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It is an offence, in the UK, to possess an indecent photograph of a child. Most users of Internet know that such images are not rare, and can even be acquired innocently. One particular issue has now been settled. Can one can be guilty of the offence of possessing an indecent photograph even though one was not aware that one had it?
The case is Atkins v Director of Public Prosecutions; Goodland v Director of Public Prosecutions Times March 16th 2000. Several issues arose, but one is significant here. The defendant argued that he had no knowledge of the existence of certain images on his hard disk. These had been placed there by his browser. The browser had retained copies of images browsed, and had stored them in a cache. A cache is best described as a temporary storage of data by a computer for the better management of data flow. Caches are usually designed to be invisible to the user, and Internet Explorer in particular goes out of its way to hide the data cached. The issue, in the Judge's terms, was whether the defendant could possess images, and so commit the offence, without knowing they were there.
The Judge's answer is however only partially useful.
He drew a parallel between possession in this context. and possession in other cases. There was a famous case of R v Steel 1993 CLR 298. The defendant had a holdall, and inside the holdall were various objects including a gun. He had the holdall, and he had the gun. He knew he had the holdall, he claimed to be unaware of te gun. Did he possess the gun? The answer in that case was that, if he knew that he had the holdall, then he would be deemed to have possessed what was in it. In this case, the defendant asserted, (and assertion may be all it was), that he did not know of the existence of the cache. The Judge therefore found that this was equivalent to not knowing that he had possession of the holdall. He was not guilty of the offence in respect of these images.
The judgement did not deal with some further complications ...
Most people using browsers do know that what they see on the screen is cached, or retained, by their browsers. Nevertheless, the major browsers go to considerable lengths to hide these caches from the average user.
I know that I am quite unable to locate the Internet Explorer cache using standard Windows software, but that I can do so using other programs. Even then, hurdles are put in my way. I also use Netscape, and I expect that Netscape does cache material, but I have never looked for the material which is cached, and I assume that it is hidden. I do not know however how it is hidden, or where it is hidden, or whether I have software which would be able to open the cache for inspection.
A further complication is that although that items are stored within the cache, they are deleted automatically after a short period by the browser software, and sometimes they will be deleted quickly if the disk space is needed. Thus I may think that I have something when I do not.
It is not clear that the judge's analogy holds up entirely. I know that there are many things in my house even if I have no idea where they might be. Perhaps my daughter has hidden her school report, but I still know what it is, and that it is in the house and therefore under my control, even if breaches of the convention against torture might be required to extract its exact location.
The judge's decision looks helpful, but if, after reading this article, you have discovered what you did not know before: that your browser software keeps copies of the sites you have visited, then the degree of innocence which might have allowed you a defence according to the judge, has already been lost. Sorry.
A further issue arises. A malicious web author can control the size of the images on the page. An image which viewed full size might be a standard size, and appear in the cache as such, may have appeared on the page seen by the visitor as no more, for example, than a full stop.There is no way to tell that the user did not see and could not have seen the image he is later accused of downloading/creating.
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