Question
I am trying to research a topic and have conflicting opinions.
I refer to the amendment to the Sexual Offences Act 2003, which came into effect in May 2004. This now makes it illegal to posses indecent images of 16 and 17 year olds, where as under the previous legislation, it was legal. I am trying to establish if the law acts retrospectively whereby someone in possession of such legal images prior to May 2004, would be committing an offence if they kept the same images once the law changed. I would appreciate the interpretation of the Cheshire Constabulary.Answer
Your enquiry has been passed to me today and I must apologise for the delay in responding to you.
In simple terms it was not an offence to possess indecent photographs of a person aged 16 or 17yrs prior to the instigation of the Sexual Offences Act 2003, which as you quite rightly point out was in May 2004. However, from that moment on it became an offence to take, make, possess or distribute such images.
By way of an example, if a person was arrested in July 2004 and had such an image in their possession that were take or made in April 2004 then we would not be able to charge a person with making that specific image but we would be right to charge with its possession on the day of arrest, i.e. July 2004. Ignorance of the law is no excuse and we must make ourselves aware of changes in legislation.
Question
Thank you for your late response to my question. Your reply has prompted a further question. Let us assume that someone is well up enough to be aware of the change in law and to be honest, I have spoken to many including those in the legal profession who were not aware. If someone had indecent images of 16and 17 year olds on their PC prior to May 2004 and then, being aware of the law change and being an upstanding citizen, they deleted the images, would Cheshire Constabulary prosecute? A simple yes or no will do.
Answer
Hopefully this is a more timely response and, once again, I apologise for the lateness of the last reply.
Your question does not promote a simple ‘yes/no’ answer and I do not want to be drawn in on any specific case by talking generally. You obviously have a specific set of circumstances in mind and, with a little more information from you, I may be able to speak with more authority.
By way of example, if someone had pictures of 12 or 13yrs olds this would not be a relevant issue.The offence of making an image may well be complete but not possession. If deleted and the image has gone beyond simple possession (ie it is now in unallocated clusters), then we would not usually charge someone with possession of such an image on the date of arrest. We may put an offence of possession between dates if it is after the legislation came in. Even so any possession charge is usually global reflecting the collection as a whole, whereas ‘making’ relates to an individual image.
Question
I disagree with your comments. I asked a simple question, if someone attempts to delete illegal images from their PC, but forensics are able to recover them. Would this form the basis of a prosecution. The general public do not know about unallocated clusters or any other technical term, they just know that they pressed the delete button. Someone within Cheshire Constabulary is making decisions about this on a daily basis and I would like to know the answer. This question does not relate to a particular case, it is a general question that I think that the public have a right to know the answer to. It looks very dubious if law enforcement officers are not prepared to inform the public of issues that they could be prosecuted for don’t you think? As I have just pointed out, someone within your force is making these decisions on a daily basis, so if you are not able or willing to answer, perhaps you could pass this on to someone who is in a position to do so. If you are telling me that there is no simple yes or no answer to the question, then it would look like the answer must be that it is discretionary, which has far more serious implications. I would appreciate an answer to the original question which I will rephrase to make it easier for you.
If someone had images on their PC, that were legal, but then because of a law change that was not very well advertised, that person is now in the possession of images that are now illegal. If that person being well informed and law abiding, does what they think is the decent and right thing to do and presses delete on the images, which in their mind is all that they have the ability to do to delete the images. Could this person, who knows nothing about unallocated clusters or any other technical computer term, face prosecution for being in possession of those images which may forensically be recovered? It is a simple enough question.
Answer
regarding your recent e-mails over a point of law. As I am sure you
are aware the Crown Prosecution Service prosecute cases for the crown and
you may wish to contact your local CPS office with your enquiry given that
DC McIntosh’s replies have not satisfied you.
Please address any further enquiries you may wish to ask of the police to the below address:
Question
Thank you for your response. The results of my research will be published on a website once completed, all communications received will be included there. I am sure that Cheshire Police would have no objections to their views being posted there. I am assuming that you are prepared to stand by what you say. There are two important points that I will be making:
1) Cheshire Police have emphasised that ‘Ignorance of the law is no excuse and we must make ourselves aware of changes in legislation.’, but are unable or unwilling to give guidance on matters that Cheshire Police may actually arrest you for.
2) Looking back through the correspondence to date, DC McIntosh was reading far more into the question than was actually there. I think that the public would have a right to be VERY concerned that law enforcement officers are reading into things that are not stated. If this can happen with a simple question, it is very frightening to imagine where an over active imagination could lead to.