored: R. v. Fellows (Alban)[1997] 1 Cr.App.R. 244, CA.

A conspiracy to distribute indecent photographs must relate to distribution to one or more persons outside the conspiracy: R. v. Barker[1998] 5Archbold News 1, CA (97 05014 Z5).

If the defence of "legitimate reason" (subs. (4)(a)) is raised, the issue is one of fact; academic research might be such a reason, but a court would plainly be entitled to approach such a claim with a measure of scepticism: Atkins v. DPP; Atkins v. DPP, ante.

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Protection of Children Act 1978, s.2

2. Evidence

(1) [Repealed by Police and Criminal Evidence Act1984, Sched. 7.]

(2) [Repealed by Magistrates' Courts Act1980, Sched. 9.]

(3) In proceedings under this Act relating to indecent photographs of children a person is to be taken as having been a child at any material time if it appears, from the evidence as a whole, that he was then under the age of 18.

[Subs. (3) is printed as amended by the CJPOA 1994, s.168(2), and Sched. 10, para. 37; and the SOA 2003, s.45(2) (substitution of "18" for "16" in subs. (3)).]

The purpose of expert evidence being to assist the court with information that is outside the normal experience of the court, expert paediatric evidence as to the age of a child shown in a photograph is inadmissible: R. v. Land (Michael)[1998] 1 Cr.App.R. 301, CA.

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Protection of Children Act 1978, s.3

3. Offences by corporations

(1) Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

See R. v. Boal[1992] 1 Q.B. 591,95 Cr.App.R. 272, CA (ante, 30-103).

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Protection of Children Act 1978, s.4

4. Entry, search and seizure

(1) The following applies where a justice of the peace is satisfied by information on oath, laid by or on behalf of the Director of Public Prosecutions or by a constable, that there is reasonable ground for suspecting that, in any premises, there is an indecent photograph or pseudo-photograph of a child.

(2) The justice may issue a warrant under his hand authorising any constable to enter (if need be by force) and search the premises ... and to seize and remove any articles which he believes (with reasonable cause) to be or include indecent photographs or pseudo-photographs of children.

(4) In this section "premises" has the same meaning as in the Police and Criminal Evidence Act 1984 (see section 23 of that Act).

[This section is printed as amended and repealed in part by the CJA 1988, s.170(1) and Sched. 15, para. 61; the CJPOA 1994, s.168(1), (2) and Scheds 9, para. 23, and 10, para. 37; the Courts Act 2003, s.109(1), and Sched. 8, para. 199; and the PJA 2006, ss.39(1) and (2), and 52, and Sched. 15, Pt 4.]

For section 23 of the 1984 Act, see ante, 15-123.

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Protection of Children Act 1978, s.5

5. Forfeiture

Section 5 of the 1978 Act (as substituted by the PJA 2006, s.39) gives effect to the schedule to the Act. This provides for a revised procedure for the forfeiture of indecent photographs of children which are lawfully in the possession of the police, along with any other material that it is impossible to separate from the indecent photographs. The procedure applies irrespective of how the police came to be in possession of the photographs. It is similar to the procedure, under Schedule 3 to the CEMA 1979, for forfeiture, and for the bringing of proceedings in a magistrates' court for the condemnation of any thing as being forfeited, under the customs and excise Acts (as to which, see ante, 25-424 et seq.). Court proceedings will only be required where a person claims the photographs or other property and the police dispute the claim. Any such proceedings will be initiated in a magistrates' court, and they are deemed by the schedule to be civil proceedings. There is a right of appeal to the Crown Court.

Unlike the original section 5, the schedule does not provide for an order for forfeiture by the court before which a person is convicted of an offence under the 1978 Act. It is anticipated, however, that a court before which such a conviction occurs will wish to consider the question of forfeiture. To that end, it may take advantage of the general power to make a "deprivation" order under section 143(2) of the PCC(S)A 2000 (ante, 5-439), but it should be noted that that power only applies to offences consisting of the unlawful possession of property. It would, accordingly, be prudent, where it is desired to provide the court with a sound basis for making a deprivation order, to ensure that there is included in the indictment, assuming that it is otherwise appropriate, a count alleging "possession" of the photographs in question, whatever other allegations may be included. For this purpose, a count under section 1(1)(c) of the 1978 Act (ante, 31-107), or under section 160 of the CJA 1988 (post, 31-115), will suffice.

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Protection of Children Act 1978, s.6

6. Punishments

(1) Offences under this Act shall be punishable either on conviction on indictment or on summary conviction.

(2) A person convicted on indictment of any offence under this Act shall be liable to imprisonment for a term of not more than ten years, or to a fine or to both.

(3) A person convicted summarily of any offence under this Act shall be liable -

(a) to imprisonment for a term not exceeding six [12] months; or

(b) to a fine not exceeding the prescribed sum for the purposes of section 32 of the Magistrates' Courts Act 1980 (punishment on summary conviction of offences triable either way: GBP1,000 or other sum substituted by order under that Act), or to both.

[This section is printed as amended by the MCA 1980, s.154, and Sched. 7, para. 171; and the CJCSA 2000, s.41(1) (substitution of "ten" for "three" in subs. (2)). The latter amendment took effect on January 11, 2001: Criminal Justice and Court Services Act 2000 (Commencement No. 1) Order 2000 (S.I. 2000 No. 3302). In subs. (3)(a), "12" is substituted for "six", as from a day to be appointed, by the CJA 2003, s.282(2) and (3). The increase has no application to offences committed before the substitution takes effect: s.282(4).]

An offence contrary to section 1 of the 1978 Act is a specified sexual offence within Schedule 15 to the CJA 2003 (ante, 5-299).

As to the current value of "the prescribed sum", see ante, 1-75aa.

Guidelines for the sentencing of offenders who fell to be sentenced before May 14, 2007, were to be found in the decision of the Court of Appeal in R. v. Oliver (Mark David) ([2002] EWCA Crim 2766); R. v. Oliver (Mark David); R. v. Oliver (Mark David)[2003] 1 Cr.App.R. 28, CA. For offenders falling to be sentenced on or after that date, see Part 6A of the Sentencing Guidelines Council's definitive guideline for sentencing for sexual offences (Appendix K-101).

In a case of downloading child pornography from the internet, it makes no difference to culpability whether the material was paid for or not; and downloading for research purposes would provide only minimal mitigation: R. v. Langham (Christopher)[2007] L.S. Gazette, November 29, 27, CA ([2007] EWCA Crim. 3004).

As to the making of a sexual offences prevention order under section 104 of the SOA 2003 in respect of offences under section 1, see R. v. Terrell (Alexander James)[2008] 2 Cr.App.R.(S.) 49, CA, ante, 20-324.

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Protection of Children Act 1978, s.7

7. Interpretation

(1) The following subsections apply for the interpretation of this Act.

(2) References to an indecent photograph include an indecent film, a copy of an indecent photograph or film, and an indecent photograph comprised in a film.

(3) Photographs (including those comprised in a film) shall, if they show children and are indecent, be treated for all purposes of this Act as indecent photographs of children and so as respects pseudo-photographs.

(4) References to a photograph include -

(a) the negative as well as the positive version; and

(b) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.

[(4A) References to a photograph also include -

(a) a tracing or other image, whether made by electronic or other means (of whatever nature) -

(i) which is not itself a photograph or pseudo-photograph, but

(ii) which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and

(b) data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a); and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph.]

(5) "Film" includes any form of video-recording.

(6) "Child", subject to subsection (8), means a person under the age of 18.

(7) "Pseudo-photograph" means an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph.

(8) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(9) References to an indecent pseudo-photograph include -

(a) a copy of an indecent pseudo-photograph; and

(b) data stored on a computer disc or by other electronic means which is capable of conversion into a [an indecent] pseudo-photograph.

[This section is printed as amended by the CJPOA 1994, s.84(1), (3); and the SOA 2003, s.45(2) (substitution of "18" for "16"); and as amended, as from a day to be appointed, by the CJIA 2008, s.69(1), (3) and (4) (omission of italicised word, insertion of words in square brackets). The insertion of subs. (4A) applies only in relation to things done after it takes effect: 2008 Act, s.148(2), and Sched. 27, para. 24(1).]

It follows from the provisions of subsections (2) and (4)(b) that to download or print out images from the internet is to "make" a photograph within section 1(1)(a): R. v. Bowden (Jonathan)[2000] 1 Cr.App.R. 438, CA.

An image made by an item which obviously consisted of parts of two different photographs could not be said to appear to be a photograph, and thus a "pseudo-photograph" within section 7(7): Atkins v. DPP ([2000] 1 W.L.R. 1427); Atkins v. DPP[2000] 2 Cr.App.R. 248, DC.

A video which consisted of two parts, the first part being a recording of a television programme showing scenes of a doctor examining the genitalia of a naked boy who suffered from a genital defect, together with commentary which explained what the doctor was doing, and the second part being some of the previous pictures, without the commentary, slowed down and focusing in particular on the manipulation by the doctor of the boy's penis, was capable of being an indecent photograph; the jury were entitled to look at the second part as being a quite separate set of images to those which constituted the programme, and to determine whether the images were, objectively speaking, indecent, applying what they considered to be recognised standards of propriety: R. v. Murray (Arthur Alan)[2005] Crim.L.R. 387, CA.

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Criminal Justice Act 1988, s.160

160. Possession of indecent photograph of child

(1) Subject to section 160A, it is an offence for a person to have any indecent photograph or pseudo-photograph of a child in his possession.

(2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove -

(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or

(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or

(c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and he did not keep it for an unreasonable time.

(2A) A person shall be liable on conviction on indictment of an offence under this section to imprisonment for a term not exceeding five years or a fine, or both.

(3) A person shall be liable on summary conviction of an offence under this section to imprisonment for a term not exceeding six [12] months or a fine not exceeding level 5 on the standard scale, or both.

(4) Sections 1(3), 2(3), 3 and 7 of the Protection of Children Act 1978 shall have effect as if any reference in them to that Act included a reference to this section.

[This section is printed as amended and repealed in part by the CJPOA 1994, ss.84(4)(a) and (b), 86(1) and 168(3), and Sched. 11; the CJCSA 2000, s.41(3) (insertion of subs. (2A)); the SOA 2003, s.139, and Sched. 6, para. 29(1) and (3); and the CJIA 2008, s.148(1), and Sched. 26, paras 22 and 24. In subs. (3)(a), "12" is substituted for "six", as from a day to be appointed, by the CJA 2003, s.282(2) and (3). The increase has no application to offences committed before the substitution takes effect: s.282(4).]

An offence contrary to this section is a specified sexual offence within Schedule 15 to the CJA 2003

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Criminal Justice Act 1988, s.160a

160A. Marriage and other relationships

(1) This section applies where, in proceedings for an offence under section 160 (text) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time of the offence charged the child and he -

(a) were married or civil partners of each other, or

(b) lived together as partners in an enduring family relationship.

(2) This section also applies where, in proceedings for an offence under section 160 (text) relating to an indecent photograph of a child, the defendant proves that the photograph was of the child aged 16 or over, and that at the time when he obtained it the child and he -

(a) were married or civil partners of each other, or

(b) lived together as partners in an enduring family relationship.

(3) This section applies whether the photograph showed the child alone or with the defendant, but not if it showed any other person.

(4) If sufficient evidence is adduced to raise an issue as to whether the child consented to the photograph being in the defendant's possession, or as to whether the defendant reasonably believed that the child so consented, the defendant is not guilty of the offence unless it is proved that the child did not so consent and that the defendant did not reasonably believe that the child so consented.

[Section 160A was inserted by the SOA 2003, s.45(4). It is printed as amended by the Civil Partnership Act 2004, s.261(1), and Sched. 27, para. 127.]

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Drafting the indictment

In R. v. Thompson (Richard)[2004] 2 Cr.App.R. 16, CA, it was said that in cases where there are significant numbers of photographs, the following practice should be adopted in the drafting of indictments, and could be used in selecting the images for presentation in summary proceedings: (i) in addition to specific counts, there should be a comprehensive count covering the remainder; (ii) the photographs used in the specific counts should, if it is practicable, be selected so as to be broadly representative of the images in the comprehensive count; if agreement can be reached between the parties as to the number of images at each level (as identified in R. v. Oliver (Mark David);R. v. Hartrey;R. v. Baldwin ([2002] EWCA Crim 2766), ante, 31-113), the need for the judge to view the entirety of the offending material may be avoided; (iii) where it is impracticable to present the court with specific counts that are agreed to be representative of the comprehensive count there must be available to the court an approximate breakdown of the number of images at each of the levels; this may best be achieved by the prosecution providing the defence with a schedule setting out the information and ensuring that the defence have ample opportunity of viewing the images and checking the accuracy of the schedule; (iv) specific counts should make it clear whether the image in question is a real image or a pseudo-image; the same count should not charge both; where there is a dispute there should be alternative counts; (v) each image charged in a specific count should be identified by reference to its "jpg" or other reference so that it is clear with which image the specific count is dealing; and (vi) the estimated age range of the child shown in each of the images should, where possible, be provided to the court.

As to the advisability of including a count of possession (whether contrary to the 1978 Act, s.1 1)(c) (ante, 31-107), or contrary to section 160 of the 1988 Act),

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Possession

Where a person views an indecent image of a child on the internet and his computer automatically caches the image, unbeknown to him, he could not be said to be in possession of the photograph in the cache for possession requires some degree of knowledge: Atkins v. DPP ([2000] 1 W.L.R. 1427); Atkins v. DPP, ante, 31-108a. The court referred to R. v. Steele[1993] Crim.L.R. 298, CA (firearm in holdall, ante, 24-6), but said that it was not the computer that was to be regarded as analogous to the holdall; it was the computer's cache that was to be equated to the holdall for this purpose.

In R. v. Porter (Ross Warwick)[2006] 2 Cr.App.R. 25, CA, it was held that a person would have possession of indecent images if he had custody or control of them. Where, therefore, the images had been deleted from a person's computer, whether or not he had possession of them would depend on whether or not he had the know-how and the software to allow him to retrieve them, so that it could be said, as a matter of fact, that he had control over them. This applies equally where the images had been deleted from floppy discs: R. v. Rowe (Christopher),172 J.P. 585, CA.

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Defence

The defence under section 160 (2) is available to a defendant, notwithstanding that the prosecution prove possession of an indecent photograph of a child with the mental element identified in Atkins v. DPP;Goodland v. DPP ([2000] 1 W.L.R. 1427), (viz. knowing possession of the article containing the image); it is irrelevant whether the defendant had cause to suspect that the photograph was indecent per se, the issue is whether the defendant had cause to suspect it was an indecent photograph of a child: R. v. Collier (Edward John)[2005] 1 Cr.App.R. 9, CA.

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