Control of paedophile images
Retrieval of evidence
Evidence will usually be recovered from a computer
hard disk, floppy disks, CD-ROM, DVD, memory sticks,
CF cards or organisers/PDAs. These items will have
been seized at the scene and recorded in accordance
with existing procedures. It is essential that the security
of the media is evidentially sound between seizure and
production to the examiner. Continuity of handling will
also need to be proved. Furthermore, the security of
exhibits at the office of the examiner is equally important.
Formation of evidence
During the examination, a suggested method is that
the images and any technical report produced should
be exhibited on an encrypted disk or disks and be
password controlled. The disk(s) can then be made
available to legal representatives and the court for
viewing. The CD-ROM or DVD must be kept in secure
storage when not being used and a system set in place
for it to be signed in and out when it is removed from the
storage facility.
It is recommended that printed copies of paedophile
images be made in only the most exceptional
circumstances and certainly not as a matter of routine.
Any printed copies that are made should be controlled
with the same level of security as the original media.
As some courts do not yet have the facility to view
images from a DVD or a CD-ROM, it may be necessary
for the purpose of court proceedings to have the
evidential material transferred from the disk onto a video.
Alternatively, arrangements could be made to install
temporary computer facilities to view images via monitors.
These and any court computer systems used should
be cleared of any paedophilic material after use.
It is essential that all material relating to this type of offence be subject to the appropriate protective
marking scheme. The minimum level of classification should be ‘restricted’. Possession of this
material is in itself an offence and each enquiry will also contain personal information and, in some
cases, identities of victims.
As with any prosecution, it is essential that evidence is preserved, retrieved and stored in a correct
and systematic manner to ensure continuity, integrity and security of the evidence. This will ensure
that the best possible evidence remains intact and avoids criticism at any future court proceeding.
Interview
The disk is available against signature to the case officer
or any other person conducting an interview of the
suspect. The contents of the disk can then be shown
and referred to in the interview room by use of a laptop.
When referring to the images during the interview, the
investigator will use the identifying reference in the same
way as on the target computer or storage medium.
Prior to interview, the defence solicitor will be allowed to
view the images. This consultation will take place at law
enforcement premises under controlled conditions.
Advice/charge
After interview, a decision will be made whether to
charge and bail or, in Scotland, release on a written
undertaking, if appropriate. Other alternatives would be
to defer the charge and bail pending advice from the
Crown Prosecution Service (CPS) or, in Scotland the
Procurator Fiscal Service (PFS). Arrangements will be
made for the CPS or PFS in Scotland to view the disk at
a mutually agreeable location. At all times, the disk must
remain in the possession of the case officer (in Scotland
the Forensic Computer Units). The CPS (PFS) will issue
confirmation of charges or advise as necessary
Defence access
CPS and ACPO Memorandum of Understanding
Section 1(1)(a) of the Protection of Children Act
1978 prohibits the “taking or making” of an indecent
photograph or pseudo-photograph of a child.
‘Making’ includes the situation where a person
downloads an image from the internet, or otherwise
creates an electronic copy of a file containing such
a photograph or pseudo-photograph. To fall within
the definition of an offence, such “making” must be
a deliberate and intentional act, with knowledge that
the image made was, or was likely to be, an indecent
photograph or pseudo-photograph of a child
(R v Smith and Jayson, 7th March 2002).
Section 46 of the Sexual Offences Act 2003 amends
the Protection of Children Act 1978, and provides
a defence to a charge of “making”. The defence
is available where a person “making” an indecent
photograph or pseudo-photograph can prove that it was
necessary to do so for the purposes of the prevention,
detection or investigation of crime, or for the purposes
of criminal proceedings.
This reverse burden defence is intended to allow
people instructed to act for defence or prosecution
who need to be able to identify and act on the receipt
of an indecent photograph or pseudo-photograph,
to deal with such images. It also creates an obstacle
to would be abusers and those who use technology
to gain access to paedophilic material for unlawful (or
personal) reasons.
The Memorandum of Understanding between the CPS
and ACPO is the result of the enactment of section 46
of the Sexual Offences Act 2003. The Memorandum
of Understanding is intended to provide guidance to
those who have a legitimate need to handle indecent
photographs of children by setting out how the defence
provided in section 46 of the Sexual Offences Act 2003
may be applied. The Memorandum provides guidance
to the Police Service, CPS and others involved in the
internet industry, in order to create the right balance
between protecting children and effective investigation
and prosecution of offences.
After charge, defence solicitor / counsel will always be
permitted access to view the images at reasonable hours
at either the office of the case officer or the examiner.
The accused will only be permitted access whilst he/she
is in the company of their legal representative.
It is important to understand that the defence may
request access to either the original hard disk or a copy
of the image taken by law enforcement. The request
is likely to be for them to be able to check the integrity
of the evidence or to examine patterns of activity against
the allegations. It is expected that defence and law
enforcement respect and understand each other’s
responsibilities in these circumstances. The defence have
a duty to defend their client and law enforcement has
a duty to ensure that they do not unnecessarily create
more paedophile images or compromise sensitive
confidential material.
It will not always be the case that the defence need full
access to a forensic computer image. Likewise it may not
be always appropriate for law enforcement to deny access
to a forensic computer image.
In cases of difficulty
In cases of difficulty, in order to decide whether or not
to release such illegal material, the following approach
can be adopted:
a) A meeting should take place between defence and
prosecution technical witnesses in order to establish
whether it is necessary to copy and supply a complete
forensic image to defence technical witness.
b)If it is necessary the defence technical witness
may be given private (or controlled) facilities
to examine the image at law enforcement premises
at reasonable hours.
c) If the person in charge of the investigation considers
it necessary, then the work may take place other than
at police premises if the defence technical witness
signs a memorandum of undertaking.
d) Where no agreement is reached, the case can
be referred to the court to hear argument and
issue directions.
e) If the court directs that a copy of the illegal material
should be given to the defence technical witness,
that person must sign a memorandum
of undertaking.
Once the memorandum of undertaking is signed, the
person in charge of the investigation may supply a copy
of the relevant forensic images to a technical witness.
The undertaking aims to ensure that the images are kept
in a secure environment and not copied outside of the
terms of the undertaking. All persons having contact
with the images will be expected to sign the undertaking.
Breach of the undertaking may leave the signatory open
to prosecution.
Magistrates court hearing
(not applicable in Scotland)
The first hearing at a magistrates court will normally not
involve the production of the disk. However, this will be
dictated by local practice. Advocates must be very alert
to the need for the preparation of a full file, prior to the
determination of mode of trial. It will usually be impossible
for magistrates to decide the seriousness of the case
without viewing the disk, which will not be available
at the first hearing.
When the subsequent hearing in the magistrates court
is due, either for mode of trial, committal for sentence
or, exceptionally, for sentence in that court, the case
officer or forensic examiners will provide the disk at the
hearing. The parties in the case will view the images.
At all times when dealing with the court, the case officer
or examiner will retain control of the disk. Following the
hearing, the disk will be returned to the appropriate
storage facility and signed back in as before.
Committal
(not applicable in Scotland)
At committal proceedings at the lower court, it will rarely
be necessary to show the disk. It may be necessary if the
defence wishes to submit there is no case to answer
but, usually, the viewing of images will only be of evidence
in jury points, such as the age of the victims or whether
the images are indecent. Arguments surrounding the act
of ‘making’ or ‘taking’ can normally be determined without
having to view the images. If it becomes necessary for
them to be viewed at the hearing, the case officer
or examiner will be warned to attend court. Following the
hearing, the disk will be returned and signed back in
as before.
Plea and directions hearing (PDH)
(not applicable in Scotland)
At the PDH, the case officer or forensic examiner will
be warned to attend. The attendance of the examiner
may be preferable because of the possible arguments
surrounding the technical aspects of the case. Their
advice at this stage may be critical to the case. The disk
will be available at court for the judge, defence counsel,
and for the prosecution. The case officer or examiner
will retain control of the disk, but may release it to the
defence subject to the usual undertakings as set out
above. Following the hearing, the disk will be returned
and signed back in as before.
Crown court/magistrates court trial
(High court/sheriff court in Scotland)
At the trial, the best evidence will be direct evidence
of an image from the CD-ROM or DVD. The case officer
or forensic examiner will attend court and will have
a laptop computer and appropriate screen facilities
available for display, dependent on local practices. The
images can be presented in a number of ways including
the use of a PowerPoint or similar presentation on the
disk. It is suggested that a warning about the content of
the disk is included on the physical disk and also at the
beginning of any presentation involving illegal material.
By using these methods of presentation, a consistent
approach should develop enabling all within the criminal
justice system to become used to evidence being
presented in this manner.
By adopting a common approach, the issue of security
and integrity of the evidence is enhanced. Relevant
information about each presented image can be placed
on a preceding slide to assist any subsequent process.
For example: identifying references, file names, location
on disk etc. could be included.
If a point is taken as to the authenticity of the prime
images, or of the CD-ROM or DVD, then a defence
examiner may be allowed to examine the imaged
copy. This will take place in the environment of law
enforcement premises or otherwise under the supervision
of the forensic examiner at some other premises.
There must be an auditable system in place to track
the movement of the CD-ROM or DVD. Each time it is
removed and returned, it must be signed in or out.
The same applies to any printed material.
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