As mentioned in an earlier article the extreme pornography provisions will come into force on 26 January, 2009.
There is not much “clear” guidance to be honest on the Ministry of Justice document only provides a concise summary of what the legislation itself says. There is some “guidance though” and here is a summary of the more interesting stuff from the Guidelines.
(1) With regards to deleting images, the Ministry of Justice Guidelines state that “case law supports the view that, in normal circumstances, deleting images held on a computer is sufficient to get rid of them, i.e. to divest oneself of possession of them. An exception would be where a person is shown to have intended to remain in control of an image even though he has deleted it – that will entail him having the capacity (through skill or software) to retrieve the image. Porter  _ WLR 2633.”
I did refer to this issue back in May 2008 and wrote that “possession of digital content is also problematic from a technical point, and simply deleting dangerous images may not be enough to avoid prosecution. A recent Court of Appeal decision with regards to deleted images involving child pornography (R v Porter  EWCA Crim 560) established that it may not be so easy to get rid of images from one’s computer.
Following the decision of the Court of Appeal, in the scenario of Joe knowingly downloading child pornography (or for that matter extreme pornography) but deciding to delete them with no intention to undelete or recover them, Joe would expect to avoid possession and could have a defence, if the images were in deleted state and unrecoverable by Joe at the alleged time of possession and Joe does not have in his possession software which is capable of recovering deleted images or there is no evidence to suggest that Joe tried to recover the deleted images by such software.
Following Porter, it would be a matter for the jury to decide whether the deleted images were within the control of Joe having regard to all the factors in the case, including his knowledge and particular circumstances and the available evidence.” Porter was reinforced in another recent Court of Appeal decision in R v. Rowe  EWCA Crim 2712. At trial, experts agreed that Rowe would have needed specialist software to access the deleted files, which he did not appear to have. It was not possible for them to prove whether the deleted files had actually been viewed. The last time that the non-deleted files had been accessed was years before the date on the indictment.
(2) In terms of Accidental Access, the Ministry of Justice Guidelines state that “the offence is not targeted at those who accidentally stumble across extreme pornographic images while surfing the Net. As with the position regarding deleted images the key issue will be whether the person knowingly has control or custody and therefore possession of the image in question and does not keep it for an unreasonable length of time.”
In my view, this will depend upon the nature of “accidental access” and whether there was any intention to “keep the images somehow” after the “accidental access”. There are software, which, for example, can recover images from the cache files of popular Internet browsers.
(3) In terms of the “Sex Offenders’ Register” issue the Ministry of Justice Guidelines state that “there are very limited circumstances in which people convicted of the new offence would be made subject to notification requirements under part 2 of the Sexual Offences Act 2003. Offenders must be aged _8 or above and receive a sentence of two years’ imprisonment or more. This is the maximum sentence available in respect of possession of bestiality and necrophilia images and towards the top of the scale for the other categories of material.
Judges would be aware that a certain sentence length would trigger notification requirements and a sentence of two years or more would reflect the concerns of the court about particular aspects of a case, such as the amount and severity of the material or the number of previous convictions.”
With regards to the sentencing issues it is worth reading what I wrote back in May 2008 Extreme Pornography: Sentencing Issues as this piece discusses the Court of Appeal’s approach to sentencing in possession of child pornography prosecutions. A similar approach is expected to be adopted for the crime of possession of extreme pornographic images.
(4) The Ministry of Justice also encourages users who come across extreme pornographic images on the Internet to report them to the government’s favourite watchdog, the Internet Watch Foundation. I do NOT, however, agree that the IWF can determine whether the images are potentially in breach of UK legislation.
Based on due process principles, it should be up to the courts of law to decide on matters of illegality and an “administrative private body” should not be making judgments on illegality especially where there are serious concerns for “freedom of expression”.
(5) Finally, in the FAQ section, the Ministry of Justice tries to answer the question of How can I get rid of material if I think it is illegal? The response given is If the material is on a computer, you should delete it. If it is in another form, such as paper, video or DVD, you should destroy it and dispose of it responsibly.
I would still recommend reading the full Ministry of Justice Guidelines document which is provided in a PDF file.
[Blog entry by Yaman Akdeniz]