Many laypeople misread this precedent, as the following contribution tries to explain.
The judgement was based on the meaning of the word “possession” as it applied to image files recovered from a computer disk drive. The files had been “deleted” by the operating system, but the actual data still existed on the disk. It was accessible using specialist forensic software which analysed the disk independently of the normal operating system functions.
There was no dispute that the computer disk itself was in the possession of the defendant, but the Appeal Court ruled that in the context of computer images, “possession” should be interpreted as referring to images that are within the defendant’s control, and this was not the case where the images had been “deleted” and the defendant had no access to the specialist software nor the technical ability to have any control of the images.
Some have interpreted this to mean that you cannot be prosecuted of possession if images in your browser cache have been deleted. In particular they conclude that web browsing of dodgy sites is safe as long as nothing is specifically saved in an archive, and browser caching is disabled or cleaned-up before the computer falls into the hands of the police Hi Tech crime unit.
Unfortunately, at the moment the image is displayed on your screen, it is in your possession. Even by the meaning of “possession” interpreted in R v Porter it is within your control. At that moment, and unless you can claim one of the specific defences to its possession, by viewing the image you are committing an offence.
There have been a few cases where evidence of viewing an illegal image has been enough to get a conviction. They have been in the lower (Crown) courts, so official summaries are not on the web. The interpretations indicate that a person viewing an image in a web browser has control over it to the extent that they can save a copy, print it out, or send it to someone else.
So there is little doubt that a judge will tell a jury that if a prosecutor can show an image has been viewed by the defendant browsing a website, they must take this to mean it was in the defendant’s possession.
The only chance of avoiding being convicted is if the defendant can show that they were sent the image concerned without any prior request having been made by them or on their behalf, AND they did not keep it for an unreasonable time.
Remember that is for the defendant to show that this is the case, not for the prosecutor to show it isn’t.
They might be able to do it in the case of an image attached to an unsolicited spam email, but it does not look a promising defence where the possession resulted from browsing web pages.
To anticipate the next question …. if Porter had viewed the images before deleting them, why was his conviction overturned?
To see why, you have to read the judgement very carefully. Porter was indicted of possession of certain images on a particular date. The images being those “deleted” data files recovered from the hard drive and the date being the date when the computer was seized.
The ruling said that because on that date, the images had already been “deleted” and were not under the defendant’s control, the judge in the original trial had not advised the jury correctly.
So R v Porter is not a blanket ruling about deleted image files, but a very specific ruling about whether something was possessed at a particular time. In fact Lord Justice Dyson goes out of his way to make that point:
” It should also be noted that the question before us would not have arisen if the appellant had been charged with possession during the period from the time when he viewed the images until he deleted them.”
Of course in Porter’s case no outsider knows whether the prosecution had any evidence to support a charge of possession at a time between him viewing and deleting the images.
There could have been ISP logs or browser histories available to show when the image was viewed, or the defendant himself may have admitted having viewed the images on a certain date when questioned by the police.
Whatever the evidence, you can be sure that since that ruling prosecutors have taken great care about the date on the indictment involving images in electronic form.
So it is highly likely that intentionally viewing (requesting) images in a web browser would constitute an offence of possession. The only question is one of evidence.
With caching disabled or cleaned-up, there may be nothing on the computer itself to show what was viewed and when, but there could be associated log files at the ISP end, which would establish a case.
And never underestimate the potential for a suspect to incriminate themselves – “Well I saw those pictures, but I only browsed the site. I didn’t save a copy of anything” – would be enough to convict them when this “confession” was read out in court.
In conclusion, and until further cases are decided, you would be well advised to assume
- Looking at an image you can prove you didn’t know would be illegal is ok, so long as having looked at it you do not keep it for an unreasonable length of time
- Requesting an image a jury might think you should have known was illegal could get you into trouble, even if you only possess it for a nanosecond.
nb “What constitutes an unreasonable amount of time depends on all the circumstances of the case.” (The Ministry of Justice).
A lawyer told Backlash “You’ll just have to be patient. Like knifecrime, where possessing a knife is legal if you have been attacked “recently”, gradually cases are establishing how long is “recent” and until then, tough”.