Tuesday, 31 May 2011

Karma Police


Extreme Pornography: Law and Evidence

How do you know you haven’t got extreme pornography on your computer?
Does someone else have access to your system? Could they have downloaded pornography without your knowledge? Would you know if a friend sent you a “joke” email containing pornography; which you didn’t open, but your computer cached? Have you ever followed a link to a site that didn’t give you any warning that it contained pornography?
These are just a few of the possibilities that police investigating extreme pornography offences have either denied or ignored.

Section 63 CJIA 2008
Briefly, Section 63 of the Criminal Justice and Immigration Act 2008 created the new offence of possessing extreme pornographic images. It could be argued that this legislation was introduced to extend Obscene Publication Act offences (which require publication or distribution) to the simple possession of such images.
Thus the consumers rather than the producers of pornography are criminalised, facing up to three years in prison and registration on the sex offenders register. Certain types of consensual adult-on-adult pornography are caught under the Act, including images that portray acts that are legal to perform in real life.
Below is a case study of a prosecution under Section 63 the CJIA 2008. I represented the defendant after he was interviewed by the police. He has given his express consent for this blog: so that others might be aware of the dangers of s63 of the CJIA 2008.
It should clearly demonstrate that police do not necessarily understand this law, IT evidence or indeed pornography itself.

CASE STUDY
The defendant was originally arrested regarding an unrelated financial allegation, which was unfounded and eventually dropped. In investigating the original allegation, the police seized two laptops after searching the defendant’s home address. They performed a “speculative search” of the laptops and discovered a single thumbnail sized image which they classified as extreme pornography.

The defendant returned to the police station on bail. He was notified that the financial matter would be subject to no further action. He was then arrested and cautioned on suspicion of possessing an extreme pornographic image. He waived his right to legal advice, and was interviewed without the benefit of a solicitor advising and representing his interests.
He assumed that as the more serious sounding financial accusation had been dropped that surely a single pornographic image he didn’t remember downloading could easily be explained away.
Surely?

THE INTERVIEW
Whilst preparing the defendant’s case, I read the police ROTI (unabridged written transcript of interview); listened to the tape recording of the interview in full; transcribed it verbatim; then compared the tape recording against my transcript and the police’s transcript.
From this it was clear that the police had made three critical errors in interview.
They pertained to: law; computers (IT forensics); and evidence (pornography).

THE LAW – When interviewing the defendant, the officers summarised a small section of the extreme pornography offence s63 of the CJIA 2008. Incorrectly. Without explaining it. They then demonstrated that they did not understand the law at all, as they asserted that the image in question had been graded under the COPINE scale. This is a rating system used to categorise the severity of indecent images of children. It has nothing to do with extreme pornographic images.
Yet with two police officers asserting this was correct and no solicitor present to disagree or advise on the correct legal position, how was the defendant to know that?

COMPUTERS – IT FORENSICS – Material can be sent to a user’s computer via the internet without the owner’s knowledge, consent or request in a number of ways. These include pop-ups, the contents of an otherwise legitimate download from news-groups, spam emails, unopened messages, pictures posted in legitimate chatrooms or forums, avatars (users’ visual icons), corrupted files which cannot be opened by the user, web-crawlers and malicious software scripts, such as trojan horses, to name a just a few.
The defendant stated that he hadn’t specifically downloaded the image in question, that he had no memory of seeing it and that it might have appeared, unrequested, via pop-up or another way, without his knowledge. However the police interviewing the defendant denied these possibilities; and said that if an image was on his computer he must have downloaded it.
The defendant then argued that other people had access to his computers and he wouldn’t know everything they had looked at or downloaded. The interviewing officer accused him of fabricating friends who might have used his computer in order to blame someone else. Despite the fact that a properly conducted IT forensic examination might have established a provable evidence trail.
For example, if another user logs into their personal email account on a friend’s computer, then an image is downloaded, then they log into their personal Facebook page, all within a few minutes; a Magistrate or jury might be entitled to draw the inference that that user downloaded that image and not the owner.
The police also failed to exhibit the image in question in interview and described it instead, which deprived the defendant of his right to comment on it. What they failed to mention was that the image was thumbnail sized (very small). In certain computer operating systems and webpages, images can be created in a “cache” on the computer without the user necessarily knowing or realising.
The interview also avoided the possibility that the image in question could have been deleted in a timely fashion by the defendant upon realising what it was, which is a specified defence under s65 (2) (c) (ii); but instead remained stored on the computer (unknown to the user), waiting to be overwritten, only to be found upon later examination.

EVIDENCE – PORNOGRAPHY - The defendant had a significant amount of normal sized non-extreme pornographic images, of many different types, styles and genres, on his computer. Despite this, police examination only discovered a single small image which they classified as extreme pornography. Some defendants have thousands of supposedly extreme images on their computers. This defendant had a single thumbnail sized image
This could be seen as emblematic of police failure to understand pornography: which is after all their evidence against a defendant. Hence they failed to appreciate the reasonable inference that a single small extreme image amongst thousands of other legal pornographic images indicated that it was unlikely that the defendant had requested or downloaded it.
Ultimately, in interview, the police attempted to persuade an unrepresented defendant to admit that if he had an extreme pornographic on his computer he must have downloaded it of his own volition.
This is incorrect in law, fact and evidence

EPILOGUE
At the defendant’s Early First Hearing at the Magistrate’s Court I requested an IT expert’s report to establish whether it could be proved that the image had been transmitted to the defendant’s computer without his knowledge; or whether another user had accessed it without the defendant’s knowledge.
Upon receiving a request for the digital evidence from my IT expert, the Prosecution had to admit that the image in question had been lost. Given the absence of any evidence, they decided to drop the prosecution.
Karma?

CONCLUSION
Many police officers do not understand the law, evidence and IT issues regarding s63 of the CJIA 2008. Not only does this have serious implications for defendants who have already pleaded guilty to extreme pornography offences; but it also applies to other sexual and computer based offences.
So, do you really know what’s on your computer? Do you know how it got there?
Will the police if they arrest you?

6 comments:

  1. The answer is to always plead innocent and take it to court. The only way these ridiculous laws will be changed is through a series of test cases. Unfortunately, the embarrassment for many mean that often they will acquiesce and bow to pressure every time.

    I'd be very interested in any cases that come up relating to the Coroners and Justice Bill 2009 specifically relating to non‑photographic pornographic images (i.e. drawings).

    Please get in touch at tim.pilcher@comicbookalliance.co.uk or visit my blog: http://sexdrugsandcomicbooks.blogspot.com/

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  2. Yes, certainly true to say that utilising one's right to legal representation is good advice. I think this sample case illustrates a number of well-established (though unaddressed by 'the establishment') issues.

    Run-o'-the-mill coppers don't have a very sophisticated knowledge of certain less familiar areas of the law. But also, the law would appear to be pretty badly put together in certain areas.

    Having read the article, I am reminded that I am not very clear on the law myself (not that I have as much of an obligation to be clear on it as someone _implementing_ it of course) and I am reminded of a discussion I was having with a friend at a party last year. She's a senior officer specialising in child protection cases in the police force, and in the course of talking about certain deficiencies in the law, she pointed out a few areas where the 2003 bill actually improved things a bit.

    So, I'm not fully up to date on everything -- for example, in the case above, I wonder what the law defines as 'extreme pornography' anyway? Would we know whether something even seen briefly in passing by accident constituted illegal content, let alone something that we had chosen to download in an area that the law erroneously defines as improper?

    Yes, it's a complicated area and one in which the law is clumsy, poorly developed, and most of all (I am sad to say) probably a reflection of an ignorant, frightened, prejudiced groundswell of the UK voting population.

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  3. Thank you both for posting your insightful and interesting comments.



    I agree with you both that the law is exceptionally unclear; raising questions about how consumers of pornography are supposed to know in advance whether they are in possession of material which is illegal.


    Clarifying the law through a series of test cases (as happened in the Staffordshire “fake-snuff” Trial, which I hope to blog about soon) seems an extremely unfair burden on individual defendants.



    Tim:


    I agree with your concerns regarding the “Dangerous Cartoons” provisions of the Coroners and Justice Act 2009. I am aware of a few prosecutions under that legislation, most of which were “add-on” charges to other offences.


    I hope to blog about that soon, too. In the meantime, there is some discussion of the Act on the Backlash website: http://www.backlash-uk.org.uk/wp/?page_id=547


    If you hear of any arrests/interviews/prosecutions under this new law, please feel free to pass on my twitter contact as @ObscenityLawyer and I would be happy to advise further.



    JL:


    Regarding your question about illegal content viewed “briefly in passing by accident”- there is a specified defence under section 65 (c)(i) of the Act, reproduced below:


    “65


    (c)that the person—


    (i)was sent the image concerned without any prior request having been made by or on behalf of the person, and


    (ii)did not keep it for an unreasonable time.”


    However, to my knowledge the period which constitutes an “unreasonable time” period is yet to be defined.



    DISCLAIMER


    Finally, I would suggest that although Tim states that “The answer is to always plead innocent and take it to court” - not all police, lawyers or prosecutors understand the issues surrounding pornographic representations; and some defendants may not have a defence, especially under Section 63 (7) (c)and(d), reproduced below:



    “An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following -


    (c)an act which involves sexual interference with a human corpse, or


    (d)a person performing an act of intercourse or oral sex with an animal (whether dead or alive)”


    However, as the Staffordshire case proved, the question of what is “realistic” is in the eye of the beholder. So why should the legal burden be on the possessor?


    Obscenity Lawyer

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  4. What is the stance regarding online storage?

    If you are emailed "obscene" material to a webmail account you are unlikely to actually download the emails to a device.

    Also, is the CPS guidance on the Obscene Publications Act still correct?

    I find it terribly hard to believe that you could be convicted for the publication or possession of images depicting "fisting" or "piss play".

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  5. A very informative piece. Especially as I did not (along with many others I would imagine) did not know about the new laws that have come into effect, it seemed to be a bit of a silent passing (if your not well informed) especially with regards to the Dangerous Cartoons Act.

    As more and more people become aware of this silent law, I imagine individuals running to delete/destroy/execute the contents of their hard drives while wondering if they will still be carted away...

    From my own bit of research that I have done over the past few days it would seem that no one is quite clear on how this will all pan out and how it is to be enforced as there have been only (I think) two cases specifically relating to these areas alone.

    One thing is certain though, this subject matter has opened my eyes, I used to believe that the law was made in the best interests of the people, was fair and just and was administered correctly. What I have read in this article and other sources would indicate that this does not seem to be the case....And as such...I am forced to think about things very differently.

    I look forward to your subsequent blogs on the proceeding topics you mentioned. I hope you will still write them!

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  6. "I find it terribly hard to believe that you could be convicted for the publication or possession of images depicting "fisting" or "piss play"."

    Unfortunately, those guidelines are currently accurate. But they are only guidelines.

    However, as my latest blog on the Gay Obscenity Trial of the Decade argues, this may change...

    ReplyDelete