This offence of possession of an indecent image is actually rarely used by the police and Crown Prosecution Service as it is generally easier to prove an allegation of making an indecent image under Section 1 of the Protection of Children Act 1978.
This is because in order to prove ‘possession’ the prosecution must prove that an individual had custody and control of the photographs stored on a device in order to possess them. This means he or she must be capable of, or in a position to, retrieve them in the sense, for example, of being able to produce them on the screen, make a copy of them or send them to someone else. This is of particular relevance in the case of deleted images. Proof of the physical element in such cases will depend on consideration of (a) where the photographs are stored on the device (b) the means by which they could be retrieved in the sense set out above and (c) whether the defendant has the wherewithal to retrieve them i.e. has the technical knowledge and software / other equipment required to do so.
The mental element is knowledge. A defendant must knowingly have custody and control of the photographs found on the device in question.
On the other hand a person is not in possession of photographs which were automatically “cached” on a computer’s memory after accessing a website unless he or she knew of the existence of such caches.
Additionally there is a statutory defence to a charge of possession of indecent images under section 160(2) namely that an individual had a legitimate reason for having the photograph or pseudo-photograph in his possession; or 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 that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
As can bee seen the law in this area is far from straightforward and as such if you are being investigated or have been charged with possession of indecent images it is crucial that you receive expert advice from a specialist indecent images solicitor without delay.
Please feel free to call our office 24 hours a day 7 days a week for initial free and confidential advice.