Re: Indecent pics of children and possession

The Todal goes:

"Derek Potter" <me@xxxxxxxxxxx> wrote in message
news:434t12pb8fsscrlhck4l8eccg89lp3hftf@xxxxxxxxxx
On Mon, 20 Mar 2006 11:11:53 +0000, Cynic <cynic_999@xxxxxxxxxxx>
wrote:

Any illegal material contained therein is
therefore on my HDD shortly after i open the email program.

mens rea !

I'm a bit vague about this but I seem to recall a defence based on the
fact that malware may have downloaded an illegal image. Presumably one
could argue that [Outlook Express] is malware? :)

Yes, in fact it is clear from the judgment that I quoted at the beginning of
the thread that the courts would not convict you on the basis of an
unsolicited image that you immediately delete. On the other hand, it seems
that the police could prosecute if they so wished, and leave it to the jury
to decide whether your action in deleting it was that of an innocent man or
that of an experienced porn-collector who knows that he can retrieve the
image whenever he feels like it. That is why I think the judgment is rather
unsatisfactory - by leaving the decision to the jury it encourages the
police to prosecute more people.

And as far as I'm concerned -- and I'm sure many other people feel the
same way -- the prospect of being charged in the first place is
already way further than I ever want to go, regardless of whether I'm
found not guilty in the end.

That's why the idea of "checking out" possible links to child porn to
see what they're all about is so utterly wrong-headed.

Anyway, a lot of the relevant law is to be found in the Atkins judgment at
http://www.bailii.org/ew/cases/EWHC/Admin/2000/302.html

"In short, it is my conclusion that whilst "making" includes intentional
copying (Bowden), it does not include unintentional copying."
"Once again, therefore, I prefer Miss Malcolm's argument that knowledge is
an essential element in the offence of possession under s.160 so that an
accused cannot be convicted where, as here, he cannot be shown to be aware
of the existence of a cache of photographs in the first place."


--
AH


.

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