Indecent Images – Smoke without Fire?

Picture the scenario…

You’ve got a client who’s been arrested on suspicion of possessing indecent images of children. He says he’s innocent, but when you receive disclosure months later it’s not the vindication that was promised; instead you’re told that dozens of indecent images of children have been found on your client’s computer and he is to be formally charged with making and possessing indecent images of children.

Your client maintains, despite the seemingly compelling evidence, that he’s innocent. Should you believe him? After all, there’s ‘no smoke without fire’, right?

Our experience

It is common, in our experience, for the evidence relied upon by the prosecution to simply consist of the presence of illegal imagery on a device, without any consideration of how it came to be present - and whether a defendant knew or even suspected that it could be there. Indeed, the Streamlined Forensic Reporting system encourages simple factual reporting without the context. It might seem implausible to suggest that someone could have indecent images without knowing about it, but we’ve seen this on frightening number of occasions in the past.

Real-world examples 

• A defendant who had searched for, and accessed, legitimate adult pornography on their computer, something OFCOM report 10.1 million men and 3.7 million women did in May 2023 alone. After 'clicking through' a series of different websites, a number of indecent images of children from one of those sites were automatically cached by the web browser in an area of the computer that is not directly accessible to the user. These were found by the police and formed the totality of their case. Upon reconstructing the webpage, however, we were able to show that these images were far down a page full of otherwise lawful pornography, with no evidence that a user had ever scrolled down and seen them.

• A defendant who had downloaded a single file, with a benign name, containing thousands of pornographic images. Within this file were a handful of indecent images of children which were identified by the police and formed the basis of a criminal charge. On inspection we were able to show that there was no evidence that any of these images had been accessed on the device they were recovered from.

• A defendant who visited chat platforms, in which large quantities of lawful (but often distasteful) images were shared. The platforms were accessed via a mobile phone and required the user to 'scroll back' through extensive chat in order to see the content. There were isolated illegal images within the chat which were found and reacted to by the police. We determined, however, that there was no evidence that the accused person had ever seen these images.

• A defendant who purchased a second-hand computer upon which police located indecent images. Analysis identified when a change of ownership appeared to have taken place, and showed that the illegal images pre-dated this. A similar example related to a second-hand USB hard disk drive - analysis of hidden ownership information was able to show that illegal material was not linked to the computer seized from a defendant.

• A defendant whose ‘friend’ accessed illegal imagery on the accused’s computer. In the case in question this was demonstrated clearly because email and social media accounts attributed to the friend had been accessed during the same browsing session. Had this not been the case, more subtle analysis of surrounding activity, for example an assessment to see if other websites accessed in the browsing session are consistent with the overall interests of the owner, would have been needed.

These are only a handful of the casework examples we have seen over the years.

What should you take away from this? 

The simple answer is that in a digital setting there can be ‘smoke without fire’, as it is possible to unwittingly possess indecent imagery but the law requires knowledge of possession to be guilty of an offence (see Section 1(4)(b) of the Protection of Children Act 1978 and Section 160(2)(b) of the Criminal Justice Act 1988, and the case law R v Porter [2006] EWCA Crim 560 and R v Okoro (No. 3) [2018] EWCA Crim 19).

Next steps

Keith Borer Consultants employ digital forensics experts specialising in computer, cloud/social media, mobile phone and portable device (e.g. tablets) evidence. So, if you have a client who tells you they weren’t in possession of indecent imagery when the police say they were, please get in touch to request a full, independent review of what’s been found.

Call us on 0191 332 4999 or email kbc@keithborer.co.uk.