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Alex Hughes
Alex Hughes, Solicitor/Partner
Category: UK Law
Satisfied Customers: 2409
Experience:  Partner in national law firm with 25 years legal experience
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Hi my father has been bailed for possession of 400 indecent

Customer Question

Hi my father has been bailed for possession of 400 indecent images over an 8 month period they have taken his computer and other equipment pending further investigations, it seems because my father has been accessing a peer to peer ? File sharing type website to download music, films and software (all innocent but obviously copyright infringement) we knew of this as he gets us films etc to watch but it seems because he has been using generic searches and downloading hundreds of files before selecting the ones he wants and saving them he has also been picking up indecent material unbeknown to him. These images will have been downloaded within the sites software but not saved to his hard drive or even viewed. On a couple of occasions he opened items that were not what they seemd to be but immediately deleted them, and Once he realised the site was infiltrated by porn he deleted the site and all the software associated with it. This was weeks prior to the police arresting him. He has not used any other peer to peer or porn sites, they will find lots of downloaded films and music etc and none of this will have any kind of explicit content not even legal porn, 400 downloads over that period equates to an average of c. 14 files per week, he would have been downloading hundreds of files in his generic music and film searches. Will the police investigate thoroughly to check that his story stacks up or are they just gong to say 400 images xyz in category 1.2,3,4,5 etc. and make him guilty anyway. He is so worried about what category they will fall into as he has never seen them, he has also been told that this could be hanging around for months as there is a backlog and forensic examinations of this kind take months and if a murder or something of a more serious nature crops up it will drop down priority list etc. he is a caring and loving family man, but he is now allowed no unsupervised contact with his grandkids and all of us are under social services and the schools etc. are to be informed. It feels very much like the downloading is enough for them to assume he is guilty already even though he has explained why he was on this site and how he was using the software. What is the outcome likely to be? Can they bail for as long as they wish? In the paperwork his bail just says to return on a specific date and time over 8 months from now, he has a holiday booked in the autumn and new year, can he go on this? He has not been told he can't use computers etc. should we assume that he shouldn't as my mum has borrowed a laptop to use? We just don't understand the process or what the outcomes are?
Submitted: 1 year ago.
Category: UK Law
Expert:  Jo C. replied 1 year ago.
Hi

Thank you for your question and welcome to Just Answer. My name is XXXXX XXXXX I will try to help with this.

In order to give you an answer tailored to your circumstances, I will just need to ask you some preliminary questions so that I can consider your position from all angles.

Is this his first offence?
Customer: replied 1 year ago.
Yes
Expert:  Jo C. replied 1 year ago.
Thanks for this information.

I'm really sorry if I'm missing the point but I'm not sure what defence he is hoping to raise here? He seems to accept downloading.
Customer: replied 1 year ago.
Yes he was downloading music and films he did not know he had downloaded any indecent images he was searching for say 60s music and thousands of files would come back which he would leave to download within the sites software he would then go back and save the files he wanted to his hard drive, the images must have cropped up within his search but he did not view or save them? I was hoping maybe one of your experts understood how these files are inadvertently been picked up and guide us as to how we might prove he did not intend to pick up indecent ones because he had not viewed or saved them like the normal music and film files. So you have no dwfence even if youve picked up a few files amongst thousands in a generic search? Does the law not have any provision for such material being picked up
In searches by accident, how can you be guilty if it had not been viewed or saved ie it was deleted with all the other files that he did not want and not view either?
Expert:  Jo C. replied 1 year ago.
Can we try to narrow this down into relevant factors? I think your post above exceeds the word length so I can view some of it.

You are saying that he downloaded 400 images by accident? Are they all indecent?
Customer: replied 1 year ago.
No he would have downloaded tens of thousands of files in that period but they have said 400 of them may be classed as indecent. I was hoping for advice from an expert in this field as even the solicitor he got at the police station said that this isn't a lot given the way he was using the file sharing site. My questions are do they seek to clarify intent by looking for context ie how many files he downloaded in total? Do they look whether he opened them or just deleted without viewing? What are they looking for to prove his guilt because I'm astounded if 400 files amongst thous that were deleted and NOT opened of saved will send him to prison as a sex offender? I also asked about his bail conditions ie what he should do about holiday booked etc.?
Customer: replied 1 year ago.
He isn't accepting downloading 400 images as far as he's concerned he did generic searches within the websites software, he brought thousands of files down through a broad search but did not select any indecent ones for openjng or saving - is this downloading in the eyes of the law, what does the law say downloading is?
Expert:  Jo C. replied 1 year ago.
The offence is in mere possession.

You do need to know what you are possessing to be guilty of possession. The case of Atkins v DPP confirms that knowledge is a requirement.

Obviously though, the issue there is credibility. The crown are free to disbelieve his account that he didn't know he had these. 400 is a very large number. Some of them may not be indecent within the requirements. I was a police station rep for years before I went to the bar and a policemen will always give you his best case

There are other cases that cover the legitimate reasons argument but that isn't really quite what he is raising here .

They can bail for as long as they wish but they will be under pressure to act expeditiously. The delay will be while his equipment is forensically examined

Unless he is on bail with conditions not to leave the country, which is not likely on police bail, he is free to leave the uk as long as he attends his bail back date.

Its very unlikely he had any conditions of bail as they are rare on police bail. Anyway there is a wealth of cases that say that conditions that prevent use of the Internet at all even for convicted sex offenders are too broad so that can't be the case here.

Can I clarify anything for you?

Jo
Customer: replied 1 year ago.
Is 400 a large number in your opinion or in the eyes if the law especially given the context that he was downloading thousands of files over that period? (I ask because his solicitor has said its not high, 10k is high) Is him not opening the files or viewing or saving them mitigating factors or will the forensic examinations not extend this far? Can you help me understand what the law says Especially regards XXXXX XXXXX and sentencing? Are there any experts in this particular field on this site?
Expert:  Jo C. replied 1 year ago.
Its not a large number in terms of the sentencing guidelines but its a large enough number to be a bit inconsistent with the argument that a person didnt knew they were there I'm afraid.

I am a criminal specialist of many years and there is absolutely no prospect of a caution for 400 images.
Customer: replied 1 year ago.
I repeatedly asked for clarification of what the law says about how they are obtianed, whether they are viewed or saved and what are mitigating factors, I need an expert in this field, who understands how it is possible to inadvertently end up with files wihtin a broad search criteria but not even open or use them in anyway. I repeatedly stated this and I do not believe it was understood in the context of digital downloading, i also asked for clarity about how it will be forensically examined, what constitutes possession and downloading etc as there is much more context to this than 400 images that have been focussed on. In additition i still don't understand how comprehensive the forensics will be. I have not been given any depth into the specific laws on this the answers were short and abrupt with no real detail and the final conclusion stated in no uncertain terms is contrary to what our solicitor has said since we are still pending forensics.
Expert:  Alex Hughes replied 1 year ago.

My name is XXXXX XXXXX I'm happy to help with your question today.

The advice given by my colleague is correct.

What else would you like to know?
Customer: replied 1 year ago.
I'm not saying the answers are wrong but the context has been misunderstood as is highlighted by the Atkins v dpp response. Atkins vs dpp is a possession argument, my father does not possess the images they have not been saved or opened on his computer at all. If I can try and simplify (if you dnt use file sharing which i knw you wont its difficult to picture) perhaps with an everyday example you can relate to more eAsily, say you went on google and typed kids 3d films into the search engine, the initial returns would more than likely be legitimate 3d films for kids, but it would still return loads of results across many pages, say on pages 20 etc onward that you don't even go to there are some dodgy search results you dont look at them but your ip address shows that those pages have come back on your search. On a file sharing site you type in a generic search like 3d films for kids (might sound dodgy to you but we had a 3d telly and asked my dad if he could get us a few 3d films to watch) and it returns thousands of results within those there are dodgy ones you don't know about, and never did because you saved the ones you did want and then just deleted the rest of the results for the search by closing the search software down, these images could never be classed as being In possession as they were search downloads on the site software that were never saved or opened on the computer - as such I'm just trying to establish what the law says about actual possession vs inadvertently downloading a link to an image that you havent even looked at! I appreciate it's hard to understand how 400 links get downloaded but if you look in your Internet temporary files for example there will be far more stuff in there than you've looked at because all the links download, sorry it is hard but I think someone with experience of digital downloading (rather than say a hr employment lawyer for eg) may have some perspective on it. It doesn't really matter now as I think I have chosen the wrong mechanism to get the depth of answer I require and have asked for a refund! Thanks for trying!
Expert:  Alex Hughes replied 1 year ago.
OK understood.

I will need some time to review the case law and advise.

Presumably he denies ever opening or viewing the indecent images?



Expert:  Alex Hughes replied 1 year ago.
By the way: do you know what led the police to your father?

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