In a recent case at Keith Borer Consultants, a man was charged with making and distributing indecent images of children. In interview, he accepted downloading the images one night with his partner but denied knowledge of distribution of such images.
The Hi Tech Crime Unit went through great lengths to prove that the images had been distributed. It was shown that “eMule” peer-to-peer file sharing software was used to download the images, which were then subsequently shared using the same software. Log files showed that the files had actively been downloaded by others, rather than simply being made available.
Ross Donnelly of Keith Borer Consultants reviewed the evidence and was in agreement with most of the technical nature of the prosecution evidence. He pointed out, however, that files downloaded by eMule are automatically and transparently shared unless the user actively stops this from happening. In this case, the user had simply downloaded the images, which were then distributed unbeknownst to him. Furthermore, Mr Donnelly highlighted the guidance presented upon the CPS’ own website:
“In R v Dooley  EWCA Crim 3093 the mental element required for the offence of possession of indecent photographs of children with a view to distribution was considered. It was held that leaving a selection of indecent photographs of children in "My Shared Folder", for others to view, using a peer to peer network would only attract liability, if it was proved that one of the defendant's purposes for keeping or leaving the images in that location was to enable others to view them.”
After reviewing Mr Donnelly’s report, the prosecution continued on the basis that “he should have known better”. Finally, on the day of the trial Mr Donnelly assisted defence Counsel in putting the technical argument to the Court, which resulted in the prosecution dropping the distribution Count. The defendant was found guilty of the making offences to which he had already pleaded guilty, and the need for a costly trial was avoided. The defendant was subsequently given a suspended sentence, when he would have surely have faced a custodial period if he had been convicted of the distribution offence.