A Focus on the Possession Offence
4.5 Role of Technological Developments and ‘Knowledge’
Arguably, the element of knowledge was easier to establish before the popularity of computing increased. As computer systems were sparse amongst society in comparison to what is now witnessed, the distinction between a non-‐computer literate individual and a computer expert was greater. However, now with such an abundance of systems, this distinction is no longer so clear.
473 K. Gant, 'Crying over the Cache: Why Technology has Compromised the Uniform Application of Child Pornography Laws' (2012) 81 Fordham L. Rev. 319, 319
474 N. Vidmar, ‘Generic Prejudice and the Presumption of Guilt in Sex Abuse Trials’ (1997) 21.1 Law and Human Behaviour 5
475 C. Coleman, 'Jury age limit to be raised to 75 in England and Wales' BBC News (BBC News, 20 August 2013)<http://www.bbc.co.uk/news/uk-‐23764925?utm_source=dlvr.it&utm_medium=twitter> accessed 20 August 2013
476 J. D. Griffith, T. M. Libkuman & D. A. Poole, ‘Repressed memories: The effects of expert testimony on mock jurors' decision making.’ (1998) American Journal of Forensic Psychology
Technology now plays a significantly larger role in many lives and the sales figures of personal computers have experienced a substantial growth over the past twenty years. Knowledge of computing is at an all time high and information technology is now a significant part of school curriculums with plans to introduce it to children as young as five477. The average computer user is now arguably comparative to the computer expert of
ten or fifteen year’s prior. Therefore it is questionable as to whether everyone who has now undertaken compulsory education possesses enough knowledge automatically to infer the requisite degree of knowledge for possession of files on their system. Although doubtful, one thing that is clear, people now have a greater understanding of the way that their digital devices function, with computing now forming part of education curriculums from an early age.
There appears little guidance and literature published on the subject of determining knowledge in this context and a number of issues are apparent. First the comparison between the computer hobbyist or enthusiast and the computing academic student must be made.
The first possesses no formal qualifications; merely a vested interested in technology and devotes time to understanding their system. The other engages in an academic process, graduating with knowledge of their taught curriculum. In this case, the enthusiast may possess significantly more knowledge, but without formal qualifications, it may be difficult to prove. Conversely, does attaining a computing based degree automatically impart the requisite level of knowledge onto the suspect? Given this scenario, it is arguable that a jury may find it easier to determine knowledge based on the factual existence of a degree certificate. However, it could be argued that any difficulties faced by a defendant may be mitigated by the requirement to obtain permission from the Director of Public Prosecutions (DPP) to prosecute, but this is unlikely to offer much assistance in reality 478. Here, the DPP
could intervene in cases where prosecution would not be in the public interest. Yet, reliance on DPP intervention alone is still an unsuitable compromise for dealing with the difficulties
477 S. McCaskill, 'New National Curriculum To Teach Five Year Olds Computer Programming' (TechWeek, 2013) <http://www.techweekeurope.co.uk/news/national-‐curriculum-‐ict-‐education-‐ computing-‐121214> accessed 20 August 2013
478 S. Easton, 'Criminalising the Possession of Extreme Pornography: Sword or Shield?' (2011) 75 JCL 391
caused by establishing possession. In turn, decisions made by the DPP in practice may fail to identify the true facts of a case and therefore prevent unjust prosecution.
Another consideration relies upon the way in which a user interacts with their digital device. Many users can carry out complex computer based tasks, but this does not always impart the requisite understanding of their device to constitute knowledge. Interacting with applications on a computer is only half of the issue; it is the underlying changes on the operating system, triggered by the users actions which require true computing knowledge in order to fully understand. Many complex tasks require knowledge of that particular domain or system area. Possessing this knowledge does not mean that an in-‐depth knowledge of other system areas is present with the defendant. This means that when considering the defendant’s knowledge as part of the possession test, files found in different areas of the computer operating system require varying levels of consideration. There are a number of particularly contentious computing areas; the most prominent are arguably deleted pictures and files stored within the Internet browser cache479 along with the difficulties caused by
online ‘pop-‐ups’ as demonstrated in the case of Harrison480. Each of these areas arguably
require varying standards of computing knowledge to understand the function of a computer system and in turn be in possession of images.
Clough also states that what is termed, as ‘de facto’ custody must be considered. Highlighted in the case of Canadian case of Daniels481, de facto custody describes a situation where
although not in actual physical possession of an article, the defendant in question is the sole possessor of knowledge needed to gain access to them482. A common example would
involve the use of encryption to obfuscate data where the defendant only knows the password. The Regulation of Investigatory Powers Act 2000 now governs this scenario. These scenarios raise significant issues when applying a test of possession to IDCSA and all are discussed in detail in Chapter 5.