Caught Looking Revisited

November 1, 1998

In the last issue I set out the background to a case involving the automatic caching function of browser software which led to the conviction of a young man for the possession of indecent photographs of children contrary to s.160 of theCriminal Justice Act 1988. The appeal against conviction was heard in the CrownCourt at the very end of August 1998 and was successful. Appeals in the CrownCourt are by way of a re-trial so the Court should hear the same evidence as was presented in the magistrates’ court.

The appeal hearing did not get very far. The prosecution called the same twotechnical experts that they had called in the magistrates’ court – one afairly computer-literate police officer and the other a computer forensics expert. Both had, in the lower court, given evidence which was largely sympathetic to the defence case – confirming the automatic caching function of web browsing software and accepting that it was impossible to establish that theimages of the defendant’s hard drive had been downloaded deliberately. Their helpful evidence, however, had not been enough and the young man had still beenconvicted. In the appeal hearing both witnesses’ evidence seemed to be even moresupportive of the appellant’s case and was possible clearer and better thought through.

At the conclusion of their evidence the prosecution barrister rose toindicate that in his view it was impossible for the prosecution to establish that `Simon’ had been responsible for the offending images ending up on his hard drive and invited the judge to overturn the conviction.

This should, of course, have happened in the magistrates’ court. It is difficult to say why it did not. The prosecution in the lower court certainlyseemed to have the `bit between their teeth’ and this together with the frenzy around the issue of paedophile material on the Internet appeared to prevent them from objectively reflecting upon the technical matters in the case. It also didnot help that both the prosecuting solicitor in the magistrates’ court and thethree magistrates trying the case were self-confessedly IT-phobic. The net result was that it was an uphill struggle to get them to see beyond the fact that indecent pictures were on the computer and to consider how they had actually got there.

By the time the case had got to the Crown Court (there was a period of four months between the trial and the appeal), the matter appeared to be in the handsof prosecutors with a better grasp of the technical issues and a more objectiveview of the evidence.

The case has, however, had some unpleasant consequences that, even with the successful appeal, will be difficult to remedy. The defendant lost his teaching job as a result of the prosecution. Although it is now open to him to reapply for teaching posts, he is acutely aware of the likely impact of his having to explain that he has been out of work for over a year because he was wrongly prosecuted for possessing child pornography. The local press has offered to givethe outcome of the appeal coverage similar to the conviction, but the defendant is so wary of the roasting he initially got that he is finding it difficult to co-operate. There seems to be little chance of correcting the scurrilous coverage in the national tabloids. No one is going to compensate the defendant for the hours spent on the case or the pointless meetings with his probation officer.