No. 2008/00215/B2
 
Neutral Citation Number: [2008] EWCA Crim 2712
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Tuesday  4  November  2008

B e f o r e:

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Judge)

MRS  JUSTICE  SWIFT

and

MR  JUSTICE  CRANSTON

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R E G I N A

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CHRISTOPHER  ROWE
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Mr J Edwards appeared on behalf of the Appellant

Mr C Morgan appeared on behalf of the Crown
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J U D G M E N T

THE LORD CHIEF JUSTICE:  
1.  This is an appeal by Christopher Rowe against his conviction on 13 August 2003 in the Crown Court at King's Lynn before His Honour Judge Lawrence and a jury of twelve counts of possession of an indecent photograph of a child contrary to section 160(1) of the Criminal Justice Act 1988.  The appeal follows a Reference by the Criminal Cases Review Commission.

2.  On 3 November 2003 the appellant was sentenced to six months' imprisonment, concurrent on all counts, and appropriate notification orders were made.

3.  The appellant sought leave to appeal against conviction.  The grounds of appeal, which were very lengthy, included the following contentions: 

"1.  The Crown had a duty to prove to the requisite standard that the [appellant] knowingly possessed those images, not just the floppy disks that the 'deleted' images were found on.  Virtually no evidence was adduced by the Crown as to the significance of the 'deletion' of the images and the impact that that fact may have had upon the concept of 'possession'...."  

A further ground asserted that the judge had failed, in any way 

"to direct the jury in his summing-up as to the possible impact that the fact of the 'deletion' of the images may have on the concept of 'possession' or on the defence that the [appellant] had advanced under section 160(2)(b)." 

4.  The single judge refused the application on the basis that the trial judge had correctly identified the two relevant questions for the consideration of the jury: first, whether the appellant had been in possession of the floppy disks; and second, whether the appellant had been aware that the floppy disks contained indecent images.  The application for leave to appeal against conviction was not renewed. 

5.  On 16 March 2006 this court allowed an appeal and quashed the conviction in R v Porter [2006] EWCA Crim 560.  The appellant, Ross Porter, was charged with similar offences to those of which the appellant was convicted.  In relation to the counts in the indictment which alleged possession of relevant indecent material which had been deleted from Porter's computer, this court observed: 

"21.  It is true that the context of possession of photographs or pseudo-photographs on the hard drive of a computer is different from the context of possession of drugs.  Making allowance for those differences, however, in seeking to elucidate the meaning of 'possession' in section 160(1) in the present context, we see no reason not to import the concept of having custody or control of the images.  In the special case of deleted computer images, if a person cannot retrieve or gain access to an image, in our view he no longer has custody or control of it.  He has put it beyond his reach just as does a person who destroys or otherwise gets rid of a hard copy photograph.  For this reason, it is not appropriate to say that a person who cannot retrieve an image from the hard disk drive is in possession of the image because he is in possession of the hard disk drive and the computer."

The appeal in relation to the counts where this problem arose was allowed on the basis that the judge had directed the jury that:

"25.  .... the only issue for them to decide was whether the defendant knew that the images were indecent or likely to be indecent.  He did not direct them about the factual state of affairs necessary to constitute possession and the result is that a vital issue was wrongly removed from the jury.  Nor did he direct them about the mental element required to constitute possession.  It seems to us that in principle this would require proof that the defendant did not believe that the image in question was beyond his control.  However, as we have not heard argument on the point, we express no concluded view on it."

6.  The fact of the present case are summarised in the Reference.  On 22 August 2002 police officers, who were in possession of a warrant, visited the home where the appellant lived with his parents and searched the premises.  They seized twenty floppy disks from the appellant's bedroom, eight of which contained a large number of deleted files containing images of child pornography.  Two of the disks also contained movie images.  A total of 124 images were contained on the eight disks.  Three of the disks contained a total of six movie files with pornographic images of children.  The computer tower was also seized.  

7.  The appellant was arrested and interviewed.  When asked whether the disks were his he said, "I imagine so", although he later said that he could not say for certain because he had not paid a lot of attention when the search was being conducted.  His account in interview was that he had never knowingly accessed a child pornography site.  He also said that he had never bought floppy disks, although he did use them, and that the disks in question probably came with the computer in a package when he acquired it.  The appellant said that he had not down-loaded any pornographic images onto his hard drive or onto the disks and had no idea where the images came from.  When charged, the appellant said, "I did not have them in my possession. I did not make them".  

8.  The defence case statement asserted that: "(1) at no time did the appellant knowingly own or have possession of any pseudo-photograph of children of an indecent or pornographic nature; (2) he denies ever purchasing any floppy disks with pornography on those disks of which he had knowledge; (3) he denies ever down-loading pornography from internet web-sites through his or any other computer and placing those pseudo-photographic images of an indecent or pornographic nature on the floppy disks seized from his parents' house; (4) he denies receiving knowingly any floppy disks containing pseudo-photographs of a pornographic or indecent nature."  At paragraph (g) of the statement the assertion is made that the pornographic indecent images were in actual fact deleted files on the disks and not readily accessible to view.  That subparagraph goes on to state that the defence rely on the statutory defence that, "even if the disks are proved to be in the [appellant's] possession, he had no knowledge of the material".  
9.  During the course of the trial a former friend of the appellant was called as a witness.  It was suggested to him in cross-examination that he might have been responsible for the disks which were seized from the appellant's bedroom.  That raised a new issue.  In effect it suggested that the appellant was to be acquitted on the basis that he had never had possession of any of the material, disks or otherwise. 

10.  An officer from the Computer Crime Unit gave detailed evidence for the Crown about the material found on the disks.  Among other things he said that he had recovered 124 pornographic deleted images of children from eight of the floppy disks.  He explained in evidence that deleted images are not deleted completely until the space that the image occupies on the floppy disk has been used.  When he was cross-examined he said that the images covered by the twelve counts on the indictment came from eight of the floppy disks that had been seized.  He explained the software which he had used to examine the disks and to recover the images.  When it was put to him that all the files containing these images had been deleted he replied, "That's correct, yes".  He also said that the disks had been used in the appellant's computer but that it was not possible to say whether the pornographic images had been viewed on that computer.

11.  The defence called an expert, Mr Vella.  In his evidence he stated that the file names matching those from some of the disks were found on the computer's hard drive, which suggested that the disks had been used in the computer.  However, he differentiated between the disks being used in the computer and the images being viewed.  He stated that he did not believe that any of the relevant pornographic images had been down-loaded or viewed on the seized computer.  He explained the reasons for that conclusion and he added that if the disks had been planted, the person who planted them must have used them in the computer.  However, in cross-examination, and by way of contrast to the evidence of Detective Constable Turrell, the defence expert said that the images subject to counts 9 and 10 had not been deleted and that they could have been viewed on the appellant's computer.  But he repeated that there was no evidence that they had been.  He complied a schedule, which was before the jury, which identified the files on each floppy disk, the individual counts in the indictment, the images that were relevant to each count and the status of each image.  

12.  Both defence and Crown experts at trial were agreed that the appellant's computer did not have the necessary software to enable him to recover the deleted images.  Nor was there any evidence to suggest that the appellant had the necessary specialist knowledge to enable him to access them.

13.  One of the problems with the trial, however, was the suggestion that the disks had been planted.  When he came to give evidence the appellant appeared to resile from what he had said in the course of his interview, where he conceded that he "imagined" that the disks were his, by saying that although he had said that in interview, he did not know then what was on them.  He gave positive evidence to suggest, at any rate as a possibility, that his former friend may have been responsible for the disks found by the police in his bedroom.  

14.  That appears to have been the most critical issue at trial.  When the judge came to sum the case up to the jury (and it is worth bearing in mind that his summing-up long predated the decision of this court in Porter), he directed the jury on the issue of possession and the appellant's knowledge or awareness of the contents of the disks.  He said: 

"Does the totality of the evidence satisfy you so that you are sure that the defendant -- first of all, that he possessed those floppy disks, because he said, 'No, I didn't'.  He is now saying in court, 'No, I didn't.  They were planted there by somebody.  I know absolutely nothing about them at all', although at the police station he acknowledged that they were his.  Secondly, if he was in possession of them, was he aware of what was on them?  Looking at the totality of the evidence, has that evidence satisfied you so that you are sure that he was aware?  If it has, then he is guilty on all such counts as you consider that applies to.  But, if you are not sure, and you feel it is possible, quite reasonably, on the evidence that he did not know what was on those floppy disks, and you cannot be sure that he did know, then it will be your duty and your pleasure to return verdicts of not guilty."

15.  The summing-up was adjourned overnight.  The judge returned to this issue the following morning.  He said:  

"First, just to recapitulate the issue: if the totality of the evidence has satisfied you so that you are sure that the defendant knew that he had these floppy disks, and he was aware of what was on them –- that is, the indecent images of children -– then undoubtedly your verdict will be guilty.  But, if you come to the conclusion that the position is, or may be, that he was unaware that they were there because they were planted all around his bedroom in different places, and in those circumstances he had no knowledge at all of what was on the floppy disks, then it will be your pleasure to acquit him." 

16.  In fairness to the judge, the summing-up was reflective of the trial as it had unfolded before him and the issues raised by the Crown and the defence.  The significance of the deletions, both as a matter of fact and as a matter of law, was far from apparent at that time, although it is plain that the defence case statement raised the issue of the deleted files.  The matter was canvassed both with the police officer responsible for the investigation and with the expert called on behalf of the defence.  Indeed for some time there was some confusion about precisely what was contained on the disks referred to in counts 9 and 10.  It is now been fully investigated by the Commission.  Having regard to the investigations of the relevant software manufacturer and detailed examination of the evidence of the police officer, it is as plain as can be that the images in counts 1-8 and 11 and 12 were indeed deleted, but that those referred to in counts 9 and 10 were not.  

17.  Among other responses to the Commission's inquiry -- and we treat this in effect as fresh evidence -- the detective officer told the Commission that specialist software would have been required to undelete these files and that the appellant's computer did not have any such software.  He also said in relation to count 9 that on his analysis the last occasion when that file had been accessed was 11 May 2000; and that so far as the item in count 10 was concerned, the file had last been accessed on 29 March 2000.  

18.  The Commission has expressed the view that this court would be likely to conclude that the appellant did not possess the images the subject of counts 1-8, 11 and 12, as they had been deleted from the floppy disks in question before 22 August 2002, which was the date specified on the indictment; that there was no specialist software available to the appellant which would have enabled him to undelete the files; and that there was indeed no evidence that he had any specialist knowledge which would have enabled him to recover the images which had been deleted.  The Commission further expressed the conclusion, as we have already indicated, that the images subject to counts 9 and 10 were active at the time when the disks were seized.  

19.  The Commission identifies a distinction between the facts of Porter and the present case.  Porter related to images deleted from a computer hard drive, whereas the present case involved in ten of the twelve count images deleted from the floppy disk.  Like the Commission, we can see no distinction in principle in the context of the problem of possession for the purposes of section 160 of the 1988 Act, whether the deletions were made from a hard drive or a floppy disk.

20.  There is a further distinction, namely that in Porter the appellant himself admitted that he had deleted the images, and so it is possible that he could have been charged with possession of the images before the deletion had taken place, or indeed as part and parcel of the deletion.  The appellant in the instant case never made any such admissions.  This distinction too has no relevance to the essential legal principles; but we cannot help observing that if Porter's conviction was quashed, notwithstanding that he had deleted the images in question, on evidential grounds at any rate, the appellant's case in relation to the possession issue where deletion arises is stronger than that of Porter.  

21.  The Crown suggests that this reference may raise the problem of change of law cases addressed by this court in R v Cottrell and Fletcher [2007] EWCA Crim 2016.  However, we do not see this as such a case; nor do we think that section 42 of the Criminal Justice and Immigration Act 2008, which came into force on 18 July 2008, bears on our decision.  We must briefly explain our reasons.  Before the decision in Porter this court had not addressed the problem of possession of indecent images of children in the context of items deleted from a computer or computers in a defendant's possession.  Porter explained the principles.  It is binding upon us.  It is not suggested that it was wrongly decided or decided per incuriam.  If, following his application, the appellant had been granted leave to appeal, whether by the single judge, or, following refusal by the single judge, if he had applied to this court, we must assume that the principles now explained in Porter would have been decided in this case some time before Porter was decided.  Until Porter was decided, however, the law had simply not been defined.  

22.  The greater problem is not any possible change of law, but the passage of time.  However, here again the very point addressed in Porter arose for consideration in this case and in particular in the context of the grounds of appeal which were prepared and advanced on the appellant's behalf.  In the context of deleted items, although the issue was not taken as a matter of law at trial, it was certainly addressed as part of the evidence in the case.  

23.  In our judgment, in the particular circumstances here, justice would not be done if we did not permit the argument which would have been sound then (and was taken then) to be deployed, bearing in mind that in the light of Porter it remains sound now.  In short, these convictions were rightly referred to the court by the Commission.  

24.  The problem with the convictions on counts 1-8, 11 and 12 must be acknowledged.  If the issues had been fully addressed before or during the course of the trial, the prosecution might well have sought to amend the dates in counts 1-8, 11 and 12 of the indictment (and perhaps counts 9 and 10 as well).  That would have raised some interesting questions in relation to the expert defence evidence, and indeed the evidence of the investigating police officer.  But what is clear is that the Crown knew in advance of the trial that its own witness had concluded that the deletion problem applied, in his view, to all twelve counts.  What seems clear therefore is this.  In the context of the counts alleging the appellant's possession of the material, knowledge or lack of it was adequately and clearly in issue throughout the trial.  The deletion problem was in our judgment directly relevant to that issue.  Its relevance, however, was never addressed, and certainly never sufficiently addressed.  If it had been, it may be that the Crown would have proceeded by providing entirety satisfactory answers to the problem.  However that may be, during the course of this trial the jury, for understandable reasons, was not directed to consider the potential significance of the fact that the images in counts 1-8, 11 and 12 had been deleted; nor to the potential significance of that fact to the question of knowledge as a necessary ingredient of criminal possession of this material as explained in Porter.  For those reasons the convictions on these counts will be quashed. 

25.  We turn to counts 9 and 10, which were also rightly referred to the court in these terms:

"Had [the appellant] been arrested after the Porter judgment, the Commission is of the view that the prosecution case would have been limited to the two active movie files in counts 9 and 10.  In the circumstances, the jury may well have been persuaded that there was reasonable doubt as to whether the [appellant] had knowledge of the presence of the two active movie image files."

26.  The question whether these counts too should be quashed is not entirely straightforward.  We do not propose to repeat the passages in the summing-up which have already been quoted in the course of this judgment.  Porter demonstrated that the issue for the jury was whether the appellant was in possession of indecent images of children, not possession of the floppy disks.  When the judge directed the jury to consider the totality of the evidence as it bore on the question of knowledge or awareness, it seems significant to us that the attention of the jury could not be, and certainly was not directed to the possible significance of the deletion of the indecent images in relation to the ten remaining counts which of course formed part of the totality of the evidence.  Although we reject the suggestion that the judge failed to direct the jury that the issue was whether the appellant was in possession of the indecent images (because that is precisely what he did), the trial proceeded on the premise that in the context of knowledge, the totality of evidence, which by definition included the evidence on the counts where deletion had occurred, should and could be examined by the jury and considered by them as throwing light on, and of potential relevance to, the Crown's case that the appellant did indeed have the necessary knowledge.  In fact, nothing in the evidence relating to the ten counts which, as they stood before the jury and which have now been quashed, provided support for the Crown's case as advanced at trial in relation to counts 9 and 10. 

27.  It is always necessary to reflect on the direction to the jury rightly given by the judge that they should consider each count separately in the factual context of the individual case.  The Commission has reminded us that the Crown's case at trial was that the appellant possessed 124 indecent images on a number of floppy disks.  The absence of the ten counts from the indictment would have effected a significant change in the facts which were presented to the jury because in the absence of those ten counts, only eight still images taken from the two movie image files would have remained for the jury to consider.  

28.  In his letter to the Commission dated 23 January 2007, Mr Michael Cole, the appellant's solicitor, encapsulates the significant submission now advanced to us for the purposes of this appeal.  He said:

".... the fact that the Porter decision applies to the majority of the files on those floppy disks leads .... to the conclusion that had a full and comprehensive direction on the significance of deleted files been given to the jury .... then they might have come to a different conclusion.  It is quite one thing for a jury to conclude that [the appellant] was unaware of the existence of a considerable number of files on a number of disks where the significance of deletion has not been explained to them, but if the correct arguments had been addressed then even if those two images [on the two counts] were not deleted, the jury might have come to the conclusion that as there was no evidence that they had in fact been read on that computer, [the appellant] could have been in ignorance of their existence."

29.  In the particular circumstances of this case we cannot avoid the clear impression that if the jury had appreciated all these realities and been directed to and had an opportunity to apply them to the instant case as they considered their verdicts, they might very well have entertained reservations about whether the appellant's guilt on counts 9 and 10 was proved.  In those circumstances the convictions on these counts too are unsafe and they must be quashed. 

30.  There are two footnotes to this judgment.  We must briefly address an important but tangential aspect of the Reference.  At page 17 we find footnote 3 which reads:

"At paragraphs 56-58 [of the judgment of this court in Cottrell and Fletcher], it was stated that in exercising its discretion whether or not to refer a case to the Court of Appeal, the Commission should have regard to the court's practice regarding out-of-time leave applications.  It should also be noted that in R(DRCP) v CCRC [2006] EWHC 3064 (Admin), in which the matter of the Commission's exercise of discretion was the central issue, the Divisional Court had ruled (paragraph 28 of the judgment) that the Commission is under no obligation to have regard to the practice of the CACD."

To the extent that this footnote implies that the Commission is entitled to apply the observations of the Divisional Court in R(DRCP) v CCRC when they are inconsistent with the observations made by this court in Cottrell and Fletcher, it is, with respect, unsound.  It is not open to the Commission to choose between those two authorities.  On this topic Cottrell and Fletcher is authoritative; R(DRCP v CCRC is not.  

31.  The second footnote is this.  We should not leave the case without expressing our respect for the tenacious and determined efforts made by Mr Michael Cole, the appellant's solicitor at trial, on behalf of his client to secure this favourable outcome.  It is obvious that he applied considerable energies and resources on an unfunded basis.  His conduct was in the best tradition of his profession.